Final Order 1

Order Details: Copy of Judgment
Pdf Text: MHCC010055042018 Received on : 20.04.2018
Registered on : 01.11.2018
Decided on : 21.12.2022
Duration : Y04:M08:D01:
Exhibit :
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
MISC.APPEAL NO.409 OF 2018
(Equiry No.MW/53/Estate Of 2017)
Shri. Devdas Shashikant Sawant,
Age : 39 Years, Indian Inhabitant,
Occupation : Service,
Legal heir of Shashikant S.Sawant,
Original Respondent,
R/at : Room No.10, Block No.E,
Ground Floor, 100/378 Tenement,
Khardeo Nagar, Ghatla, ... Appellant/
Mumbai – 400 071 (Org.Respondent)
Versus
1. Enquiry Officer,
MWard, Municipal Office,
Behind Natraj Cinema,
Chembur, Mumbai – 400 071.
2. Municipal Corporation of Greater Mumbai,
(Through Estate Department “M” Ward”)
“M” Ward Mahapalika Building,
Sharad Acharya Marg, Chembur, ... Respondents/
Mumbai – 400 071. (Org.Applicants)
CORAM : H.H.THE PRINCIPAL JUDGE
SHRI A.SUBRAMANIAM(C.R.No.19)
DATED : 21st DECEMBER, 2022
Ld.Counsel Zubin Dalal @ Adv.Abhay Parab for appellant.
Ld.Counsel Dharmesh Vyas @ Adv.Som Sinha and
Adv. Vidya Vyavhare & Adv.Gajanan Giri for Respondents/BMC.
-- 1 of 17 --
: 2 : UDGMENT IN MISC.APPEAL409/2018
ORAL JUDGMENT
1. By the present appeal, the appellant is challenging the eviction
order passed by the learned Enquiry Officer of opponent No.2.
2. It is the case of the appellant that the findings of the learned
Enquiry Officer are perverse. The learned Enquiry Officer erred in
holding the premises to be a service quarter and failed to
appreciate that it was to be converted into ownership basis and
rent was being regularly paid. It was further pointed out that the
learned Enquiry Officer has failed to appreciate that the
government of Maharashtra has declared SRA Scheme and area is
declared as a ‘slum’. The learned Enquiry Officer has not
considered the judgment passed in Writ Petition No.1165/2012.
The learned Enquiry Officer ought to have considered the LOI
issued by the SRA authority and it covers the area of the
premises. The learned Enquiry Officer ought to have considered
the issuance of Census slip. The learned Enquiry Officer ought to
have considered the aspect of letter issued to the Chief Promoter.
The learned Enquiry Officer ought to have considered the
observations made in paragraph 56 in Writ Petition No.1457 of
2010. The learned Enquiry Officer erred in holding that the
appellant was required to hand over the premises. Based on these
grounds and grounds stated in the appeal memo, the impugned
order is challenged.
3. Heard learned counsel for the appellant who vehemently argued
the above contentions and pointed out and also proceeded to
point out various documents to allege that the premises was not
staff quarters and also there are various assurances and
submissions that the property will be redeveloped and the
-- 2 of 17 --
: 3 : UDGMENT IN MISC.APPEAL409/2018
appellant would be provided occupancy on ownership basis. The
Corporation is going back on the said assurance and hence it
cannot be accepted. HRA is given, rent is separately collected by
the Corporation, salary slips show payment of house rent
allowance and thus it is not a staff quarter. The Leave and License
Agreement is not complied and followed so much so that it
contemplates free of occupancy charges and recovery of amount
was from the salary. Thus, the alleged Leave and License was
never implemented and does not hold good. The premises is now
declared as a slum and hence Provisions of Section 105(b) of the
MMC Act is not applicable. There are number of documents to
show the assurances given by the Corporation of converting the
premises on ownership. The premises of the appellant is included
in slum. There is letter of intent given for development of the said
property. The service tenements/occupants are included in the
slum area. The Hon'ble High Court has considered these aspects
and directed the developer of the slums to develop as per law.
There are directions given to the Corporation to prepare the list
of AnnexureII and same is not complied by the Corporation with
malafide intent. The slum authority is the final authority and
considering the circumstances, the order is required to be set
aside.
4. Heard learned Counsel for the respondents, who vehemently
argued that the Corporation's property cannot be disposed off
without following due process. He also relied upon the findings in
the same Writ Petition and submitted that the Hon'ble High Court
has held that the appellant has no right to retain the property and
their occupation was by way of service tenancy. He further
pointed out that the property of the Municipal Corporation is not
-- 3 of 17 --
: 4 : UDGMENT IN MISC.APPEAL409/2018
included in the slum area and if at all the authority is required to
consider it, it is to acquire the same and no such proceedings
have been initiated. It is further pointed out that the Corporation,
has in terms of the orders passed by the Hon'ble High Court, has
no objection for allotment of tenements to the developer out of
the saleable area and same cannot be from the share of the
Corporation. The appellant has long retired and ceased to be in
service of the Corporation and hence the occupation of the
premises is without any authority and the findings of the learned
Authority cannot be found fault with, hence the appeal be
dismissed.
5. Perused the impugned order, record and proceedings, appeal
memo and considered the submissions and 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 occupation of the appellant
is of the nature of unauthorised
occupancy?
In the
Affirmative
2. Whether the appellant is entitled for
protection in view of the floating of SRA
project?
Does not arise
3. Whether the impugned order requires an
interference?
In the
Negative
4. What order? As per final order
REASONS
As to Point No.1:
6. At the outset, both the parties have relied upon the judgment in
the matter of More Jeevan Yashwant and Ors. Vs. The Mumbai
-- 4 of 17 --
: 5 : UDGMENT IN MISC.APPEAL409/2018
Municipal Corporation and Ors. (06.01.2017 BOMHC)
reported in MANU/MH/0125/2017 . It would be thus very
appropriate to consider the grounds taken in the said proceedings
and also the findings of the Hon'ble High Court in the said
proceedings. The facts gathered and as stated in the judgment of
the above cited case can be compiled as under :
"This petition involves Plot CTS Nos. 41, 42, 72, 73, 84,
85 and 86 situate at Ghatla Municipal Colony,
Khardeonagar, Chembur, Mumbai 400 071. Though the
petitioners claim to be exemployees, a statement is made
in the petition in para 2 that they are either exemployees
or slum dwellers, who are photopass document holders.
…..
5. We must, at once, clarify that we are dealing with the
claims of exemployees of the Mumbai Municipal
Corporation, who have approached this court on the
footing that there is a representation from the Municipal
Corporation to them that their occupancy would be
converted on permanent tenancy/ownership basis and in
terms of certain decisions taken by the Municipal
Corporation……..
7. This petition is founded on the basis that though the
exemployees and who have been allotted quarters and
accommodations, styled as "staff quarters", ordinarily
have no right, title and interest in the same, yet, going by
the representation to these persons that their tenements
would be converted into ownership or permanent tenancy
that they have a right to apply and for being considered
along with similarly placed municipal employees or ex
employees of the Municipal Corporation. That is how they
claim a vested or preexisting legal right, ............It was
also clarified that these tenements were not staff quarters.
They were not given to the employees as service tenements,
but were allotted on leave and licence or rental basis. The
tenements were not related to the service
conditions.............It is claimed that terminal benefits and
particularly gratuity and pension are not a bounty, but a
right. That has corelation with the services rendered.
-- 5 of 17 --
: 6 : UDGMENT IN MISC.APPEAL409/2018
These services have been rendered to the complete
satisfaction of the municipal authorities. None of these
employees had been visited with penalties or other
punishments, which would enable withholding their
terminal benefits. The terminal benefits are withheld only
because of their alleged wrongful possession of the
municipal tenements. It is complained that withholding of
these terminal dues works as double jeopardy in the sense
that the petitioners cannot afford a housing
accommodation in Mumbai. Secondly, the rentals being,
as they are, even they cannot be paid in the absence of the
terminal benefits being released and in the form of money.
Thirdly, some of these persons, who are old and
incapacitated, cannot support themselves in the absence of
these terminal benefits, some of which are admissible
monthly. .....
46. Lastly, what remains for consideration is the second
contention of Mr. Nayak. They would submit that
withholding of terminal/retiral benefits is in the nature of
penalty or punishment. Merely because the premises have
not been handed over, these terminal benefits cannot be
withheld is the argument. The entitlement to retired or
terminal dues has no relation and is not connected with
the conduct of the petitioners post retirement. Pension and
gratuity etc. are rights flowing from rendering of
satisfactory and complete services and therefore, there is
no mandate in law to withhold the pensionary benefits is
the further submission."
7. Thus, if one considers these facts and the grounds advanced, it is
apparent that all the contentions and grounds raised herein as
regards service tenancy and also of alleged assurance of grant of
ownership tenements were raised before the Hon'ble High Court
in the above petition. Thus, the findings of the Hon'ble High
Court in the above petition relate to the same facts and issues and
also relate to the same property. In such circumstances, the
findings are required to be considered and they are as under;
-- 6 of 17 --
: 7 : UDGMENT IN MISC.APPEAL409/2018
" 38. For properly appreciating the rival contentions, we must
first clear the factual background. We must clarify at once
that this is not a case of those persons who are in occupation
of municipal properties and premises because they are
displaced by a public project and therefore, styled as project
affected persons. They are not the dishoused occupants of
municipal premises because such premises have become unfit
for human inhabitation by passage of time. These are ex
municipal servicemen or employees, who have retired from
municipal services. During their tenure, they were allowed to
occupy the municipal premises on account of the specific
orders of allotment. The terms and conditions of this
allotment are clear. Even if the allotment of municipal
premises in favour of the employees is on leave and licence
basis or in lieu of the Housing Rent Allowance, still, the
nature of occupancy remains the same. This occupancy does
not create any right, title or interest in the municipal
property, which is a public property.
39. It is high time that we clarify that those in possession of
public property have no right to continue in their possession
and occupation. The municipal servants must realise, like
others, that they are public servants. The Municipal
Corporation must realise that it is a trustee of the public
property. They do not have authority to dispose of these
properties as if they belong to them exclusively. They are
made over to the municipalities for municipal administration
and governance. Therefore, the local authorities and
Municipal Corporations are as much bound by the mandate
of Article 14 of the Constitution of India, as these employees.
This court cannot perpetuate an illegal act by its writ. Equal
protection of the law postulates that those not entitled to any
relief based on a right cannot continue to insist on the same.
Once a leave and licence arrangement in law does not confer
any right, title and interest in the property, much less of
tenancy, then, we do not see how the Municipal property,
coming in the petitioners' possession during the course of
their services, places them in a different class. They are
comparable with those municipal servants to whom
municipal premises are allotted in lieu of payment of House
Rent Allowance. The House Rent Allowance is paid because
those occupying their own or rented premises should be in a
-- 7 of 17 --
: 8 : UDGMENT IN MISC.APPEAL409/2018
position to bear the monetary liability. In some cases, the
salary is not enough to meet these expenses and therefore,
such schemes, namely, payment of House Rent Allowance or
grant of housing accommodation in lieu thereof, are proposed
and implemented. These schemes are implemented so as to
assist the municipal employees and public servants and in
return, it is expected that they render efficient and prompt
services. The municipal services are rendered to fulfill the
mandate of the constitution of India and Sections 61 and 63
of the MMC Act. We need not highlight as to what are the
duties of the Municipal Corporation and its functions. There
is enough indication in that regard in the MMC Act itself.
That contains both, the obligatory and discretionary duties.
Eventually, all municipal services are rendered for the welfare
and benefit of the residents of the city. .......None can,
therefore, take a decision to handover municipal properties to
anybody save and except in accordance with law. No
provision has been brought to our notice in the MMC Act,
which obliges the Municipal Corporation to make a provision
for housing its retired employees. Therefore, there is no
statutory right, which can be claimed in such matters..........It
has been pointed out that though the allotment is made on a
specific condition that the allottee is in municipal service and
therefore, he would be required to comply with certain
conditions, including executing an agreement and
undertaking to handover the premises. ................We have
carefully considered a policy and which has been stated to be
in force, which is for allotment of staff/service quarters.
Rather, they are the rules of allotment. It is the entitlement of
employees, who have put in 10 years service and their
eligibility for allotment of the staff quarters, which is placed
in the forefront, but the allotment is conditional. The
allotment will be on the basis of seniority in service, taking
into account the date of joining the service. The allottee
should execute a leave and licence agreement. Pausing here, it
is apparent that the allotment of municipal properties or staff
quarters to municipal servants is under these rules. The
manner in which the allotment is made is set out and that
envisages a leave and licence agreement as per the
instructions prevailing at the time of the agreement. That
fortifies the position that the licencee has no right, title and
interest in the premises. The licence fees have to be paid by
-- 8 of 17 --
: 9 : UDGMENT IN MISC.APPEAL409/2018
him. He would render himself liable to departmental action
under the Municipal Service (Conduct and Discipline) Rules
for violation of the conditions of allotment. The allotment is
of a residential tenement. It is for residence of the employee
and his/her family members. Their names have to be listed in
the leave and licence agreement. Thus, this is a residential
accommodation and granted for residence of the employee
and his/her authorized family members. The terms and
conditions indicate as to how possession of this tenement
shall be immediately surrendered to the concerned Ward
Officer on ceasing to be a municipal employee. Thus, it is not
as if post retirement until his/her obtaining a private
accommodation that he can retain the municipal
premises. ..........What we have noted from these circulars is
that when such authorities are empowered to take a harsh
decision, then, all the more allowing the petitioners to retain
the tenements, despite ceasing to be in service and retiring
decades back would, as rightly contended before us by the
Corporation, be putting a premium on their wrongful and
illegal acts. No premium attaches to such patent illegality.
We cannot, in the garb of any sympathetic considerations,
allow retention of the municipal staff quarters. What we have
further noted is that there are resolutions passed from time to
time. ..................The Commissioner's letter, copy of which is
placed before us in this compilation, indicates as to how there
is acute shortage of accommodation. He has, in his detailed
letter addressed to the Government, pointed out that all these
persons while entering the municipal service have undertaken
to vacate the municipal tenements on ceasing to be in
municipal services. Such undertakings and agreements are in
force. These agreements have certain sanctity and a legal
efficacy. The Municipal Corporation is right in insisting that
they abide by their undertakings and voluntarily surrender
the premises in their possession to the Municipal
Corporation. Thus, his case was that by accepting all the
terms and conditions, the benefit is obtained in the form of
allotment of staff quarters and municipal premises. The
Municipal Commissioner points out that in the last five
decades or more, new premises could not be constructed by
the Municipal Corporation. It is not possible to obtain any
vacant land or property for construction of new houses. What
he has highlighted is that even if there are Improvement
-- 9 of 17 --
: 10 : UDGMENT IN MISC.APPEAL409/2018
Committee and General Body recommendations from the
year 1989, there is huge wait list of the municipal employees
awaiting allotment of municipal accommodation. If the
existing premises are handed over on permanent
tenancy/occupancy, then, this wait listed employees can
never be provided any municipal premises. Thereafter, he
highlights as to how municipal governance is the primary
duty and responsibility of the Municipal Corporation. The
Municipal Corporation serves the residents and members of
the public. The Municipal Corporation is a public body. Those
joining the services of the Corporation and later on retiring
from the services would never surrender or handover the
municipal premises in their occupation. That would set a bad
precedent. The Municipal Corporation's premises and
particularly those vacant lands, which are reserved for
construction of residential structures, have been encroached
and it is very difficult to obtain vacant possession thereof. It
is in these circumstances and when the municipal employees
obtain municipal houses, which are public properties, for
their residence, it is their bounden duty to hand them over to
the Municipal Corporation after their retirement. Converting
them into permanent occupancy would defeat the larger
public interest. These nine important points, which he has
highlighted in a detailed letter addressed to the State
Government may have been noticed, but no action one way
or the other has been taken thereon. However, based on that,
no right can be claimed by the petitioners.
In the present case, what we find is that there is no blanket
refusal to release the terminal benefits. There is a deduction
effected therefrom and relying on the circulars of the
Municipal Corporation, empowering the Commissioner to do
so. That the Commissioner resorts to this circular provided he
is satisfied that there is wrongful retention of the premises by
retiring employees and those superannuated from municipal
services. They have not obtained any right independent of
their status as employees of the Municipal Corporation and
rendering municipal services, which would enable them to
retain these premises. If there is no specific order converting
their occupancy into permanent tenancy or otherwise on
ownership basis, then, they must hand over these premises,
else, they must face the deduction. Even the deduction is to
-- 10 of 17 --
: 11 : UDGMENT IN MISC.APPEAL409/2018
the extent of 10% and the balance sum is adjusted towards
the rent, which can be charged for such illegal and
unauthorised occupancy. The rules and regulations in that
behalf are clear. The conditions of allotment envisage that in
the event the municipal premises are not handed over within
a period of three months after cessation of service, then, the
Municipal Corporation can charge monthly rent, which can
be determined at the prevailing market rate. It is only in
specific contingency such as medical condition and ailment of
the employee concerned that a concession is granted, but that
extends the period of occupation to six months. After that, the
same conditions follow. In the event of sudden and
unfortunate death of an employee in service as well, some
concession is extended. However, if charging and payment of
the increased rent is the obligation and that has to be paid
for this extended occupation, then, we see no justification in
the petitioners' complaint. They cannot complain that the
recoveries cannot be effected from them for such retention or
illegal occupation. They would thus be benefited by all retiral
benefits being handed over and they would, in turn, continue
in possession wrongfully. They would continue to retain the
premises and yet obtain full terminal benefits. That is
certainly something which must be taken note of.
53. We made it clear to the petitioners' counsel that in the
event the petitioners are ready and willing to handover
peaceful possession of their premises within a specific time
period, then, the recoveries and as threatened against them
may not come into effect. There would be no further
deductions or if there is any balance payable post such
deduction, it would be released. We have not found any
petitioner voluntarily coming forward and to give such an
undertaking to this court.
We are, therefore, constrained to pass a conditional order in
that regard.
54. We, therefore, direct that if such of the petitioners, who
surrender and handover peaceful possession of their premises
(municipal premises in their possession) within three months
from today, the Municipal Corporation shall not make any
further deductions, but release all the balance sums due and
payable with proportionate interest to such employees. In the
-- 11 of 17 --
: 12 : UDGMENT IN MISC.APPEAL409/2018
event the petitioners do not handover the premises within this
period and continue to retain them, then, all consequences in
law shall follow. Meaning thereby, the Municipal
Corporation can proceed with its action under section 105B
and other provisions of the MMC Act and recover penal
rent/damages/compensation as well. That can be recovered
by attaching movable and immovable properties of the
occupants."
8. Thus, if one considers the above findings, the Hon'ble High Court
has very clearly held that the occupation is by way of service
tenancy and as occupants had ceased to be in service, they cannot
continue to occupy the premises. The appellant does not dispute
the fact that the said petition was by society protecting his rights.
The Hon'ble High Court on Bombay has very clearly stated that
the appellant can be proceeded as in this case by the Corporation.
Thus relying upon the said contention and facts, it is apparent
that the appellant has no right to continue with the occupation of
the premises after ceasing to be in service. Thus, in such
circumstances the findings of the learned Authority holding the
appellant to be unauthorised occupant cannot be find fault with
and it is seen that the appellant is unauthorised occupant of the
said premises. Hence, I answer the point no.1 in the affirmative.
As to point No. 2:
9. This relates to the declaration and implementation of a Slum
Rehabilitation Scheme by the State Government under the said
Act. At the outset the right acquired if any under the provisions
of the Slum Act are separate than the contractual rights. On
perusal of the said scheme, on face of it, it specifically
contemplates and leaves aside the property of the Corporation
from the ambit of the scheme. It also empowers the authority to
-- 12 of 17 --
: 13 : UDGMENT IN MISC.APPEAL409/2018
acquire the land which is such excluded and included under the
scheme. Thus, if at all the appellant wants to avail this benefit, he
has to establish that the land is under the slum scheme. The
jurisdiction to consider such aspect is with the said authority. The
issuance of census pass or slum photo pass may not be of
consequence for this proceedings. It is also part of record that the
Corporation has been asked to prepare AnnexureII. Needless to
say all these activities and functions are under the purview of the
Slum Rehabilitation Authority. The Judgments and directions in
this regard relating to the Slum and hence not considered by me.
At present we are considering the private relationship between
the employeremployee and the right of the Corporation in that
regard. I shall not deal with the right of the appellant with regard
to the Slum Rehabilitation Scheme and its applicability if any. It
is for the Competent Authority to decide the same. Needless to
say that it does not disentitle the Corporation at present from
executing the eviction of the appellant on the right which they
have at present and which is accrued in their favour. Needless to
say it would be appropriate to reiterate that the Corporation has
in this proceeding also reiterated they have no objection for
allotment of tenements out of saleable units or area of the
developer. Considering the circumstances I hold that point No. 2
cannot be considered or is required to be considered for
adjudicating the present proceedings. Hence, I answer the point
No.2 as does not arise for consideration.
As to Point No.3:
10. The learned Enquiry Officer has considered the aspect of its
tenancy in service tenancy as well as the Writ Petition No.
957/2013 in proper perspective. The learned Enquiry Officer has
-- 13 of 17 --
: 14 : UDGMENT IN MISC.APPEAL409/2018
considered the right of occupancy as well as the ceasing of
services of appellant with the Corporation. The learned Enquiry
Officer has also examined the aspect of applicability of the Slum
Rehabilitation Scheme in correct perspective. The premises are
validly required to accommodate various staff members and
essential services personal and has rightly held that the appellant
is in unauthorised occupation of the said premises as
contemplated Under Section 105A(d) of the MMC Act. The
learned Enquiry Officer has also considered the issuance of Quit
Notice. The learned Enquiry Officer has also considered the
clause namely Condition no.6 of the said Leave and License
Agreement which contemplates vacating the premises, when the
employee ceases from Municipal Services. Considering the same,
the findings of the learned Enquiry Officer are in consonance with
the facts available on record and the same does not require any
interference. Hence, I answer the point No.3 in the negative.
11. The facts and law points raised in this appeal and other group of
200+ appeals are same and common arguments were advanced
in all and hence decided by this common judgment. For the sake
of avoiding repetition of all the casetitle, each judgment is placed
separately in each matter with corresponding title. Hence, I pass
the following order.
O R D E R
1. Misc.Appeal is dismissed.
2. Time is granted to the appellant to vacate the premises till
28/02/2023 subject to appellant filing an undertaking before this
Court within 4 weeks from today that the appellant is in physical
occupation of the premises and that appellant will not create any
third party interest in the said property and further appellant will
honour the order of the learned Enquiry Officer on its attaining
finality.
-- 14 of 17 --
: 15 : UDGMENT IN MISC.APPEAL409/2018
3. If the above undertaking is not filed within the stipulated period,
the execution can be proceeded with.
4. Record and proceedings be returned to the Respondent no.2/
BMC.
21/12/2022 (A.SUBRAMANIAM)
PRINCIPAL JUDGE,
CITY CIVIL COURT, MUMBAI.
(JO CODE MH01711)
Dictated on : 21/12/2022
Transcribed on : 02/01/2023
Signed by HHJ on : 03/01/2023
-- 15 of 17 --
: 16 : UDGMENT IN MISC.APPEAL409/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
04/01/2023 5.00p.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. 21.12.2022
Judgment/order signed by P.O on 03.01.2023
Judgment/order uploaded on 04.01.2023
-- 16 of 17 --
: 17 : UDGMENT IN MISC.APPEAL409/2018
-- 17 of 17 --