Final Order 2

Order Details: Copy of Judgment
Pdf Text: ... 1 ...
MHCC010056252018 Presented on : 25.04.2018
Registered on : 26.04.2018
Decided on : 01.02.2024
Duration : 05 09 09
Years Months Days
Exh……
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY AT BOMBAY
MISCELLANEOUS APPEAL NO. 161 OF 2018
(CNR NO. MHCC010056252018)
Mr. Shivaji Keshav More
Age : 66 years
Room No.05, Chawl No. J/08,
S.G Barve Nagar, Ghatkopar (West),
Mumbai 400 084. …. Appellant
Versus
1. Municipal Corporation of Greater
Mumbai
(through the Municipal Commissioner),
Mahanagar Palika Road,
Opposite CSMT Station,
Fort, Mumbai 400 001.
2. Mr. Kisan Govind Dharade
Administrative Officer
Estate Department,
N-Ward, MCGM, 3rd Floor,
Jawahar Road, Ghatkopar (East),
Mumbai 400 077.
3. Mr. J. K. Kadam
Enquiry Officer,
N-Ward Office, MCGM, 3rd Floor,
Jawahar Road, Ghatkopar (East),
Mumbai 400 077. …. Respondents
-- 1 of 34 --
... 2 ...
CORAM : HIS HONOUR THE PRINCIPAL JUDGE, SHRI
A.SUBRAMANIAM
C.R.NO..
: 19
DATE : 01st DAY OF FEBRUARY, 2024
Appearances :-
Adv. Rajendra Pai a/w Adv. Aloukik Pai, Adv. Akshay Pai and Adv. Maansi
Gupta, Learned Counsels for the appellant.
Adv. Dharmesh Vyas a/w Adv. Som Sinha, Adv. Sunil Khandagale, Adv.
Krisha Dedhia and Adv. Pratik Shetty, Learned Counsels for the
Respondent/BMC.
ORAL JUDGMENT
1. By these set of appeals the appellants are challenging the order
passed by the Ld. Competent Authority with regard to the
eviction proceedings initiated against them.
2. All these group of appeals were argued commonly as there are
common questions both of facts and of law. The said set of
appeals deal with premises occupied by the ex-employees of the
Corporation (MCGM). The only differentiating fact in all the
appeals are the names of the employees, their designations, their
date of retirement/death. The distinction is namely name, date
and reason of determination of their employment with MCGM
which does not affect the merits of the claims raised. It is not in
dispute that all the appellants are holding premises by virtue of
erstwhile allotment as employees of the Corporation. It is also not
in dispute that all the appellants are either the employees whose
services are determined due to retirement or termination of
services and/or are legal heirs of the employees who have died
during their employment/post retirement.
3. It is the case of the Corporation that the Corporation raised claim
that the tenement was allotted to the appellant/erstwhile
-- 2 of 34 --
... 3 ...
occupant because of his services and that they are in
unauthorized occupant because the services are no longer utilized
by the appellants and accordingly notices was served. It is also a
fact that ‘common contents’ reply in all proceedings were given .
It is contended that the premises are allotted on leave and license
basis and the employee was paying the rent. It is further
contended that the pensionary benefit was released by
withholding 1/3rd of Gratuity and the vacant possession of the
tenement is not necessary as per the letter and order of the
Corporation dated 25.01.2000. It is further contended that there
is proposal for conversion of ground floor structure on leave and
license basis into ownership basis put up by the Municipal
Corporation on 04.07.1989 and 07.05.1989 and it was approved
on 10.08.1989 by the Corporation by resolution dated
01.09.1989 and the tenements in ground structure at Mitha
Nagar and three others are to be handed over to the Co-operative
societies of the employees. The tenant association of Mitha Nagar
and other colonies were formed and society is also formed and
proposal and layout is also approved by Corporation. In meeting
dated 03.05.2017, the Corporation has been directed to consider
that the Municipal tenements were allotted on leave and license
to the employees of the Corporation. The appellant is staying for
long period and has no other accommodation hence the entire
aspect should be considered sympathetically.
4. In pursuance thereto, administrative officer was examined and
some documents were also relied upon. There is another letter
dated 05.12.2017 given to the Enquiry officer wherein it is
contended that the Hon’ble Chief Minister has directed
amendment of DC Rules 33 (7), to enter into agreement with the
-- 3 of 34 --
... 4 ...
affected occupants if re-development takes place and the State
Government will support in direct confirmation of amendment to
DC Rules 33 (7) and hence the occupation is unauthorized.
5. The appellants also said to have filed their evidence affidavit and
cross examined. It is also noted that oral arguments were
advanced and after hearing both the sides the impugned order is
passed. Hence, the present set of appeals. The above recourse
taken by the Competent Authority is said to be common in all the
appeals except some cases, some discrepancies are noted. Suffice
to say that the contentions raised therein would be the basis of all
appeals. These set of appeals deal with different groups namely
Mitha Nagar Goregaon, Barve Nagar Ghatkopar and V. P
Municipal Colony Vikhroli.
6. There is application filed under Order XLI 41 Rule 27 of the Code
of Civil Procedure (CPC) for additional documents. There is no
reply to the said. Considering these aspect, the appeal is being
considered.
7. Heard extensively the Ld. Counsel fo the appellants. Although,
the appeal was said to be argued on two parts of different areas,
apparently the facts are considered with regard to the named
area since inception and hence the other part of the property or
group of appeals are lesser placed in that regard. No prejudice or
loss would be caused if the better placed area is considered for
decision of these appeals .
8. The grounds of challenge by the appellants to the said impugned
order is that there is no proper Enquiry. There are complex issues
involved, there is trappings of civil trial and all principles of Civil
Court are to be followed. The principles of Natural Justice are not
adhered to. There should be no bias or even apprehension of bias.
-- 4 of 34 --
... 5 ...
It is an slipshod Enquiry and basic procedure of Enquiry is not
followed. There is distinction between the order passed in the
Writ Petitions of Jeevan More and the present proceedings. Even
the Hon'ble High Court of Bombay in the case of Jeevan Yashwant
More and Ors V/s Mumbai Municipal Corporation and Anr (Writ
Petition No 957 of 2012). has directed enquiry is contemplated
under Section 105-B of the MMC Act. Considering this, a fair and
proper Enquiry is must. The premises are not corporation
quarters as there is different budgetary provision. Section 92
contemplates grant of lease property to a Co-operative Housing
Society of these officers and servants of the Corporation. Section
64 makes Commissioner responsible for implementing the
resolution of the Corporation. The State Government has only 45
days to consider the reference by the Commissioner against the
resolution and if the Commissioner’s contention is not decided
within that period, there is automatic rejection of the reference.
Thus, it is mandatory on the Commissioner to accept the same.
The entire matter relates to lifetime living of the concerned
appellants and involves complex issues and no legal assistance
was provided. No examination or cross examination is permitted.
In fact, a questionnaire was provided and asked for and selective
questions were accepted. Thus, there is clear cut bias and
improper service. The said authority being an Officer lower to the
rank of Commissioner, he cannot say that the Commissioner is
wrong and thus there is an institutional bias present in the said
facts. The action was taken as contemplated for providing the
accommodation and accordingly improvement committee and
the General Body also passed appropriate resolutions in that
regard. The aspect of recommendation was conversion and
-- 5 of 34 --
... 6 ...
scheme of leasing to Co-operative Society. There is repeated
correspondence of converting and formation of Co-op society and
approval of proposals to the said society. In the year 1990 in
furtherance of consideration, 1/3rd of Gratuity amount was
deducted at the time of retirement. The entire line took a new
turn in the year 2007 when the Commissioner Jayraj Phatak
refused to acknowledge and proceed with said scheme and made
negative reference. Moreso, the Government took action after the
Special Leave Petition (SLP) was decided and said resolution is
not turned down. There is concluded contract so much so that the
terms are agreed upon and so the premises are being held by part
performance under Section 53-A of the Transfer of Property Act
(hereinafter referred as T.P. Act) The aspect of deduction of
gratuity is not considered by the earlier judgment. They were
permitted to occupy the premises on payment of amount. The
corporation did not furnish all the documents. There is clear cut
policy decision that vacant possession is not necessary and it
cannot be branded as ‘unauthorized occupant’. On the same facts,
in other matter, pending trial, the matter was remanded for fresh
Enquiry. The sets of Petitions before the Hon'ble High Court
earlier. One related to Housing and second related to the
payment of dues of salary or retirement benefits. The findings of
the Hon'ble High Court are with regard to the said retirement
benefits and cannot be read as part of findings for allotment of
the quarters. The finding by Hon'ble High Court is erroneous so
much so that the deduction of 1/3rd Gratuity was not considered.
There is protection of possession as contemplated under Section
53-A of the Transfer of Property Act. The Commissioner was to
formulate a scheme and he granted provisional sanction. The said
-- 6 of 34 --
... 7 ...
resolution has given rise to ascertainable terms of contract and
accordingly members have acted upon the same by forming
society, giving layout plans, etc. The only reason for eviction is
said to be the judgment of Hon'ble High Court which is not
correct. Specific performance even if rejected, protection under
section 53-A of the Transfer of Property Act is not revoked. Even
in another proceedings, the Hon'ble High Court has directed
consideration of many issues by the concerned Court and
Competent Authority. The right under section 53-A becomes a
protective possessory right and thus it creates a bar for and valid
defence for unauthorized occupation as contemplated. The
Corporation has dishonestly avoided to honour the contract. The
consideration was fixed of 60 months or 100 months rent. There
is withholding of gratuity. The inquiries are beyond the period of
limitation and there is no pleading of limitation to consider the
same. The issue of limitation is an jurisdictional issue. Hence,
application is time barred. The entire Enquiry involves complex
issues and hence summary Enquiry by a Competent Officer is not
possible. Hence, considering all these aspects, it is contended that
the appeals be allowed and the order of eviction be set aside.
9. Common arguments were advanced by various counsels for
Respondent/Corporation wherein it is contended that these are
staff quarters and were given on leave and license basis. The said
occupation has been determined and hence the occupation is
unauthorized. The aspect of this conversion has been decided and
confirmed by the Hon'ble Supreme Court namely that the said
person has no right of claiming such occupation. The Judgment
of Hon'ble Supreme Court and Hon'ble High Court Maganlal
Chhagganlal (P) Ltd V/s MCGM and Ors (1974) 2 SCC 402 and
-- 7 of 34 --
... 8 ...
Bibi Batool Jafer Gulam Hussein V/s The Principal Judge City Civil
Court, Bombay AIR 1972 Bom 254. Clearly reflects the aspect of
institutional bias having taken into consideration while framing
the said procedure for eviction. The premises are to be handed
over. They have no right to occupy the said premises. It has been
so considered in the case of Jeevan More and SLP filed before
Hon'ble Supreme Court. By relying upon the case of Jeevan More,
in similar proceedings, the Hon'ble High Court of Bombay has
rejected the claim of the occupants and so also my Ld.
Predecessors and this Court have considered the said Judgment of
rejection of the same. Section 53-A of Transfer of Property Act is
not applicable as there is no agreement or transfer of the
premises. The principle of Promissory Estoppel is also not
applicable, neither is novation and was not raised before the
concerned Competent Authority. The procedure as contemplated
is followed. Right to cross examine and right to lead evidence was
given and after hearing the parties, detailed order is been passed.
There is no breach of principles of Natural Justice. The
Judgments in two other cases can be distinguished as they are
against interim orders passed. The resolution of the year 1989
cannot be implemented because of directions issued by Honble
High Court in the case of Jeevan More. Applicants/appellants
have not right to occupy the premises and hence the appeals be
dismissed. Considering the same, prayed for dismissal of the
appeals.
10. Perused the record and proceedings, the impugned order, the
appeal memo and considered the submissions, following points
arise for my consideration and I answer the same as under for the
reasons stated hereinafter;
-- 8 of 34 --
... 9 ...
Sr.
Nos POINTS FINDINGS
1 Whether the procedure adopted by
the Competent authority can be said
to be just and fair and in compliance
of principles of Natural justice and
fair opportunity was given to the
applicant ?
:: In the affirmative
2 Whether the appellants can be said to
be unauthorized occupants of the said
premises ?
:: In the affirmative.
3 Whether the impugned order requires
any interference ?
In the negative.
4 What order? :: As per final order.
REASONS
11. By application at Exh.4, an application under Order XLI 41 rule
27 of CPC has been filed. On consideration of the documents on
record and the purported documents intended to be filed, it is
necessary to point out that most of the documents, are part of
record being considered in the case of Jeevan More and
subsequent aspect of the Government orders are part of the present
record. Considering this aspect the application under Order XLI 41
Rule 27 of CPC is not really applicable to the facts of the said case.
The opinion of the Commissioner namely Jayraj Phatak
contemplates and accepts most of the contentions and so also the
petition and reply of the Corporation before the Honble High
Court. Thus, nothing survives so far as the documents earlier to the
Judgment of Honble High Court and as regards the documents
post judgment of Honble Supreme Court same are part of record.
Hence, the application is devoid of merits and is liable to be
rejected.
-- 9 of 34 --
... 10 ...
As to point No.1:
12. Various contentions have been raised with regard to the aspect
of not following the procedure and fair trial and violation of
principles of Natural Justice. Another aspect is of institutional
bias raised. At the outset, it is contended that some questions
were asked and some cross examination recorded. No objection
was taken before Competent Authority and there is nothing on
record to point out this aspect of selective cross-examination or
selective examination-in-chief. It is necessary to point out that
these are group matters involving common questions of law and
facts as pointed out earlier. Maybe these matters were considered
jointly in such a manner but certainly following this procedure
would not imply violation of principles of fair and Natural Justice.
Secondly, if one considers the record of the case, it is necessary to
point out that the matter of
Jeevan More itself contemplates that
this issue has been going on much before since 2008 wherein the
Khardeo area had initiated proceedings followed in the year 2009
of Brihanmumbai Upanagar Baithi Chawl in 2009. Even before
that on similar grounds a writ petition was preferred before
Hon’ble High Court bearing Writ petition No. 110 of 1983 and
was decided on 05.07.1990. Thus, the aspect and dispute in this
regard is going on from the year 1983 and lastly ( before the
105B proceedings ) the SLP has been decided on 01.05.2017.
Thus, all the occupants and the various persons including present
appellants were having legal recourse and representation till
2017. It is really surprising that subsequent thereto when the
present proceedings are initiated, after couple of years, a
grievance is made of lack of legal assistance to the appellants.
The appellants fought tooth and nail and managed to stay
-- 10 of 34 --
... 11 ...
proceedings of eviction for a long period under umbrella of
protection of various orders of the Court. Surprisingly, now
claiming that it is matter of non legal assistance is really a
factually wrong and incorrect contention raised.
13. The record shows that all the contentions of the parties are in
nature of documentary evidence and nothing is actually of oral
evidence or oral nature of documents. Thus, what is to be
contended and what is to be examined by competent authority is
the documents available on record and the contentions raised. In
such circumstances, the scarce nature of oral evidence advanced
cannot be said to be in violation of fair trial or violation of
principle of natural justice or even exclusion of evidence by the
concerned authority.
14. Much was said about the institutional bias. True that the
Commissioner has taken a decision of not to transfer the premises
or objected to the said scheme. Firstly the said two issues are
different namely service occupancy and giving of premises on
ownership . Suffice to say that there is Government authority
and the Corporation body to decide upon the same as per law
and provisions of MMC Act. The aspect of institutional bias has
been considered by the Hon’ble High Court in the cases of
Bibi
Batool Jafer Gulam Hussein V/s The Principal Judge City Civil Court,
Bombay AIR 1972 Bom 254. and Maganlal Chhagganlal (P) Ltd V/s
MCGM and Ors (1974) 2 SCC 402. wherein Hon’ble High Court
Bombay has considered the aspect of this institutional bias
coupled with aspect of appeal been provided before Senior Most
Judicial officer to balance any possibility injustice because of this
bias. In the case of Bibi Batool the argument wherein while
upholding the provisions, the Honble High Court considered the
-- 11 of 34 --
... 12 ...
aspect of the scope of Judicial Officer. The Honble High Court
says that when appellate officer is an Executive officer however
honestly and consciously he may act or take into consideration
departmental policy decisions and departmental talks because he
would not be trained to avoid even a subconscious impression
created by them. The judgment of B. B. Batool was considered in
the case of Maganlal Chhaganlal case by Honble High Court and
Honble Supreme Court of India also considered this aspect of
institutional bias and rejected it on the ground that there is a
proper remedy of judicial appeal placed therein. The Honble
Supreme Court considered the fact that ultimate decision is
therefore by Judicial officer trained in art and skill of law and not
by an Executive Officer. Thus, it is really difficult to appreciate the
bias-ness effected.
15. Even in the present case, if we consider the findings of
concerned Enquiry officer, nowhere it reflects the aspect and
relation of the decision of the Commissioner not to accommodate
existing retired employees for ownership scheme. The only scope
for appreciation by concerned Enquiry officer is seen to be limited
as to whether the nature of occupancy and whether it was
determined and consequences thereof. I do not feel that the
decision fo the Commissioner of not to give accommodation on
ownership basis has any effect in the present case. Considering
the same, there is no institutional bias at all. The judgments of
Ayaaubkhan Noorkhan Pathan V/s The state of Maharashtra and
Ors (2013) 4 SCC 465; New Insurance Co. Ltd V/s Nusli Neville
Wadia and Anr 2008 (3) SCC 279; Union of India and Anr V/s
K.C Sharma and Company and Ors (2020) 15 SCC 209; S.C.
Girotra V/s United Commercial Bank and Ors 1995 Supp (3) SCC
-- 12 of 34 --
... 13 ...
212.; Gajanan Shivram Lele V/s Dena Bank and Anr 2015 SCC
Online Bom 429.; relates to the aspect of cross examination and
apprehension of bias which are specifically dealt with herein
before and hence not applicable. Similar is the case of L. Chandra
Kumar V/s Union of India and Ors (1997) 3 SCC 261 with
relation to the bias. In such circumstances, I do not hold that
there was any institutional bias by the concerned officer as the
officer has not decided the claim because the Commissioner has
not accepted the policy.
16. If one considers the the Judgment of Vivek Gawde V/s
Municipal Corporation of Greater Mumbai and Ors (Writ Petition
No. 5983 of 2022) the Honble High Court of Bombay directed
that the premises of staff quarters, the aspect of unauthorized
occupation and determination and provisions of section 53-A of
Transfer of Property Act, the defence of section 53-A of the said
Act, institutional bias, State Government being proper party and
maintainability of summary proceeding are left to be decided by
concerned Competent Authority. Thus, the Hon’ble High Court
itself has considered that competent authority has competency to
decide these aspects and it is not merely a summary proceeding
as such as held in the case of the aspect of case being considered
equivalent to a civil trial has been given importance. The aspect
of complex questions before executive adjudicating body would
not arise in view of judgment of Honble High Court assigning
these issues to concerned officers itself as laid down and hence
the judgment of Government of Andhra Pradesh V/s Thummala
Krishna Rao and Anr (1982) 2 SCC 134.; State of Rajasthan V/s
Padmavati Devi by Lrs. And Ors 1995 Supp (2) SCC 290; State of
U.P and Anr V/s Zia Khan (1998) 8 SCC 483; Express Newspapers
-- 13 of 34 --
... 14 ...
Pvt Ltd and Ors V/s Union of India and Ors (1986) 1 SCC 133; Sir N.P.
Vakil Trust and Anr V/s Union of India 2016 SCC Online Bom 4913
Would not be applicable. On similar counts the judgment of
Gajanan Shivram Lele V/s Dena Bank and Anr 2015 SCC Online
Bom 429 and State of W.B. and Ors V/s Shivanand Phatak and
Ors (1998) 5 SCC 513 would not be applicable in view of specific
enunciation of law laid down in the judgments applicable in the
facts of the present case.
17. In such circumstances, I hold that even such issues as raised
herein have been considered as such in the present proceedings.
18. Hence, if we consider the procedure adopted, the process
followed, it is meant for speedy, efficacious and faster remedy. In
such circumstances, the process followed by the concerned
Competent Authority cannot be found fault with.
19. Hence, I answer point No. 1 in the affirmative.
As to Point No.2:
20. The main contention in this regard relates to the aspect of
scheme of handing over of the premises on ownership basis to the
occupants.
21. Even from the appeal memo, the record available and the
defence taken before Ld. Trial Court, it is clear that the premises
at inception were given by way of an allotment letter on the basis
of leave and license in lieu monthly compensation 10 % of the
salary. An application for allotment has been considered to be
given prior to allotment and fulfilling details. Thus the facts
remains and is established that the appellants entered the
premises legally as allottee of the MCGM on basis and reason of
their employment.
22. The main issue or grievance or defence also is the letter issued
-- 14 of 34 --
... 15 ...
by the Administrative Officer No. 34213 dated 25.01.2000. It
contemplates that the leave and license agreement is on the
condition that it is imperative on the part of employee to vacate
the room after his retirement. Thus, if one considers this aspect
vacation of room on retirement and occupancy of the said
tenement during tenure of service and given in consideration of
service as a criteria for allotment qualifies the tenancy to be a
service tenancy.
23. Much was harped upon the aspect that premises were
constructed out of different budgetary provision than provided
for service tenancy. It would be in my view a different aspect
altogether. The method of allotment of tenancy to the tenant or
occupant is important for this purpose and not the source of
funds required fir construction. Leave and license agreement as
well as allotment letter and the letter of 34213 clearly
contemplates that permission to occupy tenancy was directly as a
result of being in service with the BMC and during the tenure of
such service only. Thus, it is necessarily a service tenancy and it
would be irrespective from what funds the said premises were
constructed. Thus, that contention is also irrelevant.
24. As regards the core issue of transfer of said occupation rights to
ownership rights. It is an admitted fact that such aspect was
under consideration of the Corporation. It was considered
positively for a long period much so till 2007. Although, there
was opposition and support during that period to said contention
it received its final blow when the said Commissioner did not
accept the resolution of the Corporation and forwarded to the
Government. It is necessary to point out that till this aspect the
contentions raised therein are part and parcel of the earlier
-- 15 of 34 --
... 16 ...
litigation between the society and the parties. It is necessary to
point out that the aspect of these conditions of occupancy is not
denied.
25. What is contended is that because of the letter of 34213 some
different provisions have come up. I shall consider that aspect
subsequently. The main connecting ground of contention of
section 53-A of the T.P Act also requires consideration. In the
Judgment of Shrimant Shamrao Suryavanshi V/s Pralhad
Bhairoba Suryavanshi (2002) 3 SCC 676 the Honble Supreme
Court of India has laid down six conditions to invoke the
provisions of Section 53-A of the T.P Act. The first condition is
that there must be a contract for transfer of consideration of
immovable property. Second condition is that the contract must
be in writing and signed by the transferor or someone on his
behalf. Third condition is that writing must be in the word from
which the terms necessary to construe the transfer can be
ascertained. Fourth, the transferee must in part performance of
the contract take possession of the property. Fifth, some act
should be done in furtherance of the contract and sixth must have
performed to be willing to perform his part of the contract.
26. If one considers the entire ambit of the arguments, it is
necessary for the appellants to satisfy these conditions. As regards
the first two conditions, admittedly there is no specific agreement
or contract between the corporation and the said appellants or
party thereof. It is hence argued that the agreement or contract
should not be construed in its strict sense but the correspondence
and acts of the parties should be termed as an agreement as such.
It is therefore necessary to consider the first part of 1989
resolution passed by the Corporation. The resolution of 1989 is
-- 16 of 34 --
... 17 ...
the basis of the said right alleged by the present appellants. The
resolution of 01.09.1989 contemplates that temporary sanction is
given to the Municipal employees and tenants dis-housed due to
development of Municipal Corporation for conversion of ground
floor structures allotted on leave and license basis into ownership
basis mentioned in letter dt. 04.07.1989 and 07.08.1989 and
subject to terms and conditions settled by the Municipal
Corporation and the Commissioner be requested to present the
necessary proposal before Special Committee of Municipal
Council for formulating the terms of regularizing lease of Co-
operative Housing societies.(underlining by me) If one considers
this resolution it only contemplates that the approval is given for
consideration of such conversion and the conversion shall be
subject to terms and conditions which are likely to be settled
subsequently.
27. It is also necessary that subsequently there exchange of
correspondence in this regard and one of them is the letter of
34213 dated 25.01.2000 (27.01.2000). It states that the Estate
Office by letter dated 13.11.1990 have directed to release
pensionary benefits to retired municipal employees staying in the
colony by withholding equivalent amount of 5 years economic
rent or 1/3rd of the gratuity whichever is more and hence vacant
possession of the above mentioned tenement is not necessary.
Thus, the position was of 2000 wherein this conversion was
under consideration. This appears to be a stop gap arrangement
of retaining funds and not as consideration paid. It is necessary to
point out that the aspect of such conversion is seen to be
available from 1968 onwards. It is necessary to consider that the
value of land and available of land then and subsequently has
-- 17 of 34 --
... 18 ...
changed. Thus because of period of time if the intention of the
Corporation changes, it would be for consideration before a
different forum altogether for considering applicability or non-
applicability of scheme.
28. But for consideration of present premises it would be only in
what capacity the premises were held. Apparently, till date there
is no fixed proposal with regard to what are the terms and
conditions of allotment and this is more apparent in view of the
so called reference returned by the Government dated
03.05.2017. By this said answer to reference the Government
directed the BMC to have a census or survey with regard as to
where BMC employees both in service and those that have retired
are residing and their number. The State also directed the BMC to
create a scheme so that the employees can be given houses on
ownership basis and to decide the eligibility criteria. This
resolution of 2017 is not challenged as yet.
29. If one considers this resolution, it would be seen that there is no
fixing of any criteria till date. Mere occupancy of premises could
be one of the criteria but not the sole criteria. The eligibility
criteria is to be fixed and ascertained. The nature of premises, the
location of premises, terms and conditions of allocation of
premises is to be prepared under the scheme and hence not
ascertained. Thus, even if we consider the various
correspondences and proposals, it would not amount to contract
to transfer or consider contract or transfer of immovable property
by the correspondence on acts of the parties. At the most what
could be said at present is that in order to facilitate the fast
implementation of the scheme as and when prepared and for
faster benefit dispersal, pre-preparation was made and so also to
-- 18 of 34 --
... 19 ...
ascertain the nature, a proposal was sought from the beneficiaries
concerned through co-op societies formed. It is thus necessary to
point out that the 1968 scheme calls for tenement of 120 sq.ft
which is not feasible in present circumstances. The aspect of what
would be given, when would it be given, how would be given, for
what it would be given, are all questions which are unanswered
in present set of circumstances.
30. A tentative valuation of 5 years economic rent or part of gratuity
cannot be said to be a final figure unless ratified by the
Corporation through its valid bodies. The withholding of the
amount does not amount to the payment of consideration. It only
implies the security to be established for the same. In such
circumstances, I am unable to accept the contention that there
was a contract of transfer between the BMC and that the terms
could be construed or could be ascertained finally. Thus, the
conditions 1 to 3 as contemplated under Section 53A of the T.P
Act are not fulfilled here.
31. Another essential condition is that the part performance of the
contract to take possession of the property or part thereof. If we
consider the proposed scheme, it does not contemplate taking of
the present premises of ownership basis. In the earlier scheme,
proposed, same was the case, but later on it was decided to form
co-op societies and the tenements to be constructed therein at the
expense of the occupier on such terms if any, in nature of
allotment, and area of tenement was also not decided. Thus,
what was to be sold is not the present tenement and hence the
occupation or possession of the present tenement cannot be said
to be part performance of the contract, if any. It was on the basis
of leave and license agreement which was to be construed
-- 19 of 34 --
... 20 ...
accordingly. In such circumstances, even that aspect is not
satisfied.
32. Now let us again consider if there was finalization of the terms
and conditions by different angle. The letter of 22.01.1997 speaks
that the promoter of the housing society is requested to submit a
detailed scheme of redevelopment subject to the finalized layout.
Thus, there is no finalization of the scheme seen. The
recommendation of the Commissioner of the Corporation dated
20.12.2007 points out all these aspects which shows that the
entire process that took place since 1966 and the various changes
that took place. It is seen from this letter that the co-op housing
society and list of members was to be supplied to the Corporation
and FSI was to be assessed. The concept of redevelopment
scheme and regulation 33(7) was also up for consideration. It
also considered that from 1966 to 1989 and from 1989 till 2007
the situation changed. Thus, entire scheme was never finalized as
such.
33. Let us again consider the provisions of Section 92 of the MMC
Act. It deals with alienation of the Corporation property. The
alienation of the property of Corporation is with the sanction of
the Corporation and with the approval of the State Government
and that too to the Co-operative Hosing Society of the officers
and servants of the Corporation. There is nothing on record and
admittedly there is no approval of the State Government for
granting lease to Co-op housing societies, even in the year 1989
or post 2017 i.e. post decision of SLP. Thus, there is no valid or
legal transfer contemplated or approved to uphold that there was
any contract of any nature existing. It was merely exchange of
pre-proposals and preparation of the conditions that could be
-- 20 of 34 --
... 21 ...
required for compliance if the proposal was accepted finally. Thus
provisions of Section 53-A of T.P. Act would not apply.
34. In such circumstances, various judgments with regard to the
aspect of Section 53-A as to whether the entitlement of specific
performance, limitation, readiness and willingness, dismissal of
suit of specific performance or suit for possession as laid down in
cases of Mahadeo Nathuji Patil V/s Surjabai Khushalchand
Lakkad and Ors 1994 MH.L.J 1145; Shrimant Shamrao
Suryavanshi V/s Pralhad Bhairoba Suryavanshi (2002) 3 SCC
676; Sadashiv Chander Bhagmare V/s Eknath Pandharinath
Nangude 2004 (3) Mh.L.J; Kashiram Wadgu Mandale and Anr
V/s Mansaram Tulshiram Mundale and Ors 2016(3) Mh.L.J;
Ishwara Ganu Nimbalkar V/s Ananda Balwant Karnekar 2014
SCC Online Bom 1253; T.S. Karthikeya Mudaliar V/s Singaram
Pillai and Anr 1956 SCC Online Mad 85, does not apply or subsist
for consideration in this case and hence are not applicable.
35. That takes me to the second part, as pointed out earlier, the
aspect of existence of agreement, existence of contractual
requirement and these action of Corporation has been considered
and so also right of the present applicants to withhold to the
present quarters has been considered by Division Bench of
Honble High Court in the case of Jeevan More and same has been
confirmed by Honble Supreme Court. It is held that these persons
have no right to occupy the premises and proceedings should be
initiated under section 105B of the Act. Much was harped upon
the aspect that these petitions related to the part of payment of
retirement benefits. It is really not proper to consider the same in
that perspective. The reliefs claimed were implementation of the
resolution of 1989 which contemplated the allotment and
-- 21 of 34 --
... 22 ...
implementation of scheme of ownership. The judgment of Jeevan
More is self explanatory of rights of the parties and its
contentions as far as scheme and entitlement to occupy the
premises is concerned. In such circumstances, there is clear-cut
finding of the Court with regard to the aspect of unauthorized
occupation and much so similar findings of Honble High Court in
these cases of these appellants who are represented either
individually or through their co-op societies.
36. It would be relevant to reproduce the relevant findings in
the Earlier Writ petition of
More Eknath (WRIT PETITION NO.
957 OF 2013 )
“
Eventually, everything has to be placed before the General
Body of the Municipal Corporation. The General Body has yet not
passed any resolution conferring any right. Therefore, the policy
decision not to grant the conversion nor to permit retention of the
quarters on the above basis binds the Municipal Corporation.
…….
The Municipal Commissioner, thereafter, disclosed his intention to
grant the tenements at Parksite (Vikhroli), Barvenagar
(Ghatkopar), Mithanagar (Goregaon) and Deonar on ownership
basis. That is how the Municipal Corporation passed Resolution
No. 343 dated 1st September, 1989.
…… As required, an offer was submitted by the petitioners. The
petitioners complied with the requisitions and other terms in the
letters of the Municipal Corporation. It is in these circumstances
that the petitioners submit that they were hopeful of the benefits
being granted. They were also hoping that till the outcome of the
proceedings pending in this court, no coercive measures would be
initiated. The petitioners also relied upon certain correspondence
with their architect.
………... 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 dis-
housed 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
-- 22 of 34 --
... 23 ...
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
…….Therefore, the recommendation of the Municipal
Commissioner was placed before the Municipal Corporation's
General Body and that General Body resolved that these
proposals/recommendations of the Municipal Commissioner can
be temporarily approved provided the co-operative housing
society of such occupants presents a concrete proposal for
consideration of the Commissioner and thereafter the
Commissioner forwards it for approval of the Municipal
Corporation. Thus, this is a proposal which has to be initiated
from the Municipal Commissioner. We do not see how this
resolution can be termed as a final decision of the Corporation to
grant permanent occupancy rights. These are not final
recommendations or accepted proposals so as to convert the
individual occupancy into either ownership or permanent tenancy
basis. This is at best a request emanating from all these
occupants, on which the Municipal Commissioner endorses his
remarks and observations and then forwards them to the House
…... Once they understand this as only a request made by them to
the Municipal Corporation for consideration of their cases
sympathetically, then, all the more we do not see how moved by
their plight alone, the municipal properties can be handed over to
them permanently. Further, if this court were to allow such a
request and issue the writ as prayed, that would be a mockery of
the rule of law. This court's orders and writ cannot be contrary to
the MMC Act. The municipal property can be disposed off only in
accordance with section 92 of the MMC Act. The petitioners
ought to be aware of this settled legal position and as
annunciated in the MMC Act. No public property can be disposed
off even by a public body except as authorised by law
…….. 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
-- 23 of 34 --
... 24 ...
to such patent illegality. We cannot, in the garb of any
sympathetic considerations, allow retention of the municipal staff
quarters
…….The Municipal Corporation approved this recommendation
of the Municipal Commissioner on 1st September, 1989, but
mentioning clearly that these are special factors and
circumstances. It had not passed a firm resolution nor has taken
any final and binding decision. It, as noted above, only directed
that the Municipal Commissioner should forward the necessary
proposal specifying the terms and conditions for allotment for
due consideration and specific approval of the Municipal
Corporation. There are further representations and
correspondence, which would indicate as to how this whole
proposal was not found to be feasible.
…...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 “
37. The relevant portion judgment of Jeewan More highlight
the findings held earlier in this proceedings
38. 5. We must, at once, clarify that we are dealing
with the claims of ex-employees 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 ex-employees 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
-- 24 of 34 --
... 25 ...
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 pre-existing 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..........…
39. " 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 dis-housed 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.
40.
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
-- 25 of 34 --
... 26 ...
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 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
-- 26 of 34 --
... 27 ...
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
-- 27 of 34 --
... 28 ...
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 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
-- 28 of 34 --
... 29 ...
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
Committee and General Body recommendations
-- 29 of 34 --
... 30 ...
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
-- 30 of 34 --
... 31 ...
the petitioners. “
(highlighted by me)
41. Now the issue arises is about the parties being in
possession. Admittedly and apparently Corporation took a very
liberal and humanitarian view of not to evict the persons pending
the final consideration of the aspect of such proposal of giving of
ownership premises to the employees of the BMC. This was not in
pursuance of any agreement. This was in pursuance only not to
have further hardship to these employees. This is apparent from
the fact that what was done was withholding and not paying of
consideration. The Estate Officer letter also contemplates that
what was considered is that the proposal of these employees was
under serious consideration than before the Corporation and its
authorities and hence it was thought that eviction process should
not be initiated. It is necessary to point out that inspite of these,
various eviction proceedings are seen to be initiated and action
contemplated and this has resulted in filing of various petitions
right from 1988-1989 and these finally came to an end in the
year 2017 by the judgment of Jeevan More case.
42. The said aspects clearly show that the license to occupy
continued on the same terms and conditions and it was merely an
extension granted to the employees. Thus, once an extension is
granted, the Corporation also has a right to cancel the said
extension and liberty. Admittedly, the Corporation has done so by
a legal notice to the concerned employees. In such circumstances,
there is legal, valid and justified termination of occupancy. Once
there is legal, valid and justified termination of occupancy, there
is proper termination and hence on termination the occupant
becomes unauthorized occupant as contemplated under the
-- 31 of 34 --
... 32 ...
provisions of the MMC Act. Hence, the Corporation has clearly
established that the termination is legal and valid and the
appellants are unauthorized occupants of the said premises and
hence I answer point No. 2 in the affirmative.
43. Before I conclude with this it is necessary to point out that
the consideration of the scheme, entitlement and existence are
only for purpose of ascertainment of status of appellant/occupant
in the premises and does not in any way deal with the aspect of
the scheme applicability eligibility of any of the appellants, if any.
As to Point No. 3
44. Considering this aspect, the concerned Enquiry Officer has
sufficiently dealt with the issues raised before it. The support of
the Estate or the support of the Government should have been in
clear terms of assigning property to the society or the appellants
and supported by the Corporation resolutions. This not having
been done, there is no protection available much so under section
53-A of the T.P Act.
45. It is alleged that the suit is barred by limitation and there are no
pleadings of limitation. The procedure of CPC is generally
applicable but not in strictly to such proceedings. The law of
pleadings would be satisfied if the parties had notice of the said
fact. Apparently, if one considers the history of the case the
eviction proceedings were initiated after the litigation relating the
scheme ended in the year 2017. Thus, if that is considered the
cause of action would arise only then, as various proceedings
were stayed by Honble High Court in those proceedings. In such
circumstances, even if that is considered there is no bar of
limitation as such. There is no necessity of claiming exemption
from limitation. The right cannot be said to have been accrued at
-- 32 of 34 --
... 33 ...
the time of retirement in this case and it would be only accrued
when on asking possession and refusal by occupant. Considering
the same, the termination being post 2017, this is within
limitation and hence all the aspects are covered by the concerned
authority. Considering the same, the impugned order does not
require any interference and I pass following order:
O R D E R
1. Misc. Appeal is dismissed.
2. Time is granted to the appellant/s to vacate the premises till
30/04/2024 subject to appellant/s filing an undertaking before
this Court within 4 weeks from today that the appellant/s is/are
in physical occupation of the premises and that appellant/s will
not create any third party interest in the said property and further
appellant/s will honour the order of the learned Enquiry Officer
on its attaining finality.
3. If the above undertaking is/are not filed within the stipulated
period, the execution can be proceeded with.
4. Record and proceedings be returned to the Respondent
No.1/BMC.
5. Application under Order XLI Rule 27 of CPC is rejected.
6. All Misc applications stand filed in view of disposal of appeals.
DATE : 01.02.2024 (A.SUBRAMANIAM)
PRINCIPAL JUDGE
CITY CIVIL COURT, MUMBAI.
(JO CODE MH01711).
Dictated on : 01.02.2024.
Transcribed on : 02.02.2024, 03.02.2024 and 05.02.2024.
Checked on : 16.03.2024.
Signed on : 30.03.2024.
*Note : Digisigner expired, hence no digital signature.
-- 33 of 34 --
... 34 ...
"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER"
DATE : 02.04.2024, AT 12.15 P.M. Mr. Mohit M. Patange
STENOGRAPHER (GRADE-III)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court no.) : SHRI A.SUBRAMANIAM. C.R.NO.19.
Date of pronouncement of judgment/order : 01.02.2024.
Judgment/order signed by the P.O. on : 30.03.2024.
Judgment/order uploaded on : 02.04.2024.
-- 34 of 34 --