Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Misc.Appeal 156.18
Received on : 24/04/2018
Registered on : 25/04/2018
Decided on : 14/09/2018
Duration : Y M D
00 04 20
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Misc.Appeal No.156 of 2018
Vishnu Babaji Rane
room no.2, Garlic Compound,
Saat Rasta, Byculla,
Mumbai11 ..Appellant
V/s.
1) The State of Maharashtra
Through it officer of Government
Pleader Mumbai, City Civil
Court, Mumbai
2) The Municipal Corporation
Head Quarter, Legal Department,
Mahapalika Marg, Mumbai1
3) The Competent Authority
Enquiry Officer, 'E' Ward,
Municipal Officers 10,
Sainik Street, Byculla,
Mumbai8 ..Respondents
Coram : H.H.THE PRINCIPAL JUDGE
Mrs.P.V. GANEDIWALA
Dated : 14th September, 2018
(C.R.No.19)
Advocate Mr.Sandeep Singh for appellant.
Advocate Mr.Som Sinha with advocate Mr.A. V. Diwate for respondent
no.2 (MMC).
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O R A L J U D G M E N T
Feeling aggrieved by the eviction order dated 23rd
March,2018 passed by the Inquiry Officer under Section 105B of the
Mumbai Municipal Corporation Act (hereinafter referred to as the 'MMC
Act, 1888') in Inquiry Proceeding bearing No.E/S.0/1/2017, the
appellant who is exemployee of the Mumbai Municipal Corporation,
preferred the present appeal.
2 The facts, necessary to decide the present appeal are as
under:
The appellant herein joined Municipal Corporationrespondent
no.2 as a labour in September,1974 in Deputy Engineer (Stores)
Department and promoted as a Mukadam on 1st February,1980. The
inquiry premises bearing room no.2, Garlic Compound, Sat Rasta,
Byculla, Mumbai11 was allotted to the appellant on 1 st July,1981 on
leave and license basis by virtue of his employment with the
Corporation. The appellant retired from Municipal services on 31st
July,2012.
3 It is the case of the Municipal Corporation before the
inquiry officer that after appellant's retirement, his right to occupy the
inquiry premises is also terminated. It is contended that the appellant
has failed to pay the rent for the period from November,2012 to
June,2017 @ Rs.88,000/ per month total amount of Rs.59,84,000/
and therefore, a quit notice bearing No.Ch.Eng/S.O./6684/ EsttII dated
6th September,2017 was issued and personally served on the appellant
on 6th September,2017 under Section 105B of MMC Act. As the
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appellant did not comply with the said quit notice, the inquiry was
initiated before the Inquiry Officer. The appellant had given an
undertaking dated 1st July,1997 that in the event of failure of any of the
conditions mentioned in the said undertaking, the Municipal
Corporation will forfeit all rights of the appellant to occupy the inquiry
premises.
4 The Ld.Inquiry Officer recorded the evidence as adduced by
both the parties and on merits passed the impugned order of eviction
dated 23rd March,2018.
5 I have heard ld.counsels Mr.Singh for appellant and
Mr.Diwate for respondent no.2.
6 The following points arise for my consideration and my
findings thereon for the reasons stated therefor are as under:
POINTS FINDINGS
1) Whether the appellant is in
unauthorized occupation of ..In the affirmative
the inquiry premises?
2) Whether the order passed
by the Inquiry Officer is legal, ..In the affirmative
proper and correct?
3) What order? ..As per final order
R E A S O N S
7 Point nos.1 and 2: At the outset, it is undisputed that
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even after retirement of the appellant, the inquiry premises is in
possession of the appellant. Undisputedly, the inquiry premises is in the
category of 'C1' i.e. dilapidated and unsafe for human habitation and
occupation. As per record, the Hon'ble High Court in Writ Petition
No.1765/15 filed by the appellant, vide order dated 4th January,2016
while directing the Municipal Corporation to restore the electricity and
water supply to the inquiry premises, disposed off the Writ Petition on
the statement of the ld.counsel for the Municipal Corporation that
Municipal Corporation shall follow due progress of law for
dispossessing the appellant herein and the other occupants of the
building which is declared as category 'C1'.
8 The appellant in his crossexamination has admitted that as
per the order of the Hon'ble High Court, the Corporation has came
forward to reconnect electricity as well as water supply in the inquiry
premises. However, he had asked to connect electricity and water
supply with separate meter.
9 Ld.counsel for the appellant raised question of ownership
of the inquiry premises on the basis of one document which is allowed
to be filed in this appeal in which the Administrative Officer of the
Corporation in his reply to the letter of the appellant for standard rent
informed that there is no entry of standard rent in record of Municipal
Corporation in view of the private ownership of the inquiry premises.
In the said reply it is also informed that the said inquiry premises being
in dilapidated condition, it will be demolished at the earliest and
therefore, it would not be proper to fix at that stage the standard rent.
10 I am not persuaded with this argument for the reason that
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the appellant does not dispute that the premises was allotted to him by
the Corporation, he being in the service of Corporation. Furthermore,
as per law, the tenant has no authority to question the ownership of the
landlord. In the instant case, the eviction is sought on the ground of
nonpayment of arrears of rent after the retirement of the appellant
which is a valid ground for the Corporation under sub clause (i) of
Clause (a) of subSection 1 of Section 105B of MMC Act. The appellant
has retired from his services in the year 2012. Since his retirement i.e.
for all most six years till today he is in possession of the inquiry
premises without rent. The premises is categorized as category 'C1”
which requires urgent demolition. The appellant could not show under
what authority he claims to retain his possession to the inquiry
premises. The record and proceedings before the Enquiry Officer shows
that the Ld.Inquiry officer has given proper opportunity of hearing to
both the parties. The order of Ld.Inquiry Officer does not appears to be
perverse in any angle.
11 In addition to this, the undertaking dated 24th July,2012
was given by the appellant to vacate the inquiry premises within three
months from the date of receipt of his N.C.P.F. amount. However, even
after the payment of N.C.P.F. amount, he did not vacate the premises.
Therefore, he is liable for eviction. The order of eviction dated 23rd
March,2018 passed by the Inquiry officer under Section 105B of MMC
Act in inquiry proceeding bearing no.E/S.0/1/2017 is hereby
confirmed. I answer the points accordingly and pass the following
order:
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O R D E R
1) Misc.Appeal No.156/18 stands dismissed with costs.
2) R & P be sent back.
14/09 /2018 (P.V. GANEDIWALA)
Principal Judge,
Gr.Bombay.
Dictated on : 14/09/2018
Transcribed on : 14/09/2018
Signed by HHJ on :
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER
Name of Stenographers: Mrs.Aruna S. Jayade
Upload date and time: 17/09/2018 (At 12.00 p.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Mrs.P.V.GANEDIWALA(C.R.No.19)
Date of Pronouncement of Order 14th September,2018
Order signed by P.O. on 15th September,2018
Order uploaded on 17th September,2018
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