Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Misc.app.169.18
Received on : 26/04/2018
Registered on : 27/04/2018
Decided on : 05/08/2019
Duration : Y M D
01 03 09
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Misc. Appeal No.169 of 2018
The Secretary
Shivchatrapati Vyayam Mandir,
V.L.T. between BIT Chawl no.3
and 4, Mandavi, Koliwada,
Mumbai9 ..Appellant
V/s.
1) The Municipal Commissioner
Municipal Corporation for
Gr.Bombay, a body Corporate,
constituted under of 1888, having
it's office at Mahanagarpalika
Marg, Nagar Chowk,
Mumbai1
2) Enquiry Officer,
Municipal Corporation for
Gr.Bombay, Municipal
Office (EWard), 2 nd
floor, 10, Sankli Street,
Byculla, Mumbai8 ..Respondents
Coram : H.H.THE PRINCIPAL JUDGE
V.G. BISHT
Dated : 5th August ,2019
(C.R.No.19)
Advocate Mr.Sameer Tendulkar for appellant.
Advocate Mr.Vikram Walavalkar for respondents.
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2 Misc.app.169.18
O R A L J U D G M E N T
Being aggrieved by the order of eviction passed by the Enquiry
Officer in enquiry no.B/1/Estate of 2018 on 18th April,2018 under the
provisions of Mumbai Municipal Corporation Act ('the Act' for short) in
respect of premises viz. V.L.T. between B.I.T. chawl no.3 and 4, Mandavi
Koliwada, Mumbai9 ('enquiry premises' for short), the appellant has
preferred the present appeal.
2 According to appellant, enquiry premises was allotted to one
Narayan Ganpat Nakhwa. The appellant is paying rent of the enquiry
premises to the Corporation since 1929. The enquiry premises is allotted
to Shivchatrapati Vyayam Mandir and the working of Vyayam Mandir and
use of enquiry premises for the Vyayam Mandir has repeatedly been
informed to the concerned department and there has been no change of
user since then. Therefore, the say of the respondent that the appellant is
an unauthorized occupant of the enquiry premises is not correct. Since all
these facts were not considered by the Enquiry Officer in proper
perspective and instead of dismissing the complaint, wrongly passed the
impugned order. The impugned order, therefore, needs to be set aside.
Hence, this appeal.
3 Mr.Sameer Tendulkar, learned counsel for appellant, at the
very out set, submitted that the enquiry premises is not belonging to the
respondent. Since beginning the appellant is using the enquiry premises as
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Vyayam Mandir and the Enquiry Officer has wrongly held the change of
user of the enquiry premises. According to the learned counsel, it is also
wrongly held by the Enquiry Officer that the articles found in the enquiry
premises were kept by the hawkers and rather those articles are being used
for the purpose of running the gymnasium. For all these reasons, the
appeal deserves to be allowed, argued learned counsel.
4 Mr.Vikram Walawalkar, learned counsel for respondent,
submitted that the appellant has no locus to file the present appeal.
Moreover, the tenancy was duly terminated in accordance with law vide
letter dated 23rd November,2017 (Exh.B) and the same has not been
challenged at any point of time. This being so, the appellant becomes
unauthorized occupant under Section 105A(d) of the Act. Justifying the
impugned order, the learned counsel contended that there being no merit
in the appeal, the same is liable to be dismissed.
5 Following points, therefore, arise for my consideration and my
findings thereon for the reasons are as follows:
POINTS FINDINGS
1) Whether the impugned order
dated 18th April,2018 passed ..In the affirmative
by the Enquiry officer is legal,
just and proper?
2) What order? ..As per final order.
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R E A S O N S
As to point no.1:
6 From the evidence adduced by appellant before Enquiry
Officer, it can be seen that the enquiry premises was allotted to Narayan
Ganpat Nakhwa on 25th January,1929 by the Bombay Improvement Trust,
Estates and valuation Department, Esplanade Road, Mumbai vide
No.1432/1929 on a nominal rent of Rs.1/ for a general nonresidential
use.
7 It is his further evidence that said Narayan Ganpat Nakhwa
started a gymnasium in the enquiry premises with prior permission of all
the concerned authorities. The said gymnasium is still running in the name
of Shivchatrapati Vyayam Mandir and is a charitable institution.
8 However, in the crossexamination, the appellant admitted
that he does not have any documentary evidence to show that the enquiry
premises was allotted to Narayan Ganpat Nakhwa on 25th January,1929 by
the Bombay Improvement Trust, Estates and valuation Department,
Esplanade Road, Mumbai vide No.1432/1929. Thus, the very theory of the
appellant that the enquiry premises was allotted to Narayan Ganpat
Nakhwa by the Bombay Improvement Trust, Estates and valuation
Department, Esplanade Road, Mumbai vide No.1432/1929 on a nominal
rent of Rs.1/ on a monthly tenancy basis goes away.
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9 On the contrary, the evidence of rent supervisor, Estate
Department, of the respondent given before Enquiry officer shows that the
enquiry premises was allotted to the Secretary, Shivchatrapati Vyayam
Mandir on monthly tenancy basis. To that effect, the respondent has
produced on record the true copy of a letter issued by Administrative
Officer (A/c), Assistant Commissioner (Estate) Department showing that
the enquiry premises originally stands in the name of Secretary,
Shivchatrapati Vyayam Mandir with effect from December,1928 and this
fact is duly admitted by the present appellant in his crossexamination by
admitting that the enquiry premises is allotted to them on 1st
December,1928. This in iteself falsifies the stand taken by the appellant
that the enquiry premises was allotted to Narayan Ganpat Nakhwa on 25th
January,1929.
10 The evidence of appellant also shows that initially when the
enquiry premises was allotted to Narayan Ganpat Nakhwa, it was a
charitable institution and if it was so then no documentary evidence is
forthcoming to show that it was duly registered in accordance with law.
His evidence further shows that the appellant is Chairman of
Shivchatrapati Vyayam Mandir and how the enquiry premises came to be
transferred to him is again not made clear by him. Even he admits that
Shivchatrapati Vyayam Mandir is not a registered institution. Apart from
this, he admitted that he does snot have document to show his relation
with Narayan Ganpat Nakhwa.
11 The matter does not end here. Examinationinchief of
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appellant shows that said Narayan Ganpat Nakhwa expired on 29th
January1997 and was the Secretary in his individual capacity and all the
decisions in respect of the enquiry premises used to be taken by him. If
this evidence is taken on its face value, then necessarily and the fact that it
was not a registered institution, so called tenancy of Narayan Ganpat
Nakhwa came to an end after his death. Merely because the rent receipts
were issued even thereafter could not have otherwise revived the tenancy
which had come to an end after the death of Narayan Ganpat Nakhwa. So,
the very locus of appellant is highly questionable.
12 Be that it may, the fact remains that the said tenancy came to
be terminated because of the changed use of the enquiry premises. From
the evidence of respondent's witness it appears that an inspection of the
enquiry premises was carried out and it was found that there were
corroded exercise articles, water filled plastic drums, plastic mugs, trunks,
racks, utensils and accordingly inspection report (Exh.A) came to be
prepared on 19th August,2017 by Rent Supervisor and Rent Collector of the
respondent. To substantiate the report, photographs of the enquiry
premises also came to be submitted before the Enquiry Officer. Thereafter,
vide noticed dated 23rd November,2017 (Exh.B) the tenancy came to be
determined/ terminated by the respondent. It may be quickly noted here
that the said notice dated 23rd November,2017 terminating or determining
the tenancy was not at all challenged before the appropriate forum by the
appellant agt any point of time.
13 I have carefully gone though the photographs filed on record.
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I find the observations of Enquiry Officer reasonable because from the
photographs it is very much apparent that there were material like plastic
drums, clothes, buckets and utensils. The learned counsel during the
course of argument pointed out that nothing is produced on record to
prove the permitted use of the enquiry premises and, therefore, according
to him it was wrong on the part of Enquiry Officer to hold that the enquiry
premises was used otherwise than the permitted use. The argument so
advanced by learned counsel is far from reality inasmuch as according to
appellant himself it was Vyayam Mandir only and if it was so then one fails
to understand the utility of utensils, plastic drums, buckets and other
articles being kept in the enquiry premises.
14 His crossexamination on this aspect is also full of significance.
He stated in his crossexamination that he does not know whether the
articles were kept by hawkers in Shivchatrapati Vyayam Mandir at the
time of confiscation by Corporation. Thus, accusation of respondent that
the enquiry premises was being used for some other purpose then the
permitted use, gets impetus from the ignorance so expressed by appellant
in his crossexamination. There is no specific denial or the explanation as
to how the articles found in the enquiry premises were there. The
appellant who claims himself to be Chairman of the enquiry premises
ought to have either refuted the accusation stoutly and outrightly or
offered the satisfactory explanation in his crossexamination.
15 Although the appellant claimed in his crossexamination that
he has maintained register showing the list of members of Shivchatrapati
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Vyayam Mandir and even can file it on record but that register was never
brought on record. From the discussion two things emerge. Firstly, the
appellant tried to derive the authority from Narayan Ganpat Nakhwa,
which is not at all established. Secondly, the appellant had changed the
use of enquiry premises without permission of the respondent. The
observations and findings of learned Enquiry Officer on these two counts
cannot be faulted with.
16 During the pendency of the present appellant, appellant
moved an application (Exh.4) for contempt of court against the respondent
alleging therein that there being stay order dated 2nd May,2018 of this
court, the respondent sealed the premises by fixing a wooden blocks and
restricting/restraining the appellant from using the enquiry premises. This
contempt application is resisted by the respondent by filing their reply
(Exh.4A).
17 During the course of argument, learned counsel for respondent
pointed out the material portion of the examinationinchief of the
appellant. The examinationinchief came to be filed on record on 6 th
March,2018 wherein it is clearly alleged that the entrance of the
gymnasium is closed by putting wooden plates on the door without giving
any proper notice or proper opportunity and great hardship is caused as
the regular visitors of gymnasium cannot enter the gym and do their
regular workout. Thus, the sealing of the gymnasium was well done before
6th March,2018 whereas the impugned order was stayed by my Learned
Predecessor on 3rd May,2018. Thus, prima facie, I do not find the merit in
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the application and, therefore, the cognizance of the same is ruled
outrightly.
18 In view of above, I hold that the impugned order is legal,
correct and proper in the facts and circumstances of the case. Hence, the
point is answered in the affirmative.
19 For the aforesaid reasons, I pass the following order:
O R D E R
Misc.Appeal No.169/18 stands dismissed.
R & P be sent back.
05/08/2019 (V. G. BISHT)
Principal Judge,
Gr.Bombay.
Dictated on :05/08/2019
Transcribed on :05/08/2019
Signed by HHJ on :05/08/2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER
Name of Stenographer: Mrs.Aruna S. Jayade
Upload date and time: 06/08/2019 (10.30a.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Shri V.G. BISHT(C.R.No.19)
Date of Pronouncement of Order 5th August,2019
Order signed by P.O. on 5th August,2019
Order uploaded on 6th August,2019
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