Final Order 1

Order Details: Copy of Judgment
Pdf Text: M/s. Twinkle Diamond Jewellery India v The Development Commissioner & Anr.
Received on : 19/06/2019
Registered on : 20/09/2019
Decided on : 22/12/2020
Duration : Y M D
01 03 02
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
MISC. APPEAL NO.162 of 2019
M/s. Twinkle Diamond Jewellery India
Private Limited, a company registered
under Companies Act, 1965, having its
registered office at 503, Fifth Floor,
Tower I, SEEPZ ++, Andheri (E),
Mumbai-96. ..Appellant
Versus
1) The Development Commissioner,
SEEPZ-SEZ, Andheri (E),
Mumbai-96.
2) Learned Estate Manager,
SEEPZ-SEZ, Andheri (E),
Mumbai-96 ..Respondents
CORAM: H.H.THE PRINCIPAL JUDGE
S.B.AGRAWAL
DATED: 22nd December,2020
(C.R.No.19)
Shri Deepan Dixit,
for appellant.
Shri M.S. Bharadwaj,
with Shri S.R. Rajguru for respondents.
O R A L J U D G M E N T
This appeal under Section 9 of the Public Premises (Eviction of
Unauthorised Occupants) Act,1971 (“the Act” for short) is preferred
against the order dated 24th May,2018 passed by the respondent no.2-
Estate Manager, SEEPZ SEZ, Andheri (E), Mumbai-96 thereby directing
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the appellant to pay an amount of Rs.19,67,701.52 within 15 days from
the date of receipt of the order in respect of subject premises viz. Unit
No.503, Tower-I, SEEPZ++, SEEPZ SEZ, Andheri (E), Mumbai-96.
2. Briefly stated the facts leading to the present appeal are as under:
It is not in dispute that the subject premises were allotted to the
appellant by the Maharashtra Industrial Development Corporation
(“MIDC” for short) in the year 2003 after accepting premium of
Rs.3,150/- per square foot totaling Rs.2,09,12,600/-. Accordingly,
allotment letter was issued to the appellant and a Lease Deed was to be
executed in accordance with the allotment letter and nominel lease rent
of Rs.100/- was payable on annual basis thereafter. Possession receipt
was also issued to the appellant. However, thereafter, the MIDC
demised the premises unto the President of India through the
respondent no.1 Development Commissioner of SEEPZ SEZ for a period
of 95 years and an Indenture of Sub Lease was purportedly entered
between the appellant and respondent no.1 for a period of 95 years.
This document did not stipulate any additional yearly ground rent
whereas the MIDC continued to insist that the annual ground rent
agreed between the MIDC and the appellant ought to be paid by the
appellant to the MIDC with which there is no dispute.
3. However, the respondent no.1 leveled ground rent in
contravention with the terms and conditions of the allotment orders and
infact the MIDC wrote to respondent no.1 not to levy any additional
lease rent.
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4. On 13th January,2016, respondent no.2 issued a show cause
notice to the appellant under Section 7 of the Act wherein it has
contended that the appellant had failed to clear the outstanding
Government dues to the tune of Rs.8,11,44.36 and called upon the
appellant to specify as to why an order in respect of the same ought not
be made.
5. The notice was replied to. Several grounds were raised
challenging the demand. Moreso, considering the agreement of the
appellant with the MIDC it was specifically contended that the amount
liable to be paid after the payment of substantial lease premium to the
MIDC at the inception, as per the agreement was Rs.100/- per annum
and the rate at which the same was applied was highly exorbitant which
the respondent no.1 was not entitled to levy.
6. The fundamental ground of objection raised by the learned
counsel for the appellant is that although substantial grounds have been
raised against the respondent; without considering the contents in the
reply and the grounds raised therein, the respondent no.2 has passed a
cryptic order without assigning any reason or discussing the contentions
raised by the appellant.
7. Learned counsel for the respondent on the other hand supported
the impugned order and sought dismissal of the appeal.
8. Both the sides have filed their written submissions. However,
considering the narrow compass, at this stage, I deem it fit to frame the
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following points and my findings thereon for the reasons therefor are as
under:
POINTS FINDINGS
1. Whether the impugned order
passed by the respondent no.2 ..In the negative
is a reasoned order?
2. Whether the impugned order
is sustainable in law? ..In the negative
3. What order? ..As per final order
R E A S O N S
Point nos.1 and 2:
9. At the outset, it would be appropriate to mention that the
appellant was allotted the subject premises not by the respondent no.1
but by the MIDC which is neither a party before the Estate Officer nor
before this court. The allotment was made after accepting a substantial
amount of premium and an yearly lease rent of Rs.100/- in lump sum
was agreed to be paid by the appellant to the MIDC. Infact, a lease
agreement was to be executed between the appellant and the MIDC as
per the terms of the allotment letter.
10. However, in the meanwhile MIDC entered into lease and demised
the entire property in the President of India through respondent no.1
and it is in such circumstances, that the respondent no.1 had come into
picture who started insisting the appellant to pay annual lease rent at
different rate than what was agreed between the appellant and the
MIDC and all these aspects were raised by the appellants in their reply
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to the Estate Officer.
11. However, perusal of the impugned order would reveal that none
of the grounds raised in the reply have been considered by the Estate
Manager nor he has given any reason in support of his conclusion. The
question as to whether the respondent no.1 was entitled to levy the
amount as claimed by them and whether the appellant was liable to pay
the said amount was also not adjudicated upon.
12. It is trite law that any quasi judicial authority deciding upon an
issue having civil consequence ought to adhere to the fundamental
principles of the natural justice and passing of a reasoned order is a
sine
qua non to demonstrate such adherence. Parties to the dispute must
understand the reason for the consequences that are going to follow
and even the appellate forum is handicapped in the absence of such
reasons. The impugned order merely records that opportunity of
hearing was given to the appellant. It also records submission of reply
and written submissions but nothing therefrom has been considered and
discussed in the impugned order. Such an order cannot be sustained in
law.
13. Learned counsel for the respondent no.2 relied upon the
judgment of the Hon’ble Bombay High Court in the case of
Piadiam
Jewels Pvt. Ltd. V/s. A.S. Aguiar & Ors., in Writ Petition No.832/1997
decided on 4th November,2009 wherein the Hon’ble Bombay High Court
did not interfere in the order passed by the City Civil Court although
one important aspect germane to the proceedings was not considered
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by the City Civil Court. It has to be noted that the situation in the
present case is altogether different inasmuch as none of the contentions
raised by the appellant was deliberated upon by the Estate Manager i.e.
respondent no.2. Furthermore, the Hon’ble High Court thought it fit
not to interfere in it’s extra ordinary jurisdiction under Article 226 of
the Constitution of India whereas the present proceedings is
substantially different.
14. In such circumstances, I have no other alternative that to set aside
the impugned order and remand the matter to the Estate Manager for
passing speaking order after considering the contention raised by the
appellant and giving appropriate reasons. In such circumstances, I
answer the points accordingly and pass the following order:
O R D E R
1) Misc.Appeal No.162/19 is partly allowed.
2) Impugned order dated 24th May,2018 passed by the Estate
Manager is hereby set aside and the matter is remanded back to
the Estate Manager.
3) Respondent no.2-Estate Manager is directed to consider the
material before him and pass a reasoned order.
4) It is clarified that all the contentions of the parties are kept open.
22/12/2020 (S.B.AGRAWAL)
Principal Judge,
Gr.Bombay.
Dictated on : 22/12/2020
Transcribed on : 22/12/2020
Signed by HHJ on : 22/12/2020
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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: 22/12/2020 (At 2.45 pm)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Shri S.B.AGRAWAL(C.R.No.19)
Date of Pronouncement of Order 22nd December,2020
Order signed by P.O. on 22nd December,2020
Order uploaded on 22nd December,2020
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