Final Order 1

Order Details: Other
Pdf Text: 1 Civil M.A.No.56/19
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
INTERIM (MISC.) APPLICATION NO. 56 OF 2019
IN
STAMP NO. 6592 OF 2019
M/s. Twinkle Diamond Jewellery
India Private Limited ...Applicant/
Orig.Appellant
Versus
1. The Development Commissioner
Seepz – SEZ Andheri (E) & Anr. …Respondents.
Appearance: Adv. Mr. Deepan Dixit for the applicant/appellant.
Adv. Mr. M.S. Bhardwaj for the respondents
Coram : Ashutosh N. Karmarkar,
2nd Additional Principal Judge
(Court Room No. 54)
Dated : 9th September, 2019
ORDER
1. This is an application for condonation of delay in preferring
appeal.
2. The applicant/appellant is challenging the order of Estate
Manager, SeepzSEZ Authority, Mumbai (hereinafter referred to as
SEZ), under Sec. 7 (1) (2A) of Public Premises (Eviction of
Unauthorized Occupants) Act, 1971 directing the appellant to pay
arrears of rent / Government due in respect of Unit No.503 of First
Floor of the Tower No. 1 in the Seepz ++ on the piece or parcel of land
known as SEEPZ Special Economic Zone, Andheri (E), Mumbai. The
applicant was ready to pay Rs. 19,67,702/ allegedly due on 31.03.2018
and was to be paid within 15 days from receipt of the impugned order.
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3. The applicant was put in possession of the subject premises
pursuant to Sanction/Allotment Order dated 05.06.2003 and possession
receipt dated 23.01.2004 by MIDC and payment of lease premium of
Rs. 2,09,12,600/ on the terms and conditions setout in the Sanction
Letter. According to the applicant, there is no privity of contract
between the applicant and respondent No. 1. The applicant has been
paying rent to MIDC. Respondent No. 2 failed to appreciate that there
is no question of applicant paying rent to respondent No. 1Seepz.
4. By Indenture of Lease dated 28.06.2005, between MIDC as
Lessor and President of India through Development Commissioner,
SEEPZ as Leasee of the obligations and conditions as mentioned therein
acquired its right for a term of 95 years from 01.01.2002. The
appellant does not have agreement with respondent SEEPZ. The
subject property do not fall under the definition of Public Premises.
Another issue raised by the appellant is that, the respondents did not
have authority to issue showcause notice.
5. The impugned order was passed on 24.05.2018. There is
delay of about one year in filing appeal. According to the appellant,
unit holders have formed two cooperative societies namely (1) Seepz
Block 1 Premises Cooperative Society and (2) SEEPZ ++ Tower II
Premises Cooperative Society and till date has maintained the TowerI
building at their own costs. On receiving the impugned order, the
appellant approached the said cooperative society as they were
managing and were interacting with MIDC and SEEPZ officials. The
appellant was expecting the Cooperative Society as representative of all
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such other unit holders to intervene and approach the respondents to
seek clarification for alleged amounts claimed as arrears. In January,
2019 the said cooperative Society informed the applicant and such
other members that since the orders are passed against the Unit
Holders, the Cooperative Society cannot intervene. The appellant
reached other unit holders who have received similar order. One of the
unit holder has filed appeal and acquired the stay order. So, the
applicant immediately approached the same Advocate for legal advice
and legal remedy. He advised to bring relevant documents. Some of
the documents were older for the period more than 10 years. The
applicant/appellant collected the record in April, 2019. He sent the
copies of documents to Advocate who prepared the draft on
30.05.2019. It was approved by the applicant on 05.06.2019.
According to the appellant, there was no negligence on his part.
6. The respondents filed reply and denied the contentions in
the application. According to them, no reasonable explanation has been
given by the applicant to condone delay. The delay is not sufficiently
explained. The Estate Manager has rightly issued recovery notice. It is
denied that the subject property do not fall under the definition of
public premises and Estate Manager has no authority to give show
cause notice. According to them, the applicant is unauthorized
occupant. Vide notification dated 07.01.2002, the area of SEEPZ ++
Plot (11 acres) has been merged with the office of the Development
Commissioner, SEEPZ. On 28.06.2005, MIDC entered into a Lease
Agreement for 95 years. It is also contended that the Ministry of
Commerce clarified in the letter dated 02.01.1999 that the role of MIDC
is that of the construction agent and accordingly the unit i.e. allottee is
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required to enter into a separate Lease Agreement with SEEPZ. Thus,
allotment of space was given by the MIDC and the premium was paid to
MIDC and the same was the construction cost paid to the MIDC. The
SEEPZ authority is maintaining the area and providing common
services. It was directed by the Ministry to charge for the services.
SEEPZ Authority is developer and is authorized to collect lease rent. As
per the receipt on record the applicant has paid the rent for a period of
2003 to 2018 on 11.06.2018, so their contentions that they have been
paying the rent to MIDC is not sustainable.
7. I have heard both the sides. Both the sides have submitted
as per their respective contentions.
8. The documents on record show that the premises was
alloted by the MIDC to the applicant. The applicant has placed on
record the document that the maintenance charges were paid by the
applicant to the MIDC. It seems that the subject property was alloted in
2004 to the applicant. Reply of the respondent revealed that the area of
the SEEPZ ++ plot (11 acres) has been merged with the office of the
Development Commissioner SEEPZ SEZ. Therefore, from 2002 SEEPZ
++ plot was in possession of the SEEPZ. The said reply also revealed
that on 28.06.2005, MIDC entered into Lease Agreement for 95 years,
subsequent to the allotment of subject premises to the applicant.
9. According to the applicant, the premises cannot be said to
be public premises and the Estate Manager has no authority to issue
showcause notices. He has raised the ground that, after getting the
impugned order, he approached Cooperative Society which is formed
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by Unit Holders, so that the cooperative society will intervene and
approach respondent to seek clarification regarding the amount claimed
as arrears. In January, 2019, the said Society informed that since the
orders are passed against the Unit Holders, society cannot intervene.
Then he approached other Unit Holders, who got similar orders. One
of the Unit Holder approached Advocate and got orders of stay. This
applicant has also attempted to take legal advise and legal remedies.
He was required to make available several documents. Some of the
data was older than period of 10 years. The applicant has also
contended about grounds for delay in preferring appeal in the appeal
memo. Affidavit in support of his contentions is also filed. So, the
grounds for delay in preferring appeal gets support from affidavit.
These grounds are not specifically denied in the reply. There is no
reason to disbelieve the contention that the applicant has approached
the cooperative society to resolve dispute. There is also no reason to
disbelieve that, the applicant required time to collect several documents
to make available to the Advocate. It is always better to decide the
matter effectively on merit. The applicant has also raised arguable
issues. It appears that on getting response form Cooperative Society,
as asserted in January, 2019 the applicant approached Advocate in
March, 2019.
10. Considering these facts, it will be proper to impose costs on
the applicant. The grounds for delay appears to be satisfactory and
sufficient. Therefore, I am of the opinion that the application deserves
to be allowed. Accordingly, I proceed to pass order in following terms.
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ORDER
1. Misc. Application No. 56 of 2019 for condonation of delay is
allowed subject to payment of costs of Rs.3000/ to the State.
2. The applicant shall deposit the costs within two weeks from the
of the order.
3. On depositing costs appeal be registered.
4. M.A. No. 56 of 2019 is disposed off accordingly
( Ashutosh N. Karmarkar )
2nd Additional Principal Judge,
Date : 09.09.2019 City Civil Court, Gr. Mumbai.
Dictated on : 09.09.2019
Transcribed on : 13.09.2019
Date of sign : 21.09.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 23.09.2019 4.20 P.M.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri A.N. KARMARKAR
(C.R.No.54)
Date of Pronouncement of
JUDGMENT /ORDER
09.09.2019
JUDGMENT /ORDER signed by P.O. on 21.09.2019
JUDGMENT /ORDER uploaded on 23.09.2019
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