Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Misc.app.259.18
Received on : 04/06/2018
Registered on : 11/09/2018
Decided on : 16/10/2019
Duration : Y M D
01 01 05
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Misc. Appeal No.259 of 2018
Udyankumar Shriram Vyas
Age65 years, Indian inhabitant,
Occ.: Business, residing at
431, Chandanmal Mansion,
GBlock, 2 nd floor, Kalbadevi
Road, Mumbai2
and having the shop premises at
Shop no.4, 'A' Wing, C/o.Girgaon
Mukhya Dak Ghar, 123, V.P.
Road, Mumbai4 ..Appellant
V/s.
1) Union of India
through the Department of Posts
served at Legal Department,
Aaykar Bhawan Annexe,
M.K. Road, Mumbai20
2) Postmaster General, Mumbai
Region
3) Estate Officer & Asst. Postmaster
General, Mumbai Region (BD)
Both having their office at
Office of Postmaster General,
Mumbai Region, Dadar HO
Building, 3rd floor,
Mumbai14
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4) Sr.Superintendent of Post Offices
Mumbai South Division,
5th floor, Mumbai GPO,
New Annexe Building,
Mumbai1 ..Respondents
Coram : H.H.THE PRINCIPAL JUDGE
V.G. BISHT
Dated : 16th October,2019
(C.R.No.19)
Advocate Mr.Mihir Govilkar i/b. Govilkar & Associates for appellant.
Advocate Mr.Shriram Redij for respondent.
O R A L J U D G M E N T
Being aggrieved by the order of eviction passed by Estate
Officer and Assistant Postmaster General, Mumbai Region (BD), under sub
Section (1) of Section 5 of the Public Premises (Eviction of Unauthorised
Occupants) Act,1971 ('the P.P. Act' for short) on 7th May,2018 in respect of
shop no.4, 'A' Wing, Girgaon Post Office (Mukhya Dak Ghar), 123, V.P.
Road, Mumbai4 ('schedule premises' for short), the appellant has
preferred the present appeal.
2 Brief facts: A building by name Rungta House, 123,
Vallabhbhai Patel Road, Mumbai4 was purchased by Government of India
vide registered Conveyance Deed dated 31st March,1967 by accepting all
then existing tenants from the original landlords M/s. Gonvindram &
Ghanshyamdas Rungta. On 28th December,1967 a notice of termination of
tenancy was issued to the then tenants. However, nothing of consequence
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took place for almost 15 years.
3 According to appellant, on 23rd February,1982 a notice was
issued to the then tenants under the provisions of the Act. Some of the
tenants denied the demand for vacating the premises and drew attention of
the Assistant Post Master General to the letter dated 24th May,1967,
whereby he had shown readiness and willingness to recover the monthly
rent for the premises occupied by those tenants. Again, no further steps
were taken in the matter till 6th April,1987. However, on 6th April,1987 the
tenancy of the tenants came to be cancelled leading to the filing of appeals.
Those appeals came to be allowed on 31st August,1988.
4 The schedule premises was of one Mr.Bachubhai Bhagwandas
Mehta. The appellant had entered into a Deed of Assignment of Tenancy
Rights with the son of original tenant on 5th October,1987, viz.,
Mr.Kiritkumar Bachubhai Mehta after passing away of Mr.Bacbhubhai
Bhagwandas Mehta. Thus, he is legal and rightful tenant in the schedule
premises since 5th October,1987.
5 According to appellant, to his shock and surprise, he received
a notice dated 24th June,2016 under Section 4(1) of the P.P. Act and was
called upon to remain present before the Estate Officer on 15th July,2016
for personal hearing but the hearing was rescheduled on 19th July,2016.
The hearing was attended by him and the Presenting Officer and both the
sides produced various documents in support of their respective cases.
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According to appellant, after almost seven months of the first hearing, he
received a communication dated 17th February,2017 for affording him
another chance and was called upon to remain present on 7th March,2017.
Accordingly, he submitted his written say on 7th March,2017. Again he
received a show cause notice dated 11th July,2017 under Section 7 of the
P.P. Act and was called upon to submit his oral or written say on or before
4th August,2017. On 4th August,2017 during the hearing, he appeared
alongwith his advocate and tendered the say. He again received a notice
dated 27th December,2017 under Section 7(3) read with the relevant
provisions of the P.P. Act and was called upon to show cause on 17th
January,2018. It was in respect of damages and interest thereon. That
notice was also duly replied.
6 The appellant, lastly contended that on 7th May,2018 he
received the impugned order. The appellant alleges that the learned Estate
Officer has erred in computing the assessed arrears and damages and the
same has been done without application of mind and without considering
the documentary evidence as to his unauthorised occupation of the
schedule premises. Hence, this appeal.
7 Mr.Mihir Govilkar, learned counsel for appellant, contended
that the learned Estate Officer ought to have taken into consideration that
the tenancy of the original tenant was accepted by the respondent no.1 by
the registered Deed of Conveyance dated 31st March,1967. Moreover, it is
wrongly held by the Estate Officer that the provisions of Maharashtra Rent
Act do not apply to the schedule premises. According to the learned
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counsel, even if for the sake of argument the appellant is unauthorised
occupant of the schedule premises, the fact remains that the P.P. Act has
no application to the case in hand. Learned counsel also contended that
neither detailed evidence of the parties was recorded nor the documents
were properly marked in accordance with law. Thus, for all these reasons
the impugned order deserves to be set aside. The learned counsel also
placed reliance in Dr.Suhas H. Pophale V/s. Oriental Insurance Co. Ltd.
and its Estate Officer in Civil Appeal No.1970 of 2014 decided on 11th
February,2014 and Dr.Preeti Bhatt V/s. Central Bank of India in Writ
Petition No.1290 of 2012 decided on 20th July,2017.
8 Mr.Shriram Redij, learned counsel for respondent, on the
other hand, submitted that since the facts were admitted, there was no
question of recording of evidence of either of the parties. According to
learned counsel, so called Deed of Assignment is not binding on the postal
department since the capacity of appellant to hold the occupation is not
duly proved. It cannot be said that the Estate Officer was wrong in passing
the order. There being no merit in the appeal, the same is liable to be
dismissed with costs, argued learned counsel.
9 Following points, therefore, arise for my consideration and my
findings thereon for the reasons are as follows:
POINTS FINDINGS
10 Whether the impugned order
passed by the Estate Officer is
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legal, just and proper? ..Partly yes
2) What order? ..As per final order
R E A S O N S
As to point no.1:
10 As far as ownership of the schedule premises is concerned, it is
an admitted fact that the same was purchased by Government of India by
Conveyance Deed dated 31st March,1967 from the original landlords
namely M/s.Gonvindram & Ghanshyamdas Rungta . What the appellant is
emphasizing is that the building by name Rungta House was purchased by
the Government of India by accepting all the then existing tenants as their
tenants. Driving further home the point, the appellant's contention is that
one Bachubhai Bhagwandas Mehta was the tenant of the schedule
premises forming part and parcel of Rungta House and after his death the
same was continued with by his son namely Kiritkumar Bachubhai Mehta
who later on by Deed of Assignment of Tenancy Rights dated 5th
October,1987 assigned and transferred all the tenancy rights in favour of
the appellant. That is how the appellant is in legal and rightful occupation/
possession of the schedule premises since 5th October,1987.
11 In the above premise, the learned counsel for the appellant
canvased and raised twofold submissions. Firstly, since the tenancy of the
original tenant was accepted by respondent no.1, the learned Estate Officer
erred in not considering the appellant as a lawful tenant of the schedule
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premises. Moreover, Kiritkumar Bachubhai Mehta being a heir of
Bachubhai Bhagwandas Mehta not only inherited the original tenancy but
lawfully assigned and transferred it in favour of appellant by Deed of
Assignment of Tenancy Rights dated 5th October,1987. Thus, for all
purposes, it is necessary to find out the status of Bachubhai Bhagwandas
Mehta as claimed by the appellant.
12 Deed of Conveyance dated 31st March,1967 is filed on record
at list Exh.6. I have carefully gone through the averments made therein. A
closer scrutiny of Deed of Conveyance would show that the property in
dispute was purchased by the President of India through Department of
Post from the then owners on 31st March,1967. The document is
conspicuously silent as to the existence of any tenancy rights. Even the
document does not show the existence of any encumbrance namely
tenancy. There is no reference of description of tenants, if any, occupying
the premises purchased by the Government of India. Therefore, to say that
the original tenants who were occupying the property in question were
accepted as tenants would be far fetched.
13 Assuming for the sake of arguments that there were some
tenants, then the nature of tenancy, their rights and liability visavis
tenancy is not at all proved on record. Merely because the appellant
was/is paying rent of schedule premises that fact in itself will not create a
valid tenancy.
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14 The second submission of the learned counsel for the appellant
is that since the building in question was acquired in 1967, in view of
provisions of the Bombay Rent Act,1947 and Maharashtra Rent Control
Act,1999, the appellant becomes protective tenant and he could not have
been evicted under the provisions of the Act. I have already pointed out
that the so called tenancy is not at all established. Moreover, as per
appellant's own case, he came in possession of the suit premises by Deed of
Assignment of Tenancy Rights dated 5th October,1987. This aspect has also
been highlighted by me in the earlier part of my discussion. In such
circumstances, the submission of learned counsel that the provisions of the
Act will not applicable to the case in hand cannot be accepted.
15 The learned counsel for the appellant, during the course of
arguments argued that the Estate Officer has erred in computing the
arrears and damages inasmuch as the appellant came into possession of the
schedule premises in the year 1987 whereas the arrears have been
computed from the year 1967. The learned counsel also invited my
attention to Schedule II to the impugned order. Upon perusal, it is seen
show that the arrears have been computed right from the year 1967. How
the arrears from 1967 came to be computed is nowhere explained in the
impugned order by the Estate Officer and, therefore, the damages so
awarded by learned Estate Officer are not sustainable.
16 I have carefully gone through the judgments cited (Supra) by
the learned counsel for appellant. Since it has not been proved to the
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satisfaction of this court that there were tenants in the premises including
the schedule premises at the time of purchase of the premises i.e. on 31st
March,1967, the ratio laid down therein with due respect shall not be
applicable to the case in hand.
17 In view of above, I pass the following order:
O R D E R
Misc.Appeal No.259/18 is partly allowed.
Order of eviction stands confirmed.
However, the learned Estate Officer is directed to consider the
claim of the respondent for damages afresh including the
question as to whether or not such claim or part thereof is
barred by limitation by affording opportunity to both the sides.
The Estate Officer shall dispose of the matter (question of
damages) within a period of three months from the date of
communication of this order.
R & P be sent back.
16/10/2019 (V. G. BISHT)
Principal Judge,
Gr.Bombay.
Dictated on : 16/10/2019
Transcribed on : 17/10/2019
Signed by HHJ on : 17/10/2019
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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: 17/10/2019 (5.10 p.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Shri V.G. BISHT(C.R.No.19)
Date of Pronouncement of Order 16th October,2019
Order signed by P.O. on 17th October,2019
Order uploaded on 17th October,2019
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