Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Misc.Appeal 176.18
CNR NO.: MHCC010074612018
Received on : 21/06/2018
Registered on : 27/06/2018
Decided on : 29/11/2018
Duration : Y M D
00 05 01
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Misc.Appeal No.176 of 2018
The Keraleeya Mahila Samaj
Mrs. Lilly Kutty Thomas (Secretary)
Beach House Compound,
S.V.S. Road, Adjacent to Mayor Bungalow,
Dadar (West), Mumbai 400 028. ..Appellant
V/s.
1. Municipal Corporation of Greater Mumbai
(Brihan Mumbai Mahanagar Palika)
A Corporation under the Mumbai Municipal
Corporation Act, 1888, having its office at
Mahanagar Palika Marg,
C.S.T., Mumbai – 400 001.
2. The Enquiry Officer,
F/South Ward Mumbai Officer Bldg.,
Dr. Babasaheb Ambedkar Road,
Parel, Mumbai – 400 012. ..Respondents
Coram : H.H.THE PRINCIPAL JUDGE
Mrs. P. V. GANEDIWALA
Dated : 29th November, 2018
(C.R.No.19)
Advocate Mr. Rajiv Narula with advocate Nutan Patel for appellants.
Advocate Mr. Dharmesh Vyas with advocate Mr. A. V. Diwate for the
respondents.
-- 1 of 22 --
2 Misc.Appeal 176.18
O R A L J U D G M E N T
The Order passed by the Enquiry Officer under Section
105B(1) of the Mumbai Municipal Corporation Act,1888 dated 5th
June,2018 directing eviction of the appellants from the Corporation
premises i.e. the land bearing C.S. No.501 and 502, Scheme No.57 of
Mahim Division, area 574 sq. mtrs. known as the Keraleeya Mahila
Samajam situated at Mayor Bungalow Compound, Cadel Road, (S.V.S.
Road), Dadar(W), Mumbai28 (hereinafter referred to as 'the enquiry
premises') is assailed in the present appeal.
2. The facts necessary to decide the present appeal are as
under:
The appellants–The Keraleeya Mahila Samajam is a public Trust
registered under the Bombay Public Trust Act,1950 bearing registration
no.F 909 dated 11th December,1961. The said Trust is engaged in
social, educational and cultural activities.
3. The respondent no.1 is the Municipal Corporation of
Greater Bombay (for short 'Corporation' or 'MCGM'), which is governed
by the Mumbai Municipal Corporation Act,1888 (for short 'MMC Act,
1888'). The respondent no.2 is the Enquiry Officer upon whom the
Municipal Commissioner of the respondent no.1 has delegated his
powers under Section 68 of the MMC Act,1888.
4. Undisputedly, by a letter bearing reference no.SR/20294 of
19521953 dated 28 th August,1953, the respondentCorporation allotted
a vacant piece of land admeasuring 320 sq.yards in Beach House
-- 2 of 22 --
3 Misc.Appeal 176.18
Compound, opp. Shivaji Park, Dadar, Mahim Division to the appellants
on a monthly tenancy for erecting a permanent structure for a hall and
a Ladies Welfare Centre. On 10th April,1957 a separate agreement was
executed between the parties. It was agreed that the tenancy is deemed
to have commenced from 7th May,1953 and shall continue until
determined by either party giving to the other, not less than a month's
notice in writing ending on any day in any month of the tenancy. The
rent agreed was Rs. 15 p.m. excluding taxes.
5. Accordingly, the appellants took possession of the enquiry
premises in the year 1953 and constructed a permanent structure with
16' height on the ground floor with a terrace roof.
6. By a second agreement dated 13th October,1956, the
appellants were alloted additional 113 sq. yards area of the land in the
same premises for the purpose of an open Badminton Court and the
tenancy for the same is deemed to have commenced from 1st April,1954,
on the terms and conditions as set out therein. The rent fixed was Rs. 1
p.m. excluding taxes. It was specifically mentioned in clause 12 of the
said agreement that the Corporation shall withdraw the permission by
giving 14 days' notice to the licensee and the licensee shall at the
expiration thereof vacate and deliver vacant and peaceful possession of
the said piece of land to the Corporation. As per clause 13 of the said
agreement, upon termination it shall be lawful for any Municipal Officer
of the Corporation to take possession of the said piece of land on behalf
of the Corporation.
7. It is the case of the respondentMunicipal Corporation that
by a Government Resolution dated 4th December, 2014, a High Power
-- 3 of 22 --
4 Misc.Appeal 176.18
Committee under the Chairmanship of the Chief Secretary was
constituted by the Government of Maharashtra to identify a site and
other allied purposes for the construction of a memorial of late Shri.
Bala Saheb Thackrey, he being one of the most popular leaders of the
State of Maharashtra. The High Power Committee held series of
meetings and short listed a few sites for the construction of the
memorial. The High Power Committee decided that the site of Mayor's
Bungalow at Dadar, Shivaji Park would be the most ideal site for
construction of memorial of late Shri Bala Saheb Thackrey. The High
Power Committee submitted its report in June 2015. Accordingly, the
Deputy Secretary, Government of Maharashtra vide his letter dated 22nd
January,2016 wrote to the Municipal Commissioner to initiate the
necessary proceedings immediately so that the said piece of land can be
transferred on 30 years lease to the proposed Trust for the said purpose.
8. Accordingly, the Corporation issued a quit notice dated
23rd March 2016. The appellants replied the same and also challenged
it before the Hon'ble Bombay High Court in Writ Petition being W.P.
No.1709 of 2016. By an order dated 5th May, 2017, the Division Bench
of Hon'ble High Court was pleased to dispose of the said Writ Petition
and directed MCGM to adopt the procedure laid down in Chapter VA of
the MMC Act,1888 against the appellants.
9. Accordingly, the Corporation issued another quit notice
dated 8th September, 2017 to the appellants. In the said notice the
reference of the earlier eviction notice dated 23rd March,2016 was also
made. By the said notice, the tenancy of the appellants was terminated
and the appellants were directed to hand over the peaceful and vacant
possession of the land. The appellants were also assured of being
-- 4 of 22 --
5 Misc.Appeal 176.18
provided with equivalent area of the structure at “ParasGopal”, at
Matkar Marg, Dadar(W).
10. As the appellants have failed to vacate the enquiry premises
within the notice period, the enquiry as contemplated under chapter V
A of the MMC Act, 1888 was initiated before the Enquiry Officer, the
delegate of the Commissioner.
11. On being satisfied about the need of the enquiry premises
for the public purpose, on 27th October, 2017 the learned Enquiry
Officer issued a statutory show cause notice under Section 105B(2) of
the MMC Act, 1888 to the appellants. The appellants in their written
statement before the Enquiry Officer stated that the quit notice issued to
the appellants is badinlaw and an arbitrary act on behalf of the
respondents without any justification whatsoever. The appellants have
been in use and occupation of the enquiry premises from the year 1953.
The proposed alternative accommodation is the area of the structure
and not the area of the enquiry premises. It is not at all suitable for the
members of the appellants particularly since the members are senior
citizens and cannot climb second floor to reach the alternate
accommodation.
12. It is further the case of the appellants before the Enquiry
Officer that the appellants have been paying Municipal Assessment to
the MCGM for the past fifty years and more. The appellants are running
a school for nursery classes with well qualified teachers, well attended
by children from in and around Shivaji Park area. The appellants are
also holding Yoga Classes, dance classes, instrumental music classes and
art classes in the enquiry premises. Grave inconvenience will be caused
-- 5 of 22 --
6 Misc.Appeal 176.18
to lot of persons including the members of the appellants.
13. The appellants further state that the appellants have been
in authorized occupation of the enquiry premises. The appellants have
not committed any breach of the provisions of Section 105B of the MMC
Act,1888. The eviction notice dated 8th September,2017 does not
specify that the enquiry premises is required by the MCGM in the public
interest and therefore the provision of Section 105B(c) is attracted.
14. I have heard learned counsel Shri Rajiv Narula on behalf of
the appellants and learned counsel Shri Dharmesh Vyas on behalf of the
Corporation. The following points arise for my consideration and my
findings thereon are as under for the reasons to follow:
POINTS FINDINGS
1. Whether the impugned order
directing eviction of the appellants
u/s.105B(1)(c) of the MMC Act, ..In the affirmative
1888 is legal, proper and correct?
2. What order? ..As per final order
R E A S O N S
15. Point no.1: At the outset, the eviction is directed on the
ground that the Corporation requires the enquiry premises in public
interest under Section 105B(1)(c) of the MMC Act i.e. for giving on
lease the enquiry premises for erection of late Shri. Bala Saheb
Thackrey Rashtriya Smarak.
-- 6 of 22 --
7 Misc.Appeal 176.18
16. It is the main contention of the learned counsel for the
appellants that the appellants, being a Trust having more than 300
members and is in possession of the inquiry premises since more than
64 years and carrying on its social, cultural and educational activities.
The issuance of impugned eviction notice and subsequent eviction order
for the purported purpose of erection of Bala Saheb Thackrey Rashtriya
Smarak is altogether arbitrary and capricious exercise of the powers of
public body like the Municipal Corporation. Learned counsel
vehemently argued on the point of public interest and emphasised that
the purported purpose for which the eviction is sought does not come
within the purview of public interest. In support of his arguments,
learned counsel relied on the catena of judgments of Hon'ble Apex
Court and Bombay Hon'ble High Court which I propose to discuss in the
later part of this judgment.
17. Per Contra, the learned counsel for the respondents drew
my attention to the termination clauses in both the agreements between
the parties and submitted that the MCGM is entitled to take back the
possession of their land on determination of tenancy. After the tenancy
has been terminated, the appellants are in illegal use and occupation of
the Corporation premises which are required by the Corporation in the
public interest. Moreover, the respondents have already offered two
sites in Dadar itself, which is within 3 (three) kilometers from the
present site. The Hon'ble Bombay High Court in the above said Writ
Petition had also directed the appellants to approach the Municipal
Corporation for the purpose of amicable solution. However, till today
neither the appellants have approached the Municipal Commissioner
nor have considered the offer given by the respondents. In support of
his argument the learned counsel placed his reliance in the case of
-- 7 of 22 --
8 Misc.Appeal 176.18
Nandkumar Ganpat Patankar V/s MCGM and anr. reported in 2014
(3) Bom. C.R. 65, wherein it is held thus,
“6.they are offering alternate accommodations to all these
commercial structures, which are admittedly on the
Corporation land but owned by them, since more than 20
years. The question of development and/or modification, if
within the scope and power, subject to providing alternate
accommodation and/or accommodating therm at the
appropriate place, the Corporation is entitled to proceed in
accordance with law.
8.It is difficult to restrict the Corporation from taking
possession of their own land when the question is about a
beautification and/or development of the area. The balance
needs to be struck by the occupants on the Corporation land
and the Corporation to provide them alternate commercial
structures.”
18. Learned counsel further submits that the respondent no.1
MCGM is the owner of the land and the same is required for public
purpose. The respondents by following due process of Law and in the
most bonafide manner, attempted to provide alternate accommodation
to the appellants in spite of the fact that the appellants had entered into
an agreement under the Vacant Land Tenancy Act and as such the
appellants are not entitled for any alternate accommodation but still in
the interest of justice, the appellants were offered the same.
19. I have considered the submissions on behalf of both the
parties. In order to better understand the powers of the Corporation
and its authorities relating to its property under MMC Act, 1888, it is
necessary to see the relevant provisions of the said Act.
20. First and foremost, undisputedly, the inquiry premises is
-- 8 of 22 --
9 Misc.Appeal 176.18
the Corporation premises within the definition of section 105A (b) of
the MMC Act, 1888. As per this definition :
' “corporation premises” means any premises belonging to, or
vesting in, or taken on lease by the Corporation;'
21. Chapter V of the MMC Act, 1888 is dedicated for Municipal
Properties and Liabilities. Section 92 of the Chapter V of the Act
empowers the Commissioner to dispose of by sale or otherwise of any
movable property or grant a lease of any immovable property belonging
to the Corporation, subject to such restrictions as provided in the said
Section. Under Section 92 (dd), the Commissioner is empowered,
subject to the sanction of the Corporation and with the approval of the
State Government to grant a lease of immovable property belonging to
the Corporation. For ready reference, Section 92 (dd) reads thus :
'(dd) notwithstanding anything contained in this section, the
Commissioner may, with the sanction of the Corporation, and
with the approval of the State Government, grant a lease of
immovable property belonging to the Corporation to a
Cooperative Housing Society formed exclusively by the officers
and servants of the Corporation, or to a public trust exclusively
for medical and educational purposes registered under the
Bombay Public Trusts Act, 1950 or to a society registered under
the Societies Registration Act, 1860 or the Maharashtra
Cooperative Societies Act, 1960, a public trust registered under
the Bombay Public Trust Act, 1950, or a company registered
under the Companies Act, 1956 or any person for the purposes
of provision of public latrines, urinals and similar conveniences
or construction of a plant for processing excrementitious and
other filthy matters of garbages, or to a person who is dishoused
as a result of the implementation of any Development Scheme of
the Corporation or to a Cooperative Housing Society formed
exclusively by the persons who are dishoused as a result of the
implementation of any Development Scheme of the
Corporations, at such rent, which may be less than the market
value of the premium, rent, or other consideration, for the grant
of such lease, and subject to such conditions, as may be provided
-- 9 of 22 --
10 Misc.Appeal 176.18
by the byelaws made under section 461;
22. Learned counsel for the respondentCorporation brought to
the notice of this court the recent amendment made in Section 92 of the
MMC Act,1888 which inserted new clause to section 92 i.e. 92(dd1)
vide Mumbai Municipal Corporation (Amendment) Act, 1888
empowering the Municipal Commissioner to grant on lease the
immovable property belonging to the Corporation i.e. CTS/FP No.501,
502 and 1495 (501 and 502 is the enquiry premises) for the purpose of
erection of a memorial of late Shri Bala Saheb Thackrey, to the Society
namely, the Bala Saheb Thackrey Rashtriya Smarak.
The said newly inserted clause is reproduced below :
'92 (dd1)
“Notwithstanding anything contained in this Section, the
Commissioner may, with the sanction of the Corporation and
with the approval of the State Government, grant a lease of
immovable property belonging to the Corporation, namely
CTS/FP No.501, 502 and 1495, Mahim Division, along with
structures situated thereon, for the purpose of erection of a
memorial of late Shri Bala Saheb Thackrey, to the Society
namely, the Bala Saheb Thackrey Rashtriya Smarak, a society
registered under the Societies Registration Act, 1860, at a
nominal rent of rupee one for the grant of such lease, and
subject to the terms and conditions as may be decided by the
State Government” '.
23. It would be useful in the present context to see the
appointment and the scope of the powers of the Commissioner under
the MMC Act, 1888. Section 3 (d) of the MMC Act, 1888 provides the
definition of the Commissioner which reads thus :
' “the Commissioner” means the Municipal Commissioner for
Brihan Mumbai appointed under section 54 and includes an
Additional Municipal Commissioner appointed under sub
section (3) of Section 54 and an acting Commissioner appointed
-- 10 of 22 --
11 Misc.Appeal 176.18
under subsection (3) of Section 59;'
24. As per Section 54 of the said Act, the Municipal
Commissioner for Brihan Mumbai is appointed from time to time by the
State Government and he holds office for such period not exceeding
three years as the State Government may fix and his appointment may
be renewed by the State Government for a further period not exceeding
three years.
25. In this context, the Hon'ble Apex Court in the case of
Ahmedabad Municipal Corporation v/s. Ramanlal Govindram &
Ors. reported in (1975)1 SCC 778 has observed that :
“ He (Commissioner) is the highest officer of the Corporation.
There is no personal interest of the Municipal Corporation in
evicting the respondents. The Corporation represents public
interest. The Municipal Commissioner acts in public duty in
aid of public interest. If the Municipal Commissioner wrongly
exercises his power the action will be corrected in appeal.”
26. Chapter VA was inserted to the MMC Act, 1888 vide
Bombay Municipal Corporation(Amendment) Act of 1960. Chapter VA
is a self contained Code. It empowers the Commissioner to evict the
unauthorised occupants from the Corporation premises as per the
summary procedure laid down in the said chapter. It is a speedier
remedy than the ordinary Rent Act remedy. The constitutional validity
of this chapter is upheld by the Constitution seven Judge Bench
judgment of Hon'ble Apex Court in the case of Maganlal Chhaganlal
(P) Ltd. V/s Municipal Corporation of Greater Bombay and Others
reported in (1974) 2 SCC 402.
-- 11 of 22 --
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27. Section 105B of Chapter VA empowers the Commissioner
to evict persons from the Corporation premises. For ready reference,
Section 105B is reproduced below :
'105B. Power to evict person from Corporation premises.
(1) Where the Commissioner is satisfied
(a) that the person authorised to occupy any corporation
premises has, whether before or after the commencement of the
Bombay Municipal Corporation (Amendment) Act, 1960,
(i) not paid for a period of more than two months, [the
rent, taxes, fees or compensation] lawfully due from him
in respect of such premises; or
(ii) sublet, the whole or any part of such premises; or
(iii) committed, or is committing, such acts of waste as are
likely to diminish materially the value, or impair
substantially the utility, of the premises; or
(iv) otherwise acted in contravention of any of the terms,
express or implied, under which he is authorised to occupy
such premises;
(b) that any person is in unauthorised occupation of any
corporation premises;
(c) that any corporation premises in the occupation of any
person are required by the corporation in the public interest,
the Commissioner may notwithstanding anything contained in
any law for the time being in force, by notice (served by post, or
by affixing a copy of it on the outer door or some other
conspicuous part of such premises, or in such other manner as
may be provided for by regulations), order that that person, as
well as any other person who may in occupation of the whole or
any part of the premises, shall vacate them within one month of
the date of the service of the notice.'
28. Chapter III of the MMC Act, 1888 deals with the duties and
powers of the Municipal Authorities. Section 68 of the said chapter
permits the Commissioner to delegate to any Municipal Officer, any of
his powers, duties and functions conferred upon, assigned to or vested
in the Corporation by or under this Act, to be exercised, performed or
discharged by that Municipal officer, by general or special order made,
-- 12 of 22 --
13 Misc.Appeal 176.18
from time to time, in this behalf.
29. The validity of Section 68 of the MMC Act was raised
before the Hon'ble Apex Court in the case of Mumbai Municipal
Corporation v/s. Dhondu Narayan Chaudhary 1965 Mh.L.J (S.C)
510 and the Hon'ble Apex Court upheld its validity. The same judgment
is relied on by the Hon'ble Bombay High Court in the case of
Ramchandra Jivatram V/s Pune Municipal Corporation reported in
(2013) 1 Mah.L.J. 245.
30. In the case in hand, the Enquiry Officer, the delegate of the
Commissioner as above, issued a show cause notice dated 27th
October,2017 under sub Section 2 of Section 105 B of the Act against
the appellants on the ground of 'public interest' i.e. public purpose.
31. Section 105B (1)(c) of the MMC, Act, as stated earlier
provides that when the Commissioner is satisfied that any Corporation
premises in the occupation of any person are required by the
Corporation in the public interest, the Commissioner may order that
person, as well as any other person who may be in occupation of the
whole or any part of the premises, shall vacate it within one month
from the date of the service of the notice.
32. On perusal of the aforesaid provisions, it is clear that for
exercising the powers of eviction by the Commissioner, the satisfaction
of the Commissioner as regards the availability of the ground of eviction
is necessary.
33. The learned counsel for the appellants has rightly relied on
-- 13 of 22 --
14 Misc.Appeal 176.18
the judgment of the Hon'ble Apex Court in the case of Prakash
Warehousing Co. V/s Muncipal Corporation of Greater Bombay and
anr. reported in (1991) 2 SCC 304 wherein it is observed that
satisfaction of the Commissioner is the condition precedent to the
exercise of powers of eviction by the summary procedure prescribed by
the Act. It is further observed that the Commissioner has to satisfy
himself in the case falling under clause (1)(c) of Section 105 B as
regards the public interest requiring eviction. The Hon'ble Court further
listed the various grounds which would come within the purview of
public interest viz. construction of parks, playgrounds, hospitals,
colleges, markets, destitute homes and the like. In this context, the
learned counsel for the appellants argued that the ground of erection of
the statue of any political leader is not mentioned in this list. I do not
find merit in this submission. The grounds as enumerated in the
aforesaid judgment are those amongst various other grounds. The list is
illustrative and not exhaustive.
34. As against this, the learned counsel for the respondent
Corporation placed reliance on the judgment in the case of Kanaiyala
Maneklal Chinai and anr. V/s The State of Gujarat and ors. reported
in AIR 1970 SC 1188, wherein it is observed as under:
“The land is needed for setting up a Memorial to
Mahatma Gandhi at a place associated with him, and it
should be regarded, because of the universal veneration
in which the memory of Mahatma Gandhi is held in our
country, that the purpose was a public purpose. The
purpose of acquisition being one which falls within the
normal connotation of the expression “public purpose”
within the meaning of Section 4 of the Land Acquisition
Act,
-- 14 of 22 --
15 Misc.Appeal 176.18
The Land Acquisition Act does not provide that the
instrumentality which is to carry out the purpose must
be set out in the notifications under Sections 4 and 6 of
the Act. Failure to specify the instrumentality which is to
execute the public purpose does not affect the validity of
the notification either under Section 4 or under Section 6
of the Land Acquisition Act.”
In the above referred judgment, the private land was acquired by the
Government under the Land Acquisition Act, 1894 for public purpose
i.e. the setting up a memorial to Mahatma Gandhi at a place associated
with him. The learned counsel for the appellants strenuously argued
that the abovesaid judgment cannot be applied to the facts of the
present case. In my opinion, the facts of the present case are on better
footing. In this case, there is no question of acquisition of the private
land. The Corporation, guided by the Government policy, is taking
possession of its own land which was given on lease for monthly basis
terminable with 30 days notice on either side. Moreover, the
Corporation has offered the appellants two alternate premises, though
the same is not obligatory for the Corporation neither under the Act nor
under the agreement between the parties governing lease.
35. The MMC Act, 1888 and particularly chapter VA of the
said Act does not provide for any guiding principles for the
Commissioner to reach his satisfaction for passing an order of eviction
especially on the ground of public interest. In this context, in the case
of Bibi Batool Jafer Gulam Hussein Versus The Principal Judge, City
Civil Court, Bombay AIR 1972 Bom 254, the Hon'ble Apex Court after
referring to a catena of cases, held that such guiding principles may be
specifically stated in the Act itself or they can be gathered from the
various provisions of that Act, including its title and preamble or even
-- 15 of 22 --
16 Misc.Appeal 176.18
from the Statement of Objects and Reasons of the Act. Such guiding
principles may also be yielded by the surrounding circumstances which
existed at the date of the legislation and which occasioned the
legislation.
36. Apparently, in the instant case, in view of the policy of the
Government followed by recent amendment in the MMC Act, 1888 as
stated earlier, thereby empowering the Commissioner to give on lease
the enquiry premises to the society i.e. the Bala Saheb Thackrey
Rashtriya Smarak to construct a memorial in the memory of Late Shri.
Bala Saheb Thackrey, the Commissioner had no option but to initiate
the eviction proceedings. Accordingly, the eviction notice and thereafter
the impugned eviction order was passed after giving proper opportunity
of hearing to the appellants and after recording evidence as adduced by
both the parties. The evidence of the Administrative officer (Estate),
G/North Ward was recorded before the Enquiry officer and he was cross
examined at length by the appellants herein. On the other hand, the
appellants examined Mrs. Lilly George, Chair person of the appellants as
a witness and she was cross examined by the respondent herein. Both
parties also filed certain documents before the learned Enquiry Officer.
37. The definition of 'Public Interest' as relied on by the learned
counsel for the appellants from the Law Lexicon according to which
“the expression 'public interest' is not capable of precise definition and
has not a rigid meaning and is elastic and takes its colours from the
statute in which it occurs, the concept varying with the time and state
for society and its needs. What is 'Public interest' today may not be so
considered a decade later”.
This definition is squarely applicable to the facts of the present
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17 Misc.Appeal 176.18
case. 'Public interest' is not capable of any precise definition. It takes
colours from the statutes in which it occurs. In the instant case, the
public interest according to the Corporation is giving on lease the
Corporation land to the Bala Saheb Thackrey Rashtriya Smarak, a
society registered under Societies' Registration Act, as per the policy of
the Government, which has backing from the State Legislature as can be
seen from the Mumbai Municipal Corporation (Amendment) Act, 2017.
There is no question for the Enquiry Officer to hold otherwise. As
stated earlier, the Corporation being a public body, and the
Commissioner, a public officer, works in public interest.
38. The learned counsel for the appellant also relied on the
judgment in case of Ashok Kumar Pandey V/s State of West Bengal
reported in (2004) 3 SCC 349 wherein the Hon'ble Apex Court relied
on the definition of public interest as defined in Shrouds Judicial
Dictionary and Black's Law Dictionary in the context for deciding locus
standi of the third party to challenge the sentence of death by way of
public interest litigation. The same, with due respect, would not be
applicable in the present context.
39. The Government of Maharashtra have already taken a
policy decision and proceeded accordingly to the extent of amending
MMC Act itself and empowering the Municipal Commissioner to grant
lease of the inquiry premises to the Bala Saheb Thackrey Rashtriya
Smarak, a society registered under the Societies' Registration Act. In
my opinion, the role of the Commissioner herein is limited only to the
extent to observe due process of law. The ownership of the Corporation
to the enquiry premises is not disputed. The lease agreements dated 1st
April,1954 and 10th April,1957 are also not disputed. The termination
-- 17 of 22 --
18 Misc.Appeal 176.18
clauses in both the agreements are also not disputed. The Corporation
has already issued quit notices dated 23rd March,2016 and 8th
September,2017 and the same were received by the appellants.
40. The appellants being a Trust, which is in existence since
more than 64 years and carrying on cultural, educational and social
activities and the Corporation, being a public body, to show its
bonafide, has already offered two proposals for alternative
accommodation of the equivalent area within the periphery of 3 kilo
mtrs. of the inquiry premises. The order of eviction, in my opinion,
does not appear to have been passed in an arbitrary or capricious
manner.
41. Furthermore, as rightly pointed out by the learned counsel
Mr.Pandey on behalf of the Corporation that this forum is not an
appropriate forum to decide whether the policy of the Government to
erect Smarak of Swargiya Bala Saheb Thackrey would come within the
spirit of public interest or not.
42. Learned counsel for the appellants also pointed out
Sections 61 and 63 of the MMC Act,1888 which relate to obligatory and
discretionary duties of the Corporation and submitted that the proposed
purpose for erection of Smarak of Swargiya Bala Saheb Thackrey does
not come within the powers and duties of the Corporation. In support
of his argument, learned counsel relied on the judgment of the Hon'ble
Bombay High Court in the case of Bombay Municipal Corporation
V/s. Ramchandra Belosay, Bombay reported in AIR 1969 Bombay
58 wherein it has been held that statutory authorities and its powers
are limited by the provisions of the Act by which it is created.
-- 18 of 22 --
19 Misc.Appeal 176.18
43. As against this, learned counsel for the Corporation pointed
out Section 92 of the MMC Act,1888 which deals with the powers of the
Municipal Commissioner with respect to disposal of municipal property.
I found force in the submissions of the learned counsel on behalf of the
Corporation. As stated earlier, the Commissioner is empowered to give
on lease the Corporation premises subject to the prior approval of the
standing committee and the State Government etc. as mentioned under
Section 92 of MMC Act,1888 itself.
44. It is pertinent to note here that there is no grievance from
the side of the appellants that the appellants have not been given
proper opportunity of hearing or that the principles of natural justice
have not been followed. Evidently, after following due process of law
as directed by the Hon'ble Bombay High Court in the aforesaid Writ
Petition No.1709 of 2016 and after exploring the possibilities of
amicable settlement between the parties by offering alternate
accommodation of equivalent size to the appellants, the Corporation
exhibited its bonafide and thereafter proceeded under Section 105B of
the MMC Act,1888.
45. The learned Enquiry Officer in the impugned order
observed that the quit notice dated 23rd March,2016 came to be issued
to the appellants after the decision of the Government of Maharashtra
to develop Swargiya Bala Saheb Thackrey Smarak at Mayor's bungalow.
The said decision was taken on the basis of the recommendations of the
High Power Committee and thereafter it was decided to terminate the
Vacant Land Tenancy (VLT) of the appellants and to take possession of
the Mayor's bungalow including the inquiry premises for construction of
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20 Misc.Appeal 176.18
the Swargiya Bala Saheb Thackrey Smarak. The appellants have refused
to accept the offer of alternate accommodation of the equivalent area of
the inquiry premises at 'Parasgopal' and 'Tykal Wadi', Dadar. Therefore,
the Municipal Corporation by notice dated 8th September,2017 has
terminated tenancy rights of the appellants to occupy the inquiry
premises.
46. As regards public purpose, the learned Enquiry Officer
observed that the inquiry premises is required for the purpose of
erection of the Smarak of Swargiya Bala Saheb Thackrey which will be
used for public at large and the expression of public purpose has been
used in generic sense. The relevant para in the judgment is reproduced
thus:
“It may be stated that the expression Public Purpose
has been used in generic sense. It includes a purpose in
which the general interest of the community as opposed to
particular interest of individuals is directly concerned. It will
also include the purpose in which fraction of community is
interested. All that is necessary is that it should served the
general interest of the society. It is well settled that Public
Purpose varies with the times and prevailing conditions in
localities Government of Hariyana, Chandigharh V/s.
Hakam Singh, 1979 Punj. L.R. 340 at P.345.”
47. On perusal of the impugned order minutely, I do not find
any perversity or illegality in the said order. The learned Enquiry
Officer rightly considered the policy of the Government and the
evidence on record and reached to his satisfaction that the inquiry
premises is required in the public interest. No interference is warranted.
I answer the point accordingly and pass the following order:
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21 Misc.Appeal 176.18
O R D E R
1) Misc.Appeal No.176/18 stands dismissed with costs.
2) R & P be sent back.
29/11/2018 (P.V. GANEDIWALA)
Principal Judge,
Gr.Bombay.
Dictated on : 29/11/2018
Transcribed on : 30/11/2018
Signed by HHJ on :
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22 Misc.Appeal 176.18
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER
Name of Stenographers: Mrs.Aruna S. Jayade
Upload date and time: 01/12/2018 (At 5.00 p.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Mrs.P.V.GANEDIWALA(C.R.No.19)
Date of Pronouncement of Order 29th November,2018
Order signed by P.O. on 1st December,2018
Order uploaded on 1st December,2018
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