Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
MHCC010078412018 Received on : 28.06.2018
Registered on : 01.09.2018
Decided on : 09.02.2023
Duration : Y.4:M.7:D11
Exhibit :
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
MISC. APPEAL NO.201 OF 2018
(Enquiry No.109/ME/ESTT of 2017 dt. 30.05.2018)
CNR No.MHCC010078412018
Mohammed Chand Shaikh (Deleted)
Retired Municipal Employee,
Aged 74 years
R/at : Room No.20, Block No.E11
New Deonar Municipal Colony,
Govandi, Mumbai 400 043.
1(a) Naeemuddin Mohammad Shaikh
S/O Salahuddin Shaikh
Since deceased
Occ : Retired
Age : 61 years
R/at : Room no. 20, Block No. E11,
New Deonar Municipal Colony,
Govandi, Mumbai 400 043. ... Appellant/
(Org.Respondent)
Versus
1. The Municipal Corporation of Greater Mumbai,
A body Corporate constituted
under the Mumbai Municipal Corporation
Act 1888 having its principal office at
Mahapalika Marg, Mumbai 400 001 … (Respondent)
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CORAM : H.H.THE PRINCIPAL JUDGE
SHRI A.SUBRAMANIAM(C.R.No.19)
DATED : 9th FEBRUARY 2023
Ld.Counsel Mr.P.D.Gandhy a/w Suraj Iyer, Adv.Kunal Vaishanav,
Adv.Mani Thevar, Adv.Hardik Desai and Adv.Kavita Sharma I/b
M/s.Ganesh & Co. for appellant.
Ld. Counsel Mr. Dharmesh Vyas a/w Adv. Gajanan Giri for
Respondents/BMC.
ORAL JUDGMENT
1. By the present appeal, the appellant is challenging the eviction order
passed by the learned Enquiry Officer of BMC.
2. This is the group of 300 plus proceedings and all appeals were argued
by common arguments by the appellants and nearly similar arguments
on behalf of the respondents. Considering the common issues being
involved in all the matters, the appeals are disposed of by common
order, it is only by way of convenience that separate orders are placed
in each of the matters.
3. It is the case of the appellant that the eviction proceedings have been
initiated on behalf of the Corporation alleging that appellants are
residing staff quarters after the death/retirement of allottee. . Directions
are given in a Writ Petition preferred by some persons. The Corporation
contends that the premises in question are staff quarters and they are
allotted to the employees by way of staff quarter. The said concerned
employee has retired/expired and their legal heirs are occupying the
premises in most of the cases. They have failed to vacate the premises
inspite of repeated requests and considering the same, notices were
issued. The concerned employees preferred Writ Petition through their
Society alleging that the Corporation had assured them that the
premises would be given to them on ownership basis and asking for
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such compliance. It has been held by the Hon'ble High Court that there
was no such finality of agreement, and considering the same the claim
of the said employee was rejected by the Hon'ble High Court. The SLP
filed against the said order has also rejected by the Hon'ble Supreme
Court of India and said order has attained finality. In such
circumstances, it is prayed that the notices were issued requesting the
concerned employees and their legal heirs to vacate the premises and
having failed to do so and found them to be an unauthorized occupant,
notices as contemplated under ChapterVA of MMC Act have been
issued. On failure thereof necessary present proceedings have been
initiated resulting in impugned order. The Corporation has served
notices on all the appellants and after due enquiry, impugned order has
been passed in all the proceedings.
4. The appellant/original opponent contends that principles of natural
justice have not been followed. So much so that there is no individual
personal hearing was not given to each of the party. The contentions
raised by the appellants are not considered in true sense. The aspect of
part performance, limitation etc. have not been considered by the
learned Court in proper perspective. Considering the various aspect of
the case, it is pointed out that there are various issues involved which
violates principles of natural justice. On the same day the order was
passed in 350 matters. Crossexamination was shown conducted in all
the matters on the same day and individually matters are not
considered. Thus, considering these aspects, there is violation of
principles of natural justice. In similar matters the Hon'ble High Court
remanded the case back to the learned Enquiry Officer for a fresh
hearing and in connected matters, various issues have been required to
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be formulated for consideration of the issues before the learned Enquiry
Officer. Considering the same, there is no proper appreciation of the
facts of the case and hence the impugned order requires to be set aside.
5. Perused the written arguments as well as considered the oral
submissions of the parties as advanced herein before.
6. Perused the record and proceedings of the matter, impugned order,
appeal memo and considered the submissions, following points arise for
my consideration and I answer the same as under for the reasons stated
hereinafter:
Sr.
Nos. POINTS FINDINGS
1. Whether the principles of natural justice
are violated? :: In the
Negative
2. Whether the appellant is said to be
unauthorized occupant? :: In the
Affirmative
3. Whether the impugned order requires
an interference? :: In the
Negative
4. What order? :: As per final order
REASONS
As to Point No.1:
7. The vehement contention is that these group of matters were before the
learned Enquiry Officer and no proper separate hearing was given in
each of the matter. It is contended that the appellant herein has
different defences and considering the same, the matters ought to have
been considered in the same perspective. Each and every matter has to
be considered differently considering the facts that some of the
appellants are employees and others are legal heirs and some have
retired at different ages of time and hence have different rights. It is
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further contended that the various aspects of the case so as to
differentiate between the order passed in Writ Petition are not
considered and considering the same, it requires a fresh hearing.
8. In support of their contentions, the appellant has relied upon the
following judgments:
1. Bharti Santosh Bhosale V/s. Municipal Corporation of
Gr.Mumbai – Thhrough Municipal Commissioner & Anr in
Writ Petition No.6989 of 2021 along with Group matters order
dated 08th December 2021 of the Hon'ble Bombay wherein it
is held
4. In modern administration set up, what is important is the
fairness of procedure with elimination with elements of
arbitrariness. The Apex Court in the case of Management of M/s
M.S. Nally Bharat Engineering Co. Ltd. v. The State of Bihar&
Ors., reported in (1990) 2 SCC 48 has held as under.
"29. The State functionaries must act fairly and reasonably. That
is, however, not the same thing to state that they must act
judicially or quasi-judicially. The term 'fairness in procedure' 'fair
play in action', 'duty to act fairly' are perhaps used as alternatives
to 'natural justice' without drawing any distinction. But, such
phrases may sometimes be used to refer not to the obligation to
observe the principles of natural justice but, on the contrary, to
refer to a standard of behavior which increasingly, the courts
require to be followed even in circumstances where the duty to
observe natural justice is inapplicable. Fairness is a rule to
ensure that ast power in modern state is not abused but properly
exercised. The State power is used for proper and not for
improper purposes. Fairness is also a principle to ensure that
statutory authority arrives at a just decision either in promoting
the interest or affecting the rights of persons. The use the time
hallowed phrase that justice should not only be done but be seen
to be done' is the essence of fairness equally applicable to
administrative authorities. ...”
2. Vivek Gawade V/s Municipal Corporation of Gr.Mumbai and
others In Writ Petition No.5983 of 2022 along with Group
matters order dated 19th July 2022 of the Hon'ble Bombay
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High Court. Of framing of issues
3. Kranti Associates Pvt.Ltd. & Anr. V/s. Masood Ahmed Khan &
Ors. (2010)9 SCC 496.
The necessity of giving reason by a body or authority in support
of its decision came up for consideration before this Court in
several cases. ....The Commissioner, Hindu Religious and
Charitable Endowments Dept. and Ors., AIR 1980 SC 1, while
giving the majority judgment Chief Justice Y.V. Chandrachud
referred to Broom's Legal Maxims (1939 Edition, page 97)
where the principle in Latin runs as follows:
"Ces-sante Ratione Legis Cessat Ipsa Lex"
34. The English version of the said principle given by the Chief
Justice is that:"Reason is the soul of the law, and when the reason
of any particular law ceases, so does the law itself." (See para 29
page 11) .........h. The ongoing judicial trend in all countries
committed to rule of law and constitutional governance is in
favour of reasoned decisions based on relevant facts. This is
virtually the life blood of judicial decision making justifying the
principle that reason is the soul of justice. i. Judicial or even
quasi-judicial opinions these days can be as different as the
judges and authorities who deliver them. All these decisions serve
one common purpose which is to demonstrate by reason that the
relevant factors have been objectively considered. This is
important for sustaining the litigants' faith in the justice delivery
system.
4. Kashish Park Realty Pvt. Ltd. & Anr. V/s. State of
Maharashtra (2021(3) Mh.L.J.
If a Judge or a quasi-judicial authority is not candid enough
about his/her decision making process then it is impossible to
know whether the person deciding is faithful to the doctrine of
precedent or to principles of incrementalism. l. Reasons in
support of decisions must be cogent, clear and succinct. A
pretence of reasons or `rubber-stamp reasons' is not to be equated
with a valid decision making process. m. It cannot be doubted that
transparency is the sine qua non of restraint on abuse of judicial
powers. Transparency in decision making not only makes the
judges and decision makers less prone to errors but also makes
them subject to broader scrutiny. (See David Shapiro in Defence
of Judicial Candor (1987) 100 Harward Law Review 731-737).
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9. In support of their contentions, the Corporation/Respondents herein
have relied upon the following judgments:
1. Ajit Kumar Nag V/s General Manager(PJ), Indian Oil Corpn. Ltd.,
Haldia & Ors., (2005)7 SCC 764,
The Court, however, observed that in certain circumstances,
application of the principles of natural justice could be modified
and even excluded. Both in England and in India, it is well
established that where a right to a prior notice and an
opportunity to be heard before an order is passed would obstruct
in the taking of prompt action, such a right could be excluded. It
could also be excluded where the nature of the action to be taken,
its object and purpose and the scheme of the relevant statutory
provisions warrant its exclusion. The maxim audi alteram partem
could not be invoked if import of such maxim would have the
effect of paralysing the administrative process or where the need
for promptitude or the urgency so demands. .....Thus, where the
second proviso applies, though there is no prior opportunity to a
government servant to defend himself against the charges made
against him, he has the opportunity to show in an appeal filed by
him that the charges made against him are not true. This would
be a sufficient compliance with the requirements of natural
justice.
2. Dayaram Maurya & Ors V/s. MCGM, 2005(4) Mh.L.J 763
12. As the very name suggests, the principles of natural justice
are not statutory and evolved by the Court is order to do justice
naturally between the parties. They are not static. The manner in
which the principles of natural justice are to be observed and
followed also cannot be static and may vary from case to case.
Broadly speaking the principles of natural justice are :
(i) The person concerned should know the nature of accusation
made. The accusation, the charge or the improper conduct
alleged against a person must be told to the person clearly.
(ii) The person concerned should be given an opportunity to state
his case. Whether the opportunity of hearing would include a
personal hearing or only an opportunity of making written
submissions would depend upon the facts and circumstances of
each case. Though hearing in person or through a counsel is
usually allowed, there may be exceptions and in a given case an
opportunity to make written submissions may suffice.
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(iii) The tribunal or the authority taking a decision should act
fairly and in good faith. No person should be a judge in his own
cause and the tribunal, body or authority deciding the matter
should be unbiased. .....
16. It is unnecessary to burden the judgment by citing any more
decisions in support of the proposition that principles of natural
justice are flexible. They are not a judicial missile to be used for
striking down any and every administrative action or quasi-
judicial decision on the ground of an infraction, howsoever
inconsequential. A person alleging infraction of the principles of
natural justice may not prove beyond reason of doubt that
prejudice was caused to him by reason of the infraction. However
he must atleast allege prejudice or injustice. There must be atleast
a possibility (not probability) howsoever small, of injustice or
prejudice being caused to him. There must be an allegation of
prejudice or injustice and a possibility, howsoever remote, of an
injustice or prejudice. This may not be true when the allegation is
of a bias against the tribunal or authority deciding the matter but
that is on account of an oft quoted saying "Justice must not only
be done but must be seen to have been done."
3. Municipal Committee, Hoshiarpur V/s. Punjab State Eletricit
Board & Anr (2010)13 SCC 2166
33. There may be cases where on admitted and undisputed facts,
only one conclusion is possible. In such an eventuality, the
application of the principles of natural justice would be a futile
exercise and an empty formality. (Vide State of U.P. v. Om
Prakash Gupta [(1969) 3 SCC 775 : AIR 1970 SC 679] , S.L.
Kapoor v. Jagmohan [(1980) 4 SCC 379 : AIR 1981 SC 136] and
U.P. Junior Doctors' Action Committee v. Dr. B. Sheetal
Nandwani [(1990) 4 SCC 633 : AIR 1991 SC 909] .).....36. In
view of the above, in case there is a non-compliance with a
statutory requirement of law or the principles of natural justice
have been violated under some circumstances, non-compliance
with the aforesaid may itself be prejudicial to a party and in such
an eventuality it is not required that a party has to satisfy the
court that his cause has been prejudiced for non-compliance with
the statutory requirement or principles of natural justice.
4. A.S.Motors Pvt.Ltd. V/s. Union of India & Ors., 2013(1) SCC 114,
where this Court with approval quoted the following observations
of Sir Willam Wade (Administrative Law, 9th Edn. pp.468-471)
“… … it is not possible to lay down rigid rules as to when the
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principles of natural justice are to apply, nor as to their scope
and extent… There must also have been some real prejudice to
the complainant; there is no such thing as a merely technical
infringement of natural justice. The requirements of natural
justice must depend on the facts and circumstances of the case,
the nature of the inquiry, the rules under which the tribunal is
acting, the subject-matter to be dealt with and so forth.”
5. Dharampal Satyapal Limited V/s. Deputy commissioner of General
Excise, Gauhati and Other, (2015)8 Supreme Court Cases 519, 39.
We are not concerned with these aspects in the present case as the
issue relates to giving of notice before taking action. While
emphasising that the principles of natural justice cannot be
applied in straitjacket formula, the aforesaid instances are given.
We have highlighted the jurisprudential basis of adhering to the
principles of natural justice which are grounded on the doctrine
of procedural fairness, accuracy of outcome leading to general
social goals, etc. Nevertheless, there may be situations wherein
for some reason—perhaps because the evidence against the
individual is thought to be utterly compelling—it is felt that a fair
hearing “would make no difference”—meaning that a hearing
would not change the ultimate conclusion reached by the
decision-maker—then no legal duty to supply a hearing arises.
Such an approach was endorsed by Lord Wilberforce in Malloch
v. Aberdeen Corpn. [(1971) 1 WLR 1578 : (1971) 2 All ER 1278
(HL)] , who said that : (WLR p. 1595 : All ER p. 1294)“… A
breach of procedure … cannot give [rise to] a remedy in the
courts, unless behind it there is something of substance which has
been lost by the failure. The court does not act in vain.”....Relying
on these comments, Brandon L.J. opined in Cinnamond v. British
Airports Authority [(1980) 1 WLR 582 : (1980) 2 All ER 368
(CA)] that : (WLR p. 593 : All ER p. 377)“… no one can
complain of not being given an opportunity to make
representations if such an opportunity would have availed him
nothing.” In such situations, fair procedures appear to serve no
purpose since the “right” result can be secured without
according such treatment to the individual. .....40. In this behalf,
we need to notice one other exception which has been carved out
to the aforesaid principle by the courts. Even if it is found by the
court that there is a violation of principles of natural justice, the
courts have held that it may not be necessary to strike down the
action and refer the matter back to the authorities to take fresh
decision after complying with the procedural requirement in those
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cases where non-grant of hearing has not caused any prejudice to
the person against whom the action is taken. Therefore, every
violation of a facet of natural justice may not lead to the
conclusion that the order passed is always null and void. The
validity of the order has to be decided on the touchstone of
“prejudice”. The ultimate test is always the same viz. the test of
prejudice or the test of fair hearing.
6. Ajit and Others V/s. General Manager, BEST underaking of the
Municipal Corporation of Gr.Bombay and Others, AIR 1985
Bombay 362,
9-10. It is an admitted position that the premises were allotted to
respondent 3 as an incident of his employment and by virtue of
the agreement entered into at the time of the allotment,
respondent 3 was required to vacate the tenement on retirement.
He was compulsorily retired on 18th February 1983. The
authority under which he was allotted to occupy the premises thus
stood duly determined and his continuing in occupation of the
allotted premises became unauthorised within the meaning of cl
(d) of, S. 105A from the date of his compulsory retirement.
Respondent 3 thus became liable to be evicted under cl. (b) of
sub-sec. (1) of S. 105B of the B.M.C. Act. It is an admitted
position that before the order under sub-sec. (1) was passed
against respondent 3, he was duly served with a notice
contemplated by sub-sec. (2) of S. 105B.
13. An analysis of these definitions will make it clear that
occupation of premises contemplates possession, either actual or
constructive or control over, or enjoyment of the premise's in
pursuance of a right to possess or to have control or of
enjoyment, real or purported. Mere residence along with the
person who has or had a right to possession of the premises, as a
member of his family or with his permission does not amount to
possession and much less occupation. A member of allottee's
family who resides in the premises along with the allottee cannot
be said to be in possession or occupation of the premises in his or
her own right. The possession and occupation is that of the
allottee and not of the members of his family. It is not necessary
that the right to possess or control or enjoy premises should be
considered by, or exercisable against the true owner. The right
might be created by or exercisable against a person in
unauthorised occupation of the premises or whose occupation has
become unauthorised. A person who claims to be occupation must
be in occupation in exercise of a right and on his own behalf. A
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member the family residing as such with a person who is in
unauthorised occupation or whose occupation has become
unauthorised has no right to be in occupation either against the
said person or against the true owner. Such person cannot be said
to be in occupation of the premises.
10. At the outset, although the said arguments looks attractive,there
is basic fallacy , even before this Court all the 350 appeals were heard at
one go , common points were advanced in all the appeals. No separate
grounds were made out in the other appeals. Thus, if all the appeals are
considered together and disposed of together, I do not find that there is
any variance or violation of principles of natural justice.
11. The aspect of jointness of hearing and speedy hearing are held to
be not violative of ‘fairness’ as held in the case of Bharati Bhosale as
“Fairness is thus a prime test for proper and good administration. It has
no set form or procedure. It depends upon the facts of each case. Fairness
does not necessarily require a plurality of hearings or representations and
counter representations. It cannot have too much elaboration of procedure
since wheels of administration must move quickly."
12. The aspect of prejudice of natural justice is seen to be seen as on
case to case basis and not a rule basis.
13. It is necessary also to consider that the contentions or defence
raised of all the employees or all the appellants is the same in all the
matters. The letters written and the documents relied upon are also
same in all the matters. The society on behalf of the appellants as
members preferred one writ petition claiming similar contentions. Thus,
it would be an irony to say that each and every matter should be
decided separately just for because the appellants are separate. Merely
because the appeals and proceedings are decided by a similar order will
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not imply that the proceedings are vitiated. No such contention that
they were to given separate hearing on grounds or separate opportunity
of hearing should be given in their case was raised before the competent
authority. No such application or contentions is seen to be preferred. In
fact, it is seen that the proceedings were held in commonness by the
concerned parties and common documents as well as common
contentions and same evidence was led in all the matters. Only
difference was name of employee/date of retirement/or death of
employee as the case may be and quarter description. If we consider
this aspect, one has to consider whether there is any violation of
principles of natural justice.
14. Principles of natural justice contemplates a fair hearing to the
parties involved. If the issues involved in all the proceedings are same
and same grounds and contentions are taken up and considered by the
Enquiry Officer, only because each one was not brought forth separately
and differently will not imply violation of principles of natural justice.
As regards the absence of filing of documents, it is apparent that it was
for the appellants to call upon the respondents any document if they so
felt it necessary.
15. Much was harped upon the order of the Hon'ble High Court in
Writ Petition No.6989 of 2021 and other allied Writ Petitions wherein
in case of 16 cases, the Hon'ble High Court has held that the matters
are required to be remanded back. It is necessary to point out that in
the said case, the notices that was issued to the respondents therein i.e.
occupants was a very short period of notices. The Corporation was
given longer time. There was three days’ time was given to the
respondents to the show cause notice.
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16. On perusal of the present proceedings, the Enquiry Proceedings
were initiated in 2017. The statements of the applicant were recorded
on December 2017 and thereafter the order is passed in January 2018.
Thus, at no point of time that is it shown that there was any prevention
for not giving any opportunity to any party to represent or participate in
the proceedings or non consideration of any documents or refusal of
documents by the Competent Authority. In absence of such instances
specifically been shown as in the cited case, the violation of principles of
natural justice will not apply. In such circumstances, I consider that the
principles of violation of natural justice is not violated.
17. Hearing has been given. It could be that one of the matters has
been taken up as the lead matter and other matters are decided
accordingly. Unless prejudice is shown because of said issues involved,
one cannot consider that there is violation of principles of natural
justice by using the same procedure. Hence, I answer the said point
accordingly.
As to Point No.2:
18. Much was harped upon the aspect with regard to the proof of
unauthorized occupation and capacity of occupation. Much reliance was
also placed on on the judgment of the Hon'ble High Court in the Case of
Writ Petition No.5983/2022 dated 19.07.2022. It needs to be pointed
out that the above judgment relates basically to the aspect of pending
proceedings and not concluded proceedings. Secondly, it would be
difficult to directly imply that the grounds raised in those proceedings
and the defences raised in the present proceedings are same and hence
requires consideration. Thus, what has to one consider is the aspect of
occupation.
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19. It is part of record that there is leave and license executed by the
original employee that he will vacate the premises on his retirement or
that the premises will be vacated when his services stands determined.
In fact , the said statements are made and is basis of claim that they are
entitled for ownership basis premises through society. It is an admitted
fact that none of the original employees are in service right now. (Some
of the appellants could be in service, but in their own capacity and not
as original employees who had executed the leave and license
agreement)
20. It is also not in dispute that the quarters were allotted as staff
quarters. On consideration of the judgment passed in the Writ Petition,
it is apparent that the Society on behlaf of appellant as members had
preferred the Writ Petition. A lame attempt is made that the Writ
Petition is filed by the Society and the present proceedings are against
an individual. There is basic fallacy in this argument so much so that
the socalled transfer was to be effected only in favour of Society and
not individual. It is also part of record that the Society represented the
members I.e appellants . Thus, in view of these facts and circumstances,
it would not lie in the mouth of the appellants that they were not
parties before the Hon’ble High Court in the earlier round of
proceedings.
21. I have already considered the said judgment in my another round
of appeals. There can be two aspects while considering these earlier
judgments one is by view of the binding nature being between the
parties and, secondly by considering it also as precedent in the said set
of facts.
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22. I am reproducing the relevant findings in the Earlier Writ petition
of More Eknath (WRIT PETITION NO. 957 OF 2013 )
“Eventually, everything has to be placed before the General Body
of the Municipal Corporation. The General Body has yet not
passed any resolution conferring any right. Therefore, the policy
decision not to grant the conversion nor to permit retention of
the quarters on the above basis binds the Municipal
Corporation.
……. The Municipal Commissioner, thereafter, disclosed his
intention to grant the tenements at Parksite (Vikhroli),
Barvenagar (Ghatkopar), Mithanagar (Goregaon) and Deonar
on ownership basis. That is how the Municipal Corporation
passed Resolution No. 343 dated 1st September, 1989.
…… As required, an offer was submitted by the petitioners. The
petitioners complied with the requisitions and other terms in the
letters of the Municipal Corporation. It is in these circumstances
that the petitioners submit that they were hopeful of the benefits
being granted. They were also hoping that till the outcome of
the proceedings pending in this court, no coercive measures
would be initiated. The petitioners also relied upon certain
correspondence with their architect.
………... We must clarify at once that this is not a case of those
persons who are in occupation of municipal properties and
premises because they are displaced by a public project and
therefore, styled as project affected persons. They are not the dis
housed occupants of municipal premises because such premises
have become unfit for human inhabitation by passage of time.
These are exmunicipal servicemen or employees, who have
retired from municipal services. During their tenure, they were
allowed to occupy the municipal premises on account of the
specific orders of allotment. The terms and conditions of this
allotment are clear. Even if the allotment of municipal premises
in favour of the employees is on leave and licence basis or in lieu
of the Housing Rent Allowance, still, the nature of occupancy
remains the same. This occupancy does not create any right,
title or interest in the municipal property, which is a public
property
…….Therefore, the recommendation of the Municipal
Commissioner was placed before the Municipal Corporation's
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General Body and that General Body resolved that these
proposals/recommendations of the Municipal Commissioner can
be temporarily approved provided the cooperative housing
society of such occupants presents a concrete proposal for
consideration of the Commissioner and thereafter the
Commissioner forwards it for approval of the Municipal
Corporation. Thus, this is a proposal which has to be initiated
from the Municipal Commissioner. We do not see how this
resolution can be termed as a final decision of the Corporation
to grant permanent occupancy rights. These are not final
recommendations or accepted proposals so as to convert the
individual occupancy into either ownership or permanent
tenancy basis. This is at best a request emanating from all these
occupants, on which the Municipal Commissioner endorses his
remarks and observations and then forwards them to the House
…... Once they understand this as only a request made by them
to the Municipal Corporation for consideration of their cases
sympathetically, then, all the more we do not see how moved by
their plight alone, the municipal properties can be handed over
to them permanently. Further, if this court were to allow such a
request and issue the writ as prayed, that would be a mockery of
the rule of law. This court's orders and writ cannot be contrary
to the MMC Act. The municipal property can be disposed off
only in accordance with section 92 of the MMC Act. The
petitioners ought to be aware of this settled legal position and as
annunciated in the MMC Act. No public property can be
disposed off even by a public body except as authorised by law
…….. What we have noted from these circulars is that when
such authorities are empowered to take a harsh decision, then,
all the more allowing the petitioners to retain the tenements,
despite ceasing to be in service and retiring decades back would,
as rightly contended before us by the Corporation, be putting a
premium on their wrongful and illegal acts. No premium
attaches to such patent illegality. We cannot, in the garb of any
sympathetic considerations, allow retention of the municipal
staff quarters
…….The Municipal Corporation approved this recommendation
of the Municipal Commissioner on 1st September, 1989, but
mentioning clearly that these are special factors and
circumstances. It had not passed a firm resolution nor has taken
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any final and binding decision. It, as noted above, only directed
that the Municipal Commissioner should forward the necessary
proposal specifying the terms and conditions for allotment for
due consideration and specific approval of the Municipal
Corporation. There are further representations and
correspondence, which would indicate as to how this whole
proposal was not found to be feasible.
…...They have not obtained any right independent of their
status as employees of the Municipal Corporation and rendering
municipal services, which would enable them to retain these
premises. If there is no specific order converting their occupancy
into permanent tenancy or otherwise on ownership basis, then,
they must hand over these premises, else, they must face the
deduction “
23. This judgment of the Hon’ble High Court that there was no
concluded contract. It is also the judgment of the Hon’ble High Court
that the quarters were staff quarters. It is also the judgment of the
Hon’ble High Court that these employees have no right in the said
premises. Thus, if that is so ,none of the contentions raised in the
defence survives and same would be hit by the findings in said Writ
Petitions .
24. Even if one considers that the proceedings are between the
Society and the Corporation, law of precedent implies that the said
judgment would apply to the present facts with all force. The said
judgment examines all the documents and circumstances.
25. It is certainly true and it has been observed in the said earlier
judgment also that certain representations of consideration of proposal
of transfer of the ownership rights would be given to the Society, would
be considered. It is also part of record and all the correspondence relied
herein also which shows that it was merely a proposal and all the terms
and conditions were to be agreed and decided upon. The proposal was
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never accepted even in principle. It was always subject to its feasibility
and implementation. Even the members, area, occupation rights, place
were to be ascertained. By passage of time, it is seen that the project
was not feasible for the Corporation to consider such proposal. In such
circumstances, it is very clear that the discretion of the Corporation has
been upheld by the Hon’ble High Court of Bombay and same has been
confirmed by the Hon’ble Supreme Court of India.
26. In such circumstances, it would not lie to hold in this case , that
there was an agreement and possession was in pursuance of that
agreement. There is difference between a concession and an agreement.
A concession could be to be in occupation till that issue of proposal is
decided. The agreement is that after or in pursuance of the agreement
the possession is handed over or possession is taken. There is no
termination or determination of earlier occupation of premises and
coming into premises in new capacity. These aspects are conspicuously
absent to consider the protection of possession by virtue of any such
alleged agreement.
27. Apparently, by virtue of the above earlier proceedings, it is held
that there is no agreement. Thus, there can be no right flowing under
such consideration. In such circumstances, even if one considers that
“yes” there was some proposals passing forth and compliance by the
society members, that was never concluded proposal also. This is
apparent from number of documents filed on record by the appellant
himself. Even the various documents show that what was only the mere
discussion on the various proposals of transfer of ownership. In such
circumstances, it does not lie that the agreement existed wherein it was
agreed that the ownership tenement would be given to this person.
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28. However unfortunate it may seem to be, the Enquiry Officer had
very limited scope for consideration as to whether the appellant had a
right or not to occupy the premises. In view of the leave and license
agreement and the judgment of the Hon’ble High Court, it is a settled
fact and same which has attained the finality that there was no such
right existing or subsisting in favour of the appellant and considering
the same, the learned Enquiry Officer rightly held that only point for
consideration is whether the appellants are unauthorized occupants.
The action is also Thus, the issue is answer accordingly by the Ld
Competant authority and rightly so.
As to Point No.3:
29. Various points for consideration were raised and it was tried to be
pointed out various issues will have to be considered. As regards in this
case, it is admitted that these are the staff quarters and there is direct
clause in the leave and license agreement that the premises are to be
handed over on retirement. It is also necessary to point out that the
Enquiry Proceedings cannot be said to be a sue. It is also part of record
that various proceedings were filed and various process were under
progress before initiation of the proceedings. In the earlier round the
Hon’ble High Court permitted initiation of proceedings and in that case
also the Hon’ble High Court granted time to vacate the appellants and
only failing which proceedings U/s.104 were permissible. Considering
these circumstances, it is my view that the learned Competent Authority
has considered all the issues in correct perspective. In such
circumstances, I hold that the learned Competent Authority has
considered the facts in correct perspective and I pass the following
order.
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O R D E R
1. Misc.Appeal is dismissed.
2. Time is granted to the appellant/s to vacate the premises till
31/03/2023 subject to appellant/s filing an undertaking before
this Court within 4 weeks from today that the appellant/s is/are
in physical occupation of the premises and that appellant/s will
not create any third party interest in the said property and further
appellant/s will honour the order of the learned Enquiry Officer
on its attaining finality.
3. If the above undertaking is/are not filed within the stipulated
period, the execution can be proceeded with.
4. Record and proceedings be returned to the Respondent
No.1/BMC.
09/02/2023 (A.SUBRAMANIAM)
PRINCIPAL JUDGE,
CITY CIVIL COURT, MUMBAI.
(JO CODE MH01711)
Dictated on : 09/02/2023
Transcribed on : 10/02/2023
Signed by HHJ on : 21/02/2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
21.02.2023 5.53 pm B.R.HATEKAR (S.G.)
Name of the Judge HH THE PRINCIPAL JUDGE
SHRI A.SUBRAMANIAM (CR No.19)
Date of Pronouncement of Judgment/Order. 09.02.2023
Judgment/order signed by P.O on 20.02.2023
Judgment/order uploaded on 21.02.2023
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