Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Misc.app.177.18
Received on : 22/06/2018
Registered on : 03/07/2018
Decided on : 25/06/2019
Duration : Y M D
01 00 23
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Misc. Appeal No.177 of 2018
Sawji Hira Singal
aged 62 years, Occ.:Retired,
residing at room no.61A,
New Municipal Chawl No.6,
Worli Naka, Mumbai18 ..Appellant
V/s.
Municipal Corporation of Gr.Mumbai
Mahapalika Building,
Mahapalika Marg,
Mumbai1 ..Respondent
Coram : H.H.THE PRINCIPAL JUDGE
V.G. BISHT
Dated : 25th June,2019
(C.R.No.19)
Advocate Mr.Haresh Shivdasani for appellant.
Advocate Mr.Vikram Walawalkar for respondent.
O R A L J U D G M E N T
Being aggrieved by the order of eviction passed by the
Competent Authority under Mumbai Municipal Corporation Act ('the Act'
for short) on 15th June,2018 in respect of premises comprising room
no.61A in Block no.6 at Hains Road, Municipal Chawl, Mumbai ('schedule
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2 Misc.app.177.18
premises' for short), the appellant has preferred the present appeal.
2 One Dahyabhai Rama Singhal, grandfather of the appellant
and father of Laxman Dahyabhai Singhal was the tenant of room in block
'E', Prabhadevi Municipal Chawls, Mumbai much prior to the year 1940.
Laxman Dahyabhai Singhal was the son of said Dahyabhai Rama Singhal
and after the death of Dahyabhai Rama Singhal, the said room no.3 came
to be transferred to the name of Laxman Dahyabhai Singhal who was then
a school teacher in the primary education department of the respondent.
The appellant and his parents also used to reside in the said room.
3 Appellant contends that the head Supervisor of the respondent
under directions of the Municipal Commissioner of the respondent by
notice dated 3rd August,1954 called upon the said Laxman Dahyabhai
Singhal to vacate the said room no.3 and in exchange allotted schedule
premises. Appellant has been living in the said room since then.
4 According to appellant, he was employed by the respondent in
SWM Department, 'S' Ward as a halalkhor and was appointed on 15th
September,1977.
5 On 3rd January,1981 Laxman Dahyabhai Singhal died
unmarried. He and his family members used to lookafter him as member
of his family. He is the heir and legal representative of Laxman Dahyabhai
Singhal and was living with him in the schedule premises at the time of his
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3 Misc.app.177.18
death. He requested the respondent to transfer the tenancy of the schedule
premises in his name. However, they refused wrongfully and illegally.
6 The appellant alleges that soon after the death of Laxman
Dahyabhai Singhal, the respondent instituted enquiry proceedings against
him and his wife and on 16th April,1982 passed an order directing them to
vacate the schedule premises. He approached the City Civil Court and the
court vide order dated 6th November,1982 set aside the said order.
Thereafter, no inquiry proceeding was conducted against him. On 31st
July,2013 he retired from the services of the respondent. The respondent
withheld the Provident Fund and other retirement dues on the ground that
he was in unauthorised occupation of the schedule premises. He
approached the Labour Court and Labour Court directed the respondent to
release the amount. Respondent then approached the Hon'ble High Court.
The Hon'ble High Court passed an order directing the respondent to pay
the amount as directed by the Labour Court and also gave liberty to the
respondent to conduct inquiry under Section 105B of the Act by keeping all
the contentions of the parties open. Accordingly, the inquiry was instituted
against him and the impugned order came to be passed. Hence, this
appeal.
7 Mr.Haresh Shivdasani, learned counsel for appellant,
submitted that learned Enquiry Officer failed to take into consideration
that at the time of death of Laxman Dahyabhai Singhal, the appellant and
his family members were very much residing with the latter and has also
various rent receipts filed on record showing the name of appellant
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4 Misc.app.177.18
Laxman Dahyabhai Singhal. Although the respondent putforth theory of
leave and license agreement, but the learned Enquiry Officer wrongly put
burden upon the appellant of having failed to produce leave and license
agreement between his uncle and respondent. The learned counsel giving
reference to Section 105A of the Act, submitted that since the appellant
Laxman Dahyabhai Singhal was tenant and after his death the appellant
continued, the appellant cannot be termed as unauthorised occupant
within the meaning of Section 105A(d) of the Act. For all these reasons,
the impugned order needs to be set aside, argued learned counsel.
8 Mr.Vikaram Walawalkar, learned counsel for respondent, on
the other hand, strenuously submitted that the appellant has failed to
establish his relationship with original tenant viz. Laxman Dahyabhai
Singhal. Since the schedule premises is not covered under the provisions
of Maharashtra Rent Control Act, there is no question of claiming the
schedule premises by virtue of such tenancy. After the death of Laxman
Dahyabhai Singhal his tenancy came to an end. The occupation of the
appellant amounted to unauthorized occupation and nothing else. The
learned counsel also placed reliance in Ajit Baburao Sawant and others
V/s. General Manager, BEST undertaking of the Municipal Corporation
of Gr.Bombay and others, 1985 Mh.L.J.527.
9 Following points, therefore, arise for my consideration and my
findings thereon with reasons are as under:
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5 Misc.app.177.18
POINTS FINDINGS
1 Whether the impugned order
dated 15th June,2018 passed
by the Enquiry Officer is legal, ..In the affirmative
just and proper?
2 What order? ..As per final order
R E A S O N S
10 From the record, more particularly from the evidence (Exh.F)
of the officer of respondent, it is clear that the schedule premises was
allotted to Laxman Dahyabhai Singhal on leave and license basis by virtue
of his employment with respondent and as per conditions of leave and
license agreement in respect of schedule premises, the license was to
terminate on his leaving or retiring from Municipal service or on his being
discharged or dismissed from Municipal service. There is no dispute on
this count from the other side except to the extent that Laxman Dahyabhai
Singhal was not a licensee but a tenant of the schedule premises. There is
also no dispute that said Laxman Dahyabhai Singhal after his retirement
from the Municipal service died on 3rd January,1981.
11 Although, the respondent herein claims that Laxman
Dahyabhai Singhal was a licensee of the schedule premises but the rent
receipts produced on record by the appellant, which is also not disputed by
the respondent, show otherwise. These rent receipts unequivocally show
the character of Laxman Dahyabhai Singhal as a tenant of the schedule
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6 Misc.app.177.18
premises. The rent receipts also show the rent paid by the said Laxman
Dahyabhai Singhal and this fact is also admitted by the respondent's
witness in his crossexamination. Therefore, there should not be any
quarrel about the status enjoyed by said Laxman Dahyabhai Singhal
during his lifetime as a tenant of the schedule premises.
12 The appellant canvassed before Enquiry Officer that he and his
family members were residing with Laxman Dahyabhai Singhal during his
lifetime and the fact that latter was his uncle. After the death of Laxman
Dahyabhai Singhal, he continued to stay in the schedule premises and in
such circumstances it was incumbent on the part of Enquiry Officer to
declare him a regular tenant of the schedule premises. Thus, the very basis
of claim of the appellant is relationship shared by him with Laxman
Dahyabhai Singhal in the capacity of the latter's nephew, the long
cohabitation and in such circumstances the tenancy of the schedule
premises ought to have been transferred in his name, he being heir and
legal representative of Laxman Dahyabhai Singhal.
13 Here it is relevant to note that the appellant was also in service
of respondent as a halalkhor are retired from service on 31st July,2013.
During the course of crossexamination, he was shown the extract of his
service record from municipal record and he admitted that his earlier name
was Amra Ganda Jalla. If he was the real nephew of Laxman Dahyabhai
Singhal there was no reason for change in the surname in the service
record during the course of his employment with respondent. There is no
explanation to that effect much less the satisfactory explanation. In the
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crossexamination, the appellant stated that except Exhs.6 to 9, he has no
documentary evidence to show that Laxman Dahyabhai Singhal was his
uncle.
14 Exh.6 is some writing written in Gujarati language on the
plain paper. Exh.7 is a letter written by one Laxmanbhai G. Gohil,
Secretary of Rohidas Samaj Seva Sangh (Gujarati) to Municipal
Commissioner to issue certificate in favour of Savji Hira Singhal. He
further assured Municipal Commissioner that Savji Hira Singhal is son of
brother of Laxman Dahyabhai Singhal. Exh.8 is a true copy of caste
certificate issued by concerned officer Bhavnagar, Gujarat. Exh.9 is the
affidavit showing the genealogy of Daya Rama Singhal.
15 The above noted documents strictly and legally speaking do
not further the case of appellant that he was real nephew of Laxman
Dahyabhai Singhal. I have already pointed out from the original service
record of the appellant that two years prior to the death of Laxman
Dahyabhai Singhal, the appellant changed his original name from Amra
Ganda Jalla to Savji Hira Singhal. Definitely, there is something amiss.
16 Assuming for the sake of argument that appellant is the
nephew of Laxman Dahyabhai Singhal, the question that arises is whether
by virtue of relationship in absence of any permission from the respondent,
the appellant can be clothed with the character of tenant legally accepted
by the respondent.
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17 In Ajit Baburao Sawant and others V/s. General Manager,
BEST undertaking of the Municipal Corporation of Gr.Bombay and
others (Supra), the Hon'ble High Court at paragraphs 12 and 13 held as
under:
“12. The Bombay Municipal Corporation Act
does not define the word “occupation”, nor does the
Public Premises (Eviction of Unauthorised Occupants)
Act,1971, which contains provisions analogous to the
provisions contained in Chapter 5A of the Bombay
Municipal Corporation Act. Shri Vashi, therefore,
referred to the definitions given in Black's Dictionary
(5th Edition) of the terms, 'occupier', 'occupy',
'occupant', and 'occupation', 'occupier' is defined as an
'occupant', one who is in enjoyment of a thing; 'to
occupy' is defined to mean “to take or enter upon
possession, actual use, possession and cultivation.”
'Occupant' is defined as 'person in possession; person
having possessory rights who can control what go on
premises; and who has actual use, possession or
control of a thing'. 'Occupation' is defined to mean
'possession, control, tenure, use'. The act or process
by which real property is possessed and enjoyed.
Where a person exercises physical control over land.
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 premises in pursuance to a
right to possess or to have control or of enjoyment,
real or purported. Mere residence alongwith the
person who has or had a right to possession the
premises, as a member of his family or with his
permission does not amount to possession and much
less occupation. A number of allotee's family who
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resides in the premises along with the allotee 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 allotee 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 in
occupation must be in occupation in exercise of a
right and on his own behalf. A member of 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 a person cannot be said to be in occupation of
the premises.”
18 Having regard to the interpretation of the word 'occupant'
putforth by the Hon'ble High Court, it must be held that meaning of the
'occupant' is that the person should be in occupation in his own right and
not on behalf of someone else. In the instant case, even if it is that the
appellant was residing with Laxman Dahyabhai Singhal, he cannot be said
to be in possession or occupation of the schedule premises in his own right.
He even admitted in his crossexamination that the Corporation has not
given any permission to him to use and occupy the schedule premises.
Moreover, as per terms and conditions, licenseeship or for that matter
tenancy of Laxman Dahyabhai Singhal was to be terminated after his
retirement from the Municipal service or being discharged or dismissed
from Municipal service. Not only Laxman Dahyabhai Singhal had retired
from the Municipal service but he died also on 3rd January,1981 without
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10 Misc.app.177.18
handing over possession of the schedule premises to the respondent. The
appellant has also admitted in his crossexamination that the notice was
served upon him to vacate the inquiry premises in the year 2015. This
being so, the respondent was justified not only in serving the quit notice
but also lawfully carried out revised inquiry leading to the passing of
impugned order.
19 In view of above, I hold that the revised enquiry no.GS/6 of
2017 (old enquiry no,GS/544 of 1981) carried by Enquiry officer and
eviction order passed thereon is clearly in consonance with the provisions
of the Act. The impugned order is legal, correct and proper in the facts
and circumstances of the case. Hence, the point is answered in the
affirmative.
20 For the aforesaid reasons, I pass the following order:
O R D E R
Misc.Appeal No.177/18 stands dismissed.
R & P be sent back.
25/06/2019 (V. G. BISHT)
Principal Judge,
Gr.Bombay.
Dictated on : 25/06/2019
Transcribed on : 25/06/2019
Signed by HHJ on :
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11 Misc.app.177.18
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographer: Mrs.Aruna S. Jayade
Upload date and time: 27/06/2019 (12.30 p.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Shri V.G. BISHT(C.R.No.19)
Date of Pronouncement of Order 25th June,2019
Order signed by P.O. on 27th June,2019
Order uploaded on 27th June,2019
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