Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Misc. Appeal 167/19
Received on : 06/11/2019
Registered on : 07/11/2019
Decided on : 25/02/2020
Duration : Y M D
00 03 20
CNR NO. MHCC01-011264-2019
IN THE BOMBAY CITY CIVIL COURT AT GR.BOMBAY
Misc.Appeal No.167 of 2019
Mrs. Kiran Kumari Trehan
w/o Shri Sudarshan Kumar Trehan
Ex-Indian Navy, Adult, Indian Inhabitant,
Age 81 years, residing at Maker Tower,
H-84, Near G.D. Somani school,
Cuffe Parade, Colaba
Mumbai- 400 005. ..Appellant
V/s.
1. Union of India (Through Secretary)
Ministry of Defence, New Delhi – 110 011,
being served through office of the
Government Pleader,
Mumbai- 400 020
2. The Chief of the Naval Staff,
Ministry of Defence,(Navy),
integrated Headquarters,
Sena Bhavan, New Delhi – 110 011.
3. The Flag officer Commanding,
Head Quarters Western Naval Command,
Shahid Bhagat Singh Road,
Mumbai- 400 023.
4. The Commanding Officer,
Office of Commodore Navel Barracks/
Estate Officer INS Angre Shahid Bhagat
Singh Road, Mumbai- 400 023,
All Respondent Nos. 1 to 4
being served through office of the
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Government Pleader,
Mumbai- 400 020 ..Respondents
Coram : H.H.THE PRINCIPAL JUDGE
M.W. CHANDWANI
Dated : 25th February,2020
(C.R.No.19)
Advocate Tiwari for appellant.
Advocate Redij for respondents.
O R A L J U D G M E N T
Dissatisfied with the order dated 28th October, 2019 by the
Estate Officer, under Section 5 of The Public Premises Act,1971
(hereinafter referred as 'the Act' for short), the appellant has filed this
appeal under Section 9 of the Act.
2 Brief facts which can be gathered from this record of the
Estate Officer that the appellant by virtue of a contract agreement dated
14.05.1973 was permitted to run a Hindustan Petroleum Gas Agency at
Shop No. T 19/19 for Regimental Shop in Old Navy Nagar, Colaba,
Mumbai- 05 (hereinafter referred as decide shop). From 15.05.1973 to
31.12.1973 the said permission was continued from time to time and lastly
a leave and license agreement was continued for ending 30.04.2019. Since
the respondents planned to construct the integrated Multi-Utility Complex.
Therefore, it was requested to the appellant to vacate the premises after
expiry of license period on 30.04.2019. Since the appellant had failed to
vacate the premises, notice under section 4 of the Act came to be issued by
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the Estate Officer.
3 The appellant replied to the notice contending that she is 81
years old woman and Ex- serviceman and running the said gas agency
continuously for last 46 years. She further stated that as per Defence
shopping complexes (Maintenance and Administration) Rule 2006, the
Chief at Naval Staff is the competent authority to resolve the dispute, if any
pertaining to regimental shop by the Estate Officer. Therefore, the Estate
Officer has no jurisdiction and lastly she submitted that she has explosive
license from appropriate authority which goes to expire in the month of
September, 2021. She sought to vacate the premises till September, 2021.
Proceeding before the Estate Officer culminated in impugned order of
eviction. Being aggrieved to decide the order the present application came
to be filed.
4 Having heard learned advocate for the appellant and advocate
for the respondents. After perusing the impugned order and record and
proceedings of the case following points arise for my determination and I
have given my findings against each of them for the reasons mentioned
hereinafter.
POINTS FINDINGS
1 Whether the case is made out for
remand of the Estate Officer for
deciding afresh ?
..In the Negative
2 Whether the impugned order of the
Estate Officer is just, proper and legal? ..In the Negative
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3 What order? ..As per final order
R E A S O N S
5 At the outset it is pertinent to mention here that only
argument canvassed by the learned advocate for the appellant in this
appeal that the Estate Officer has not considered the observations made in
the order dated 03.10.2019 of the Hon’ble High Court in Writ Petition No.
10038/2019. Learned advocate for the appellant submitted that against
the issuance of notice under Section 4 of the Act by the Estate Officer, the
appellant had preferred the Writ Petition No. 10038/2019. In the said writ
petition the appellant had contended that the shop is regimental shop and
not commercial shop to which Defence Shopping complexes maintaining
and administrating Rules applies and the original agreement of 1973 has
to be looked into and not the license on June,2018. It is contended by
learned advocate for the appellant that while disposing of the said writ
petition the Hon’ble High Court has observed that these defenses should be
considered by the Estate Officer.
6 Learned advocate for the appellant vehemently submitted that
the Estate Officer has not followed the direction given the said writ
petition and has not considered the defenses raised by the appellant in the
said writ petition vis-a-vis replied filed by her. The Estate Officer has not
followed the direction of the Hon’ble High Court in the above said order.
According to him, the matter is required to be re-heard by the Estate
Officer to consider these defenses agitation by the appellant. According to
him, matter is required to be remained back. The Estate Officer for
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consideration of this fact by allowing the appeal and set-aside the
impugned order of eviction.
7 Per contra, learned advocate for the respondents vehemently
submitted that all the defenses raised in the writ petition as well as reply
filed by the appellant has duly considered by the Estate Officer in its order.
According to him, during the hearing before the Estate Officer the
appellant only pleaded for extension of time till September, 2021. He
further vehemently submitted that her request for extension was sent to
higher authority of respondent, which was not acceded to. According to
him, the order of the Estate Officer is well reason and does not require
interference. He submitted that the entire building is vacated and the
progress of the work is hindered just because the appellant has not vacated
the premises. According to him, the appeal is devoid of merit and
therefore, required to be dismissed.
8 It is matter of record that by way of writ petition the appellant
challenged the notice by the estate officer under Section 4 of the Act. The
Hon’ble High Court did not entertain writ petition and disposed of the
same by observing that the defence which is being put up in the writ
petition, would be appropriately considered by the Estate Officer as and
when action in pursuance of the Public Premises Act is initiated against the
Petitioner.
9 This brings me to the order dated 03.10.2019 in Writ Petition
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No. 10038/2019, wherein para- 4 of the judgment the Hon’ble High Court
had made some observation which is re-produced here as under :
“4. We are at the stage of a notice issued by the competent
authority of Naval administration under the Public Premises Act.
The petitioner’s defence that it has been occupying the premises as a
regimental shop and not as a commercial shop or that the
arrangement between the parties is reflected in the original
agreement of 1973 and not the licence of June 2018, are all the
matters of defence. These would be appropriately considered by
the Estate Officer as and when action in pursuance of the Public
Premises Act is initiated against the Petitioner. There is no way, at
this notice stage, the Respondents can be restrained from
taking action against the Petitioner on the basis of the contentions
urged by the Petitioner in the present petition. These, as I have
noted above, would appropriately form part of his defence before
the Estate Officer.”
10 The appellant’s contention in the writ petition was that the
premises occupying by him is a regimental shop and not the commercial
shop, as well as arrangement between the parties is reflected in the
original agreement of 1973 and not being the licence agreement. This
takes me to the reply of appellant to notice under Section 4 of the Act.
Perusal of the reply shows that the appellant taken contrary defence to
what is taken in writ petition. In para 5 of her reply she submitted that in
fact as per Defence shopping Complexes (Maintenance and
Administration) Rule, 2006 (hereinafter referred as Rule of 2006), it is the
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Ministry of Defence, in consultation with the Chief of the Naval Staff, who
are the Competent Authority is in pursuance to regimental shop. Thus, in
the proceeding before the Estate Officer, she claimed that the Rule of 2006
will apply. This has been considered by the Estate Officer in para 12 of the
impugned order. The Estate Officer held that the Rule of 2006 will not be
applicable to regimental shops as these shops are kept outside the purview
of the Rules of 2006. It will be appropriate to mention the relevant Rule
1(i) of the Rule 2006, which is read as under:
Rule 1(i) These Rules shall not apply to regimental shops which are
created exclusively for military personnel and their families.
11 From above said rule it is cleared that the Rule of 2006 shall
not apply to the regimental shop allotted to the appellant. The Estate
Officer has considered the defence which the appellant raised in her reply
and rightly held that Rule of 2006 are not applicable to the premises and
the very stand had taken by the appellant in writ petition.
12 Coming to the second contention which was raised before the
High Court that the right arises to the appellant from the agreement of
1973, therefore, the terms of agreement leave and licence have no
application. It is submitted this aspect has not been considered by the
Estate Officer.
13 This takes me to reply of the appellant, notice under Section 4
of the Act, which she has submitted to Estate Officer after the disposed of
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writ petition. In reply, the appellant claimed that she is owner of the
regimental shop which is allocate to her since 1973 i.e. agreement of 1973.
Perused of the impugned order shows that Estate officer has dealt this
contention of the appellant in para 11 of the order and repelled the
contention of the appellant in reply that she is owner of the regimental
shop.
14 I have also gone through the agreement of year 1973,
whereby Commodore Naval Barracks granted permission to the appellant
to bring his goods under control of Navel Barracks. Rather the possession
of the shop was with Commodore Naval Barracks. The relevant convent in
the agreement of the 1973 is reproduced here :
“1. The Commodore Naval Barracks retains the possession of the
Shop No. T/19 and T/21 at Navy Nagar, Colaba, Bombay 400005
and does not grant the Contractor either lease or license or
tenancy rights in respect of the said shop under this agreement.”
15 Thus, by this agreement the possession of the shop was
retained by the commodore Naval Barracks and even the agreement of
1973 did not grant any right in favour of the appellant either lease or
license or tenancy in respect of said shop. It is evident from the agreement
of 1973 itself that it does not create any interest in the property in favour
of the appellant. It handily helped the appellant. The Estate Officer has
given finding that the appellant is not owner of the shop. Rather, leave and
licence agreement has been executed between the respondent and
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appellant, which was valid till 30.04.2019. This aspect has been dealt by
the Estate Officer para- 14 of the judgment. Therefore I do not find force
in the argument for the appellant that matter is required to be remanded
back.
16 So far as the argument by the learned advocate for the
appellant that Principle of Natural Justice has not been follow is
concerned, the appellant was called for hearing. Rather, it appears during
the hearing before the Estate Officer, the only submission that was made
for extension of time. Even reply filed by the appellant to the notice under
Section 4 was seeking only to extend the time till September, 2021, which
had turned bound by the respondents.
17 The order of the Estate Officer is well reason order. Rather, the
every para of the reply of the appellant has been dealt by the Estate Officer
in the impugned order. Therefore, no interference is required the order of
Estate Officer. Accordingly, appeal is fails. Hence, this order.
O R D E R
1. The appeal is dismissed.
2. Record and Proceeding be sent back to The Estate
Officer.
25/02/2020 (M.W. CHANDWANI)
Principal Judge,
Gr.Bombay.
Dictated on : 25.02.2020.
Transcribed on : 25.02.2020 and 26.02.2020
Signed by H.H.J. on : 05.03.2020.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER
Name of Stenographer: Mrs. Pushpa R. Vengurlekar
Upload date and time: 06/03/2020 at 12.20 p.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Shri M.W. CHANDWANI(C.R.No.19)
Date of Pronouncement of Order 25th February,2020
Order signed by P.O. on 5th March,2020
Order uploaded on 6th March,2020
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