M.S. Joshi And Ors. vs Municipal Corporation
2001 Latest Caselaw 418 Bom

JUDGMENT

D.Y. Chandrachud, J.

1. The learned Counsel appearing on behalf of the Petitioners has sought permission of the Court to delete Petitioner Nos. 7 to 11. Liberty as prayed for is granted.

2. The writ petition which forms the subject matter of these proceedings seeks to impugn an order passed almost 14 years ago on 31st August, 1987 by the Principal Judge of the City Civil Court, Bombay, in Misc. Appeal No. 63 of 1987 and six companion appeals under Section 105-B of the Bombay Municipal Corporation Act, 1888. The appellate proceedings before the learned Principal Judge arose out of orders passed by the Enquiry Officer appointed by the Municipal Corporation holding that the Petitioners were unauthorised occupants of the tenements which had been allotted to them in Shahu Nagar, Mahim, Mumbai, since upon their ceasing to be in the service of the Municipal Corporation, the original allottees were not entitled to continue in occupation. The Petitioners are heirs of the allottees. The Enquiry Officer came to the conclusion that the premises were allotted to the original allottees as service tenements and that their right to occupy the premises would necessarily come to an end upon their ceasing to be in the service of the Corporation. Copies of the letters of allotment were duly produced before the Enquiry Officer and Condition No. 1 of the letters of allotment clearly stipulated that the quarters are service quarters and shall have to be vacated after cessation of service in the Municipal Corporation. The Municipal Officer who produced the letters of allotment from the service record, was not cross-examined by or on behalf of the Petitioners, despite an opportunity having been granted to them to do so.

3. The learned Principal Judge while affirming the conclusion of the Enquiry Officer has upheld the finding that the tenements which were allotted to the Petitioners or their predecessors in interest were service tenements and that the Petitioners have no right, title or interest to remain in occupation. The Principal Judge has taken note of the fact that the principal witness who deposed before the Enquiry Officer was not even cross-examined on behalf of the Petitioners and the Petitioners did not avail of the opportunity to do so. The Petitioners then sought to rely upon the resolution of the Municipal Corporation dated 14th July, 1978 but, the Principal Judge has come to the conclusion that it was not open to the Petitioners to contend that their occupation was regularised since it was not applied to essential staff/service quarters.

4. In 1984, the Petitioners had filed L.C. Suit No. 3331 of 1984 before the City Civil Court, Bombay, claiming a declaration of tenancy. After the Enquiry Officer passed an order of eviction under Section 105-B of the Bombay Municipal Corporation Act, 1888, the plaint came to be amended so as to incorporate a challenge to the legality of the order passed by the Enquiry Officer. Thereafter, as already noted earlier, the appeals filed by the Petitioners under Section 105-F of the Act came to be dismissed by the learned Principal Judge, City Civil Court, Bombay. The suit instituted by the Petitioners before the City Civil Court was dismissed by an order dated 29th September, 2000. The Trial Court while dismissing the suit observed in para 31 of its order that the Plaintiffs before it had not come before the Court or deposed in their individual capacities, nor had they brought forth all the documents on the basis of which they sought relief. Besides this, the Trial Court was of the view that since the statutory appeals which had been filed by the Petitioners under Section 105-F of the Act had been dismissed, the remedy of the Petitioners was to adopt suitable proceedings against the order passed by the learned Principal Judge in those appeals. The learned Counsel for the contesting parties have informed the Court that against the order of the City Civil Court dated 29th September, 2000, a First Appeal was filed before this Court (First Appeal No. 29 of 2001). The order passed by the learned Single Judge of this Court, my learned brother Mr. Justice R.M. Lodha, records that after the First Appeal was argued for some time and in view of the observations made by the Trial Court, the Petitioners had craved leave to withdraw the First Appeal with liberty to challenge the order of the Enquiry Officer and the Principal Judge in a writ petition before this Court. The First Appeal was dismissed as withdrawn with liberty reserved to the Petitioners herein to challenge the order of the Enquiry Officer and the learned Principal Judge in appropriate proceedings. The Municipal Corporation was given liberty to raise all available objections in opposition to such proceedings which the Petitioners may adopt.

6. I have heard the learned Counsel for the parties. On the merits of the present case, it is abundantly clear that the learned Principal Judge has affirmed the finding of fact which was recorded by the Enquiry Officer that the quarters in occupation of the Petitioners were service tenements which were allotted to the original allottees in their capacity as employees of the Municipal Corporation. Copies of the letters of allotment were duly produced on the record of the Enquiry Officer. Each of the letters of allotment which have been signed by the original allottees in token of acceptance, records that the quarters were service quarters and would have to be vacated upon the allottees ceasing to be in the service of the Municipal Corporation. The claim that the Petitioners were tenants of the Corporation is without any basis or foundation. The learned Counsel for the Petitioners has fairly accepted the position that the alleged letter of allotment sought to be produced here and annexed at Exhibit A was not produced in the proceedings below or before the Enquiry Officer. In fact, Petitioner No. 1, M.S. Joshi during the course of cross-examination was asked about his signature on the copy of the letter of allotment produced by the Corporation. He declined to answer the question, stating that since a xerox copy of the letter of allotment was produced, he did not wish to state anything. He however, admitted that the receipt for Security Deposit produced by him was not a tenancy deposit receipt. Though it was faintly sought to be submitted that the Municipal Corporation had not deducted any amount from the salaries of the concerned allottees towards the monthly compensation, it has come on record in the cross-examination of Shri M.S. Joshi, one of the Petitioners in these proceedings that the Municipal Corporation had not paid him any House Rent Allowance. This was obviously because an employee to whom service quarters had been allotted was not entitled to the payment of any H.R.A.

6. Having regard to the circumstances of the present case, there is no infirmity in the order which has been passed by the learned Principal Judge. Besides, that the order was passed as far back as in 1987. The Petitioners are legal representatives of the original allottees to whom the premises came to be allotted as service tenements. Upon the original allottees ceasing to be in the service of the Municipal Corporation, the Petitioners have no right, title or interest and their occupation is clearly unauthorised. The Petitioners have failed to establish their case that the premises were allotted otherwise than as service tenements or that they have an independent right of occupation. Occupants of service tenements cannot possess a right of regularisation. In these circumstances, the petition does not call for any interference and is accordingly rejected. However, having regard to the facts and circumstances of the present case, and to enable the allottees to make alternate arrangements, particularly having regard to the onset of the monsoon, the Municipal Corporation is directed not to execute the order of eviction until 31st December, 2001.