Bombay High Court
Bharti Santosh Bhosale vs Municipal Corporation Of Greater ... on 8 December, 2021
Bench: Bharati Dangre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6989 OF 2021
Bharti Santosh Bhosale .. Petitioner
Vs.
Municipal Corporation of Greater
Mumbai - Through Municipal
Commissioner & Anr. .. Respondents
ALONG WITH
WRIT PETITION NO.6990 OF 2021
Sharda Ramchandra Indulkar .. Petitioner
Vs.
Municipal Corporation of Greater
Mumbai - Through Municipal
Commissioner & Anr. .. Respondents
ALONG WITH
WRIT PETITION NO.6992 OF 2021
Prachi Lahu Parab (Heirs & LRs of
Late Chavan Yashwant S.) .. Petitioner
Vs.
Municipal Corporation of Greater
Mumbai - Through Municipal
Commissioner & Anr. .. Respondents
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ALONG WITH
WRIT PETITION NO.6993 OF 2021
Shweta Anant Shirke & Anr. .. Petitioners
Vs.
Municipal Corporation of Greater
Mumbai - Through Municipal
Commissioner & Anr. .. Respondents
ALONG WITH
WRIT PETITION NO.6994 OF 2021
Mugdha Dube .. Petitioner
Vs.
Municipal Corporation of Greater
Mumbai - Through Municipal
Commissioner & Anr. .. Respondents
ALONG WITH
WRIT PETITION NO.6996 OF 2021
Lalita K. Bhuvandas (Heir & LR of
Late Shri Bhuvandas K.G.) .. Petitioner
Vs.
Municipal Corporation of Greater
Mumbai - Through Municipal
Commissioner & Anr. .. Respondents
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ALONG WITH
WRIT PETITION NO.7001 OF 2021
Anandkumar Sadashiv Parab .. Petitioner
Vs.
Municipal Corporation of Greater
Mumbai - Through Municipal
Commissioner & Anr. .. Respondents
ALONG WITH
WRIT PETITION NO.7005 OF 2021
P.S. Shanbag .. Petitioner
Vs.
Municipal Corporation of Greater
Mumbai - Through Municipal
Commissioner & Anr. .. Respondents
ALONG WITH
WRIT PETITION NO.7006 OF 2021
Kadam Sujata Vijay .. Petitioner
Vs.
Municipal Corporation of Greater
Mumbai - Through Municipal
Commissioner & Anr. .. Respondents
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ALONG WITH
WRIT PETITION NO.7011 OF 2021
Ghag Kashinath Keshav .. Petitioner
Vs.
Municipal Corporation of Greater
Mumbai - Through Municipal
Commissioner & Anr. .. Respondents
ALONG WITH
WRIT PETITION NO.7013 OF 2021
Prakash J. Dalvi & Ors. .. Petitioner
Vs.
Municipal Corporation of Greater
Mumbai - Through Municipal
Commissioner & Anr. .. Respondents
ALONG WITH
WRIT PETITION NO.7014 OF 2021
Sushma Bhanudas Sonanis Thr.
Her PoA Mahesh Bhanudas Somanis .. Petitioner
Vs.
Municipal Corporation of Greater
Mumbai - Through Municipal
Commissioner & Anr. .. Respondents
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ALONG WITH
WRIT PETITION NO.7015 OF 2021
Vivek Vinayak Gawade .. Petitioner
Vs.
Municipal Corporation of Greater
Mumbai - Through Municipal
Commissioner & Anr. .. Respondents
ALONG WITH
WRIT PETITION NO.7017 OF 2021
Pawar Ashok Dattaram .. Petitioner
Vs.
Municipal Corporation of Greater
Mumbai - Through Municipal
Commissioner & Anr. .. Respondents
ALONG WITH
WRIT PETITION NO.7018 OF 2021
Abhyudaya Bhagwan Landge .. Petitioner
Vs.
Municipal Corporation of Greater
Mumbai - Through Municipal
Commissioner & Anr. .. Respondents
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ALONG WITH
WRIT PETITION NO.7019 OF 2021
Bakul Kamalkumar Kothare .. Petitioner
Vs.
Municipal Corporation of Greater
Mumbai - Through Municipal
Commissioner & Anr. .. Respondents
ALONG WITH
WRIT PETITION NO.7020 OF 2021
Ashok Shridhar Phodkar .. Petitioner
Vs.
Municipal Corporation of Greater
Mumbai - Through Municipal
Commissioner & Anr. .. Respondents
ALONG WITH
WRIT PETITION NO.7021 OF 2021
Solanki Pushpa Kisan .. Petitioner
Vs.
Municipal Corporation of Greater
Mumbai - Through Municipal
Commissioner & Anr. .. Respondents
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...
Mr. Rohan Cama with Mr. Anish Karande i/b Ms. Sapana
Rachure for the petitioners.
Mr. Om Suryawanshi for the respondent-MCGM in all, except
Writ Petition No.6994 of 2021.
Mr. Joel Carlos with Mr. Om Suryawanshi for respondent-
MCGM in Writ Petition No.6994 of 2021.
Ms. Pratibha A. Sankhe, Estate Officer, P to R Wards is present
in the court.
...
CORAM : MRS. BHARATI DANGRE, J.
RESERVED ON : 18TH NOVEMBER, 2021.
PRONOUNCED ON : 08TH DECEMBER, 2021.
JUDGMENT:-
1. The group of petitions filed under Article 227 of the
Constitution of India pose challenge to an order dated
13/10/2021 passed by the City Civil Court at Bombay in distinct
miscellaneous appeals filed under Section 105F of the Mumbai
Municipal Corporation Act, 1888 (hereinafter referred to as "the
MMC Act". By the said order, the miscellaneous appeals filed
by various petitioners assailing the legality, validity and
propriety of the order dated 09/02/2018 passed by Respondent
No.2 i.e. the Enquiry Officer on issuance of notice under Section
105-B of the MMC Act were dismissed.
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2. On listing of group of petitions, the respective counsel
submit that they would argue the petitions finally at the stage of
admission and they were directed to place on record the
compilation of documents in support of their stand and on
compliance, the petitions are taken up for final hearing at the
stage of admission. Hence, Rule. Rule made returnable
forthwith, with the consent of the parties.
I have heard learned counsel Mr. Rohan Cama, learned
counsel for the petitioners along with Mr. Anish Karande. I have
also heard Mr. Joel Carlos along with Mr. Om Suryawanshi for
the MCGM. Ms. Pratibha A. Sankhe, Estate Officer, P to R
Wards is also present in the court during the hearing.
3. From the list of dates placed on record by learned counsel
Mr. Cama, the events involved can be traced back to early 1960s
when respondent No.1 - Municipal Corporation of Greater
Mumbai (hereinafter referred to as "the MCGM" or "the
Corporation") acquired certain parcels of land in the suburbs of
Mumbai city and embarked upon the development schemes for
housing to be provided to the affected/dishoused persons and the
tenements came be constructed from the Improvement Trust
Budget for housing the public and for housing municipal
employees on ownership basis.
As the project affected persons were reluctant to accept the
allotment, the land was not suitable, the employees of the
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Corporation, who were willing to be accommodated in such
places, were given the tenements on leave and licence basis.
From here, there is a variance in the contention of respective
counsel appearing for the parties as the claim of Mr. Cama is to
the effect that the accommodation was provided with an
assurance and understanding that at a later point of time, the
premises would be allotted to them on ownership basis whereas,
learned counsel for MCGM deny the same and the stand of the
Corporation is that it decided to allot residential accommodation
to its employees to cater to their need for housing and since it
was only available to them on the basis of tenancy during their
period of service with the Corporation and on their retirement,
they were duty bound to vacate the said premises.
4. The stand of the Corporation is that the allotment made to
the employees was in the form of 'staff quarters'; with no right,
title and interest accruing to the employees. The submission of
learned counsel for the Corporation is to the effect that after the
members/ex-employees ceased to be in service of the
Corporation, on retirement or otherwise, they ought to have
handed over the tenements to the Corporation in view of the
acute shortage of housing accommodation to the existing serving
employees and, therefore, the claim of the petitioners is resisted
by the Corporation on the ground that the premsies allotted to
them are in the form of a municipal accommodation/staff
quarters and they cannot claim any vested right to occupy them,
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since their right is restricted to their employment with the
Corporation and once it has come to an end, co-extensively the
right to occupy the said premises shall also come to an end.
5. Amidst these respective stands, learned counsel Mr. Cama
would submit that at some point of time, there were some steps
taken to convert the allotted residential accommodation on leave
and licence basis to ownership basis, subject to finalization of
terms and conditions and the Estate Officer in charge of
allotment of properties of the Corporation had caused to finalize
the terms and conditions on the basis of which the premises
would be converted to one's ownership. This lead to persons
similarly situated like the petitioners to form a Co-operative
Housing Society in the name and style of "Shraddha Cooperative
Housign Society", consisting of the residents of the Mithanagar
Municipal Colony. Learned counsel would submit that in the
year 2007, th then Municipal Commissioner made a reference to
the State Government through the Chief Secretary, Urban
Development Department for disapproving the resolution, which
was passed by the Corporation and as a consequence, the
Corporation initiated proceedings under Section 105B of the
MMC Act against the persons similarly situated like the
petitioners, residing in other similar municipal colonies.
6. An Association was formed and the action of the
Corporation was challenged by filing several writ petitions by
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the petitioners, who were sought to be evicted and the various
Associations espousing their cause. The group of petitions was
was dismissed by the Division Bench of this court on 06/01/2017
(Coram : S.C.Dharmadhikari & B.P.Colabawalla, JJ.) and this
order was confirmed upto the Hon'ble Supreme Court.
7. Pursuant to this, the Corporation issued notice to various
members of the Association including the petitioner asking them
to hand over peaceful possession of the tenements. The said
Association protested by referring to paragraph 54 of the
judgment dated 06/01/2017 and the submission of leanred
counsel for the petitioners is to the effect that talks were again
initiated at the level of Secretariat of the Government, for
considering the proposal for re-development of Mithanagar
Municipal Colony. Howevr, without waiting for the outcome,
the petitioners were served with a notice under Section 105B of
the MMC Act, which was in conformity of paragraph No.54 of
the judgment dated 06/01/2017. The notice issued was in the
form of show cause notice with an averment that the individual
petitioner is in unauthorized occupation of the premises
described in the schedule and in exercise of powers conferred
under sub-section (1) of Section 105B of the MMC Act, they are
ordered to vacate the said premises and he is called upon to
tender an explanation and produce evidence, if any, and show
cause on the date of hearing mentioned as to why the proposed
order should not be made. The respective notice received by
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each of the individual petitioner is appended to the petition filed
by them.
8. From the issuance of the show cause notice, till the final
order passed by the Enquiry Officer, ordering the petitioners to
vacate the premises i.e. on 09/02/2018, the exercise undertaken
has been described by Mr. Cama to be a farce, masquerade and
in fact it ridicule the statuary provision, which is mandatory in
its compliance. According to him, the entire process adopted is
lacking fairness, which is a necessary concomitant of principles
of natural justice and the submission is that this is in utter
violation of the well known principle, accepted by the judicial
system being 'justice should not only be done but should be
manifestly seen to be done' and the exercise undertaken is
travesty of justice.
9. The sequence of events narrated by Mr. Cama between the
issuance of show cause notice dated 08/01/2018 and final order
being passed by the Enquiry Officer on 09/02/2018 can be
tabulated in seriatim, as under:
Date : Events
08/01/2018 : Show cause notice issued under Section 105B
of the MMC Act.
12/01/2018 : The petitioner filed reply to the show cause
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notice before respondent No.2.
12/01/2018 : Respondent No.2 adjourned the proceedings to
23/01/2018 for recording the
statement/examination in chief of respondent
No.1's witness.
23/01/2018 : Examination-in-chief of Sandya T.
Shinwadkar, Administrative Officer (Estate) of
respondent No.1 along with documents, filed.
25/01/2018 : Cross-examination of Shirwadkar by the
petitioner - commence and concluded.
29/01/2018 : Evidence Statement of the petitioner, filed.
Cross-examination of the petitioner by
Shirwadkar - commenced and concluded.
Arguments in the enquiry proceedings -
commenced and concluded.
The matter was adjourned for orders.
09/02/2018 : The impugned order passed, directing the
premises to be vacated within one month.
10. In the backdrop of the aforesaid dates, learned counsel Mr.
Cama would assertively state that the petitioners were given only
three days' time to respond to the show cause notice being issued
to them on 08/01/2018. In contrast, on the reply being filed by
them, 12 days' time was given to respondent No.2 to file their
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evidence affidavit. It is submitted that on 23/01/2018, the
Administrative Officer stepped in the witness box and only one
day was given to the petitioners to cross-examine the witness.
On 25/01/2018, The Administrative Officer was cross-examined
by 16 petitioners and the cross-examination was declared over.
The evidence statement of petitioners was filed on 29/01/2018
and on the very same day, all the 16 petitioners were cross-
examined by the Administrative Officer. On the very same day,
the arguments in the enquiry proceedings were concluded and
the matter was listed for orders. The examination and cross-
examination of 16 petitioners or by 16 petitioners on one day is
argued to be a pretense and empty formality and also an
impossibility unless it was by a predetermined mindset, the
whole process was being adotped is the submission of Mr. Cama.
11. In a short span of one month, within which the entire
process contemplated under Section 105B of the MMC Act has
been completed, is argued to be parody, particularly considering
the said provision to be mere procedural rigmarole and that is
how there is infraction of the procedure contemplated under
Chapter V-A of the MMC Act, is the submission advanced on
behalf of the petitioners.
12. Learned counsel Mr. Cama would submit that when the
petitioners filed appeal before the City Civil Court at Bombay, it
stayed the effect and operation of the impugned order and called
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for the record and proceedings. The stay continued till the final
hearing of the appeals i.e. till 13/10/2021, when the appeals
came to be dismissed in utter ignorance of the submissions,
advanced on behalf of the petitioners, who urged before the court
that the proceedings in the enquiry are flawed since it lacked
opaqueness and fairness. Learned counsel Mr. Cama would
submit that the failure to follow the principles of fairness has
become more imperative because the petitioners were appearing
in person before the Enquiry Officer and in absence of any legal
assistance, the proceedings have been conducted with a
predetermined mindset as if the authority had the end result on
its mind all the while and only the formality remained to be
carried out, before putting a seal on their fate.
13. Per contra, Mr.Suryawanshi, learned counsel for the
Corporation, would submit that the petitioners have been
afforded every opportunity and fairplay and ultimately, who are
the petitioners? They are the persons who have retired long back
from the Corporation on attaining the age of superannuation and
still they are holding on to the premises of the Corporation as
usurpers. The tenements, which were allotted to the employees
of the Corporation on tenancy basis to cater to the housing needs
of the employees of the Corporation, but even after severing
their relationship with the Corporation, they have not vacated the
staff quarters and this is causing inconvenience of the present
employees of the Corporation, who must be provided with the
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housing accommodation, is his precise contention.
He would heavily fall back on the observations made by
the Division Bench of this court, when it discussed the petitions
instituted by various individuals and similarly situated as the
petitioners as well as the housing society formed by such
individual occupants, being aggrieved by action of the
Corporation and my attention is invited to the observations
made by the Division Bench to the following effect:
"41. ....... The Municipal Corporation is right in insisting
that they abide by their undertakings and voluntarily
surrender the premises in their possession to the Municipal
Corporation. Thus, his case was that by accepting all the
terms and conditions, the benefit is obtained in the form of
allotment of staff quarters and municipal premises. The
Municipal Commissioner points out that in the last five
decades or more, new premises could not be constructed by
the Municipal Corporation. It is not possible to obtain any
vacant land or property for construction of new houses.
What he has highlighted is that even if there are
Improvement Committee and General Body
recommendations from the year 1989, there is huge wait list
of the municipal employees awaiting allotment of municipal
accommodation. If the existing premises are handed over
on permanent tenancy/ occupancy, then, this wait listed
employees can never be provided any municipal premises.
Thereafter, he highlights as to how municipal governance is
the primary duty and responsibility of the Municipal
Corporation. The Municipal Corporation serves the
residents and members of the public. The Municipal
Corporation is a public body. Those Joining the services of
the Corporation and later on retiring from the services
would never surrender or handover the municipal premises
in their occupation. That would set a bad precedent The
Municipal Corporation's premises and particularly those
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vacant lands, which are reserved for construction of
residential structures, have been encroached and it is very
difficult to obtain vacant possession thereof. It is in these
circumstances and when the municipal employees obtain
municipal houses, which are public properties, for their
residence, it is their bounden duty to hand them over to the
Municipal Corporation after their retirement Converting
them into permanent occupancy would defeat the larger
public interest.
xxx xxx xxx
45. It is not as if a public property is in exclusive
domain of the municipal administrators. It is a public
property. Ultimately, all power is in the nature of a trust. In
these circumstances, we cannot call upon the
Commissioner or the Corporation to betray this trust,
which is reposed in them. Eventually, public trust is
paramount in discharge of public duties. We cannot direct
the Municipal Corporation to dispose of the properties
after invoking the above principles. Any decision and
equally by us would run counter to these provisions and the
mandate flowing from the MMC Act.
xxx xxx xxx
53. We made it clear to the petitioners' counsel that in
the event the petitioners are ready and willing to handover
peaceful possession of their premises within a specific time
period, then, the recoveries and as threatened against them
may not come into effect. There would be no further
deductions or if there is any balance payable post such
deduction, it would be released. We have not found any
petitioner voluntarily coming forward and to give such an
undertaking to this court. We are, therefore, constrained to
pass a conditional order in that regard.
54. We, therefore, direct that if such of the petitioners,
who surrender and handover peaceful possession of their
premises (municipal premises in their possession) within
three months from today, the Municipal Corporation shall
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not make any further deductions, but release all the balance
sums due and payable with proportionate interest to such
employees. In the event the petitioners do not handover the
premises within this period and continue to retain them,
then, all consequences in law shall follow. Meaning
thereby, the Municipal Corporation can proceed with its
action under section 105B and other provisions of the
MMC Act and recover penal rent/damages/compensation as
well. That can be recovered by attaching movable and
immovable properties of the occupants."
14. It is in the wake of the observations of the Division Bench
at paragraph No.54 of the judgment, the notice came to be issued
to the petitioner udner Section 105B of the MMC Act, which is
the power to evict a person from the properties of the
Corporation. Section 105B of the MMC Act reads thus:
105B. (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) sub-let, 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,
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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 person, as well as any other
person who may be 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.
(2) Before an order under sub-section (1) is made against
any person, the Commissioner shall issue, in the manner
hereinafter provided, a notice in writing calling upon all
persons concerned to show cause why an order of eviction
should not be made.
The notice shall, -
(a) specify the grounds on which the order of eviction is
proposed to be made, and
(b) require all persons concerned, that is to say, all
persons who are or may be in occupation of, or claim
interest in, the corporation premises, to show cause
against the proposed order, on or before such date as is
specified in the notice.
If such person makes an application to the Commissioner
for the extension of the period specified in the notice, the
Commissioner may grant the same on such terms as to
payment and recovery of the amount claimed in the notice,
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as he deems fit.
Any written statement put in any person and documents
produced, in pursuance of the notice, shall be filed with
the record of the case, and such person shall be entitled to
appear before the Commissioner by advocate, attorney or
pleader.
The notice to be served under this sub-section shall be
served in the manner provided for the service of a notice
under sub-section (1); and thereupon, the notice shall be
deemed to have been duly given to all persons concerned.
(3) If any person refuses or fails to comply with an order
made under sub section (1), the Commissioner may evict
that person and any other person who obstructs him and
take possession of the premises, and may for that purpose
use such force as may be necessary."
Sub-section (4) of Section 105B of the MMC Act permits
the Commissioner to remove or cause to be remove, or dispose
of by public auction any property remaining on such premises
and sub-section (5) takes the said procedure further. Sub-section
(6) of the said section is also relevant which reads thus:
"(6) If a person, who has been ordered to vacate any
premises under sub clause (i) or (iv) of clause (a) of sub-
section (1), within one month of the date of service of the
notice, or such longer time as the Commissioner may
allow, pays to the Commissioner the rent and taxes in
arrears, or as the case may be, carries out or otherwise
complies with the terms contravened by him to the
satisfaction of the Commissioner, the Commissioner shall
on such terms, if any including the payment of any sum by
way of damages or compensation for the contravention
aforesaid), in lieu of evicting such person under sub
section (2), cancel his order made under sub-section (1);
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and thereupon such person shall continue to hold the
premises on the same terms on which he held them
immediately before such notice was served on him."
15. Section 105C of the MMC Act is the power of the
Corporation to recover rent or damages as arrears of property
taxes and Section 105D is a provision, which stands without
prejudice to the provisions of Section 105B, where rent can be
recovered by deduction from salary or wages of the employees
of the Corporation. Section 105E of the MMC Act empower the
Commissioner, while he is holding an enquiry and he is vested
with the same powers as of a civil court under the CPC when
trying a suit viz. summoning and enforcing the attendance of any
person and examining him on oath, requiring the discovery and
production of documents, etc. and act as per the Regulations
farmed under Section 105H of the MMC Act in relation to
holding of enquiries under the said Chapter.
16. In the scheme of enactment, the argument advanced on
behalf of the petitioners by Mr. Cama will have to be
appreciated.
17. It is settled position of law that the procedure to be
followed by a statutory body/authority, as the present one, which
is prescribed by a statute, then compliance of the said procedure
is a yardstick of fairness. Rule of fairness is an essential feature
of any Government action. The procedure must be in
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consonance of fundamental principles of fair justice and, if it
offends the fundamental principles of fairness or established
judicial ethos or traditions or shocks the conscience of court
then, the action based on the same deserves to be struck down as
unconstitutional. His Lordship, Justice K. Ramaswamy (as he
was then) in case of Kartar Singh v. State of Punjab (1994) 3
SCC 569 has aptly remarked as under:
"Appearance of injustice is denial of justice. Built in
procedural safeguards assure a feeling of fairness. When
the procedure prescribed by the statute offends the
principle of fair justice or established judicial ethos or
traditions or shocks the conscience, it could be said that it
is fundamentally unfair and violative of the fundamental
fairness which are essential to the very concept of justice
and civilised procedure. Whether such fundamental
fairness has been denied is to be determined by an
appraisal of the totality of facts, gathered from the setting,
the contents and the procedure which feed the end result.
The procedure which smacks of the denial of fundamental
fairness and shocks the conscience or universal sense of
justice is an anathema to just, fair or reasonable
procedure. Articles 14 and 21 frown against arbitrary and
oppressive procedure."
18. By this time, it is a well settled position in law that a quasi
judicial body/authority while acting in exercise of its statutory
power must act fairly and is expected to act with an open mind
while initiating show cause proceedings. A show cause is
intended to give a person proceeded against, a reasonable
opportunity of making his objection against the proposed
charges indicated in the notice, which he is called upon to show
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cause. It is not permissible to approach the proceedings on the
predefined and desired conclusions and, if that is done, the entire
proceedings initiated by the issuance of the show cause notice
will get vitiated by unfairly and biased approach and subsequent
proceedings become a mere formality to be completed. The
legislature never intended the authorities, upon whom, it
conferred power to act as a quasi judicial authority and
determine the right of the parties, to abuse the process of law or
to act unfairly. Where the law requires the authority to act or
decide, it is implicit that the exercise of power by the said
authority should be done objectively, fairly and reasonably. The
action of such authority shall be tested on the anvil of 'Rule of
law' and fairness of justice particularly if the competing interest
of the members of the society is involved. The exercise of a
power by an authority, which is vested with certain discretion
will require a responsible approach and it is expected of the
authority to be guided by the principles provided in the statute or
rules or regulations subject to which the power or the discretion,
if any, shall be exercised. The rule of fairness is an essential
feature of the Government action and, when a statute contain a
provision for issuance of show cause notice, it necessarily
contemplates that the person proceeded against must be
informed about the charges so that he can take his stand/defence
and prove his innocence or establish that the said action initiated
against him need to be dropped. But, when the functioning of
the authority is with a predetermined approach and, instead if he
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is made to confront with the definite conclusion with a prejudged
mind, such action shall fail for lack of fairness.
19. Justice is the goal of the quasi judicial proceedings too,
and to inspire confidence and to justify its existence and exercise
of power, such authority must act with fairness. In the present
case, from the show cause notice, it is apparent that the Estate
Officer has demonstrated his opinionated approach and such a
closed and shut approach is inconsistent with the scheme of
Section 105B of the MMC Act. While issuing a show cause
notice, the authority must take care to manifestly keep an open
mind as it is expected to act fairly, in adjudicating the guilt or
otherwise of the person proceeded against. The principle that
'justice should not only be done but it must eminently appear to
be done' is equally applicable to the quasi judicial proceedings,
if such proceeding has to inspire confidence in the mind of those
people, who are subjected to it.
20. As regards whether the procedure for eviction initiated
under Chapter IV of the MMC Act by issuing of show cause
notice and its culmination into an order directing eviction of the
noticee is vitiated by bias, following the test in Ridge v.
Baldwin & Ors. reported in (1963) 2 WLR 935 must be invoked;
that by fair procedure one would mean that what a reasonable
man would regard as fair in a particular circumstances. Undue
haste, in absence of any urgency, would shake the confidence of
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an individual in the authority, which is bound to decide as per
law. If the procedure followed is unjust or outrageous, such
decision shall be set aside as arbitrary and unreasonable. The
Hon'ble Supreme Court in the case of Vinod Kumar v. State of
Haryana reported in (2015) 3 SCC 138 has made the following
observations:
"23. In these cases, where the courts are concerned with
judicial review of the administrative action, the parameters
without which the administrative action can be reviewed
are well settled. No doubt, the scope of judicial review is
limited and the courts do not go into the merits of the
decision taken by the administrative authorities who are
concerned with the decision making process. Interference
with the order of administrative authority is permissible
when it is found to be irrational and unreasonable or there
is procedural impropriety."
21. There can be no doubt about the position in law, that fair
procedure and just treatment is the core of our jurisprudence.
The extent of applicability of principles of natural justice and the
concept of fairness depends upon the circumstances of case, the
statutory frame work, the subject matter to be dealt with, the
nature of enquiry, the consequence that may visit a person after
such enquiry form out of the decision, pursuant to such an
inquiry and so forth.
The rule of fair hearing, a reasonable opportunity of
hearing, which is an important ingredient of audi alteram
partem rule and embraces almost every facet of fair procedure.
The rule of fair hearing requires that the affected party should be
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given an opportunity to meet the case against him effectively and
the right to fair hearing takes within its fold a just decision
supplemented by following fair procedure, coupled with
assigning of reasons and rational on which the conclusion is
based.
22. The right of fair hearing, in the words of the Apex Court in
the case of Kanachur Islamic Education Trust v. Union of
India & Anr. reported in (2017) 15 SCC 702 casts a steadfast
and sacrosanct obligation on the adjudicator to ensure fairness in
procedure and action, so much so that any remiss or dereliction
in connection therewith would be at the pain of invalidation of
the decision eventually taken. Every executive authority
empowered to take an administrative action having the potential
of visiting any person with civil consequences must take care to
ensure that justice is not only done but also manifestly appears to
have been done.
23. In the absence of contrary indication in the statue, the
procedural fairness is an implied mandatory requirement to
protect an arbitrary action where the statute provides wide power
coupled with wide discretion on the authority. The duty is to act
fairly, not so much to act judicially. The action of the authority
is expected to be impartial and to be free from even appearance
of unfairness, unreasonableness and arbitrariness.
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24. 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. 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."
25. Action of the respondent No.1 being determined on the
aforesaid parameters, falls short of it.
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The procedure adopted by the enquiry officer can be
described as an action in haste, without any necessity of being
hasty. True it is, that the MCGM is interested in evicting the
petitioners, on a declaration coming from this court that they are
not entitled to claim any right, title and interest in the premises,
which were acquired by them as 'staff quarters' and no
concession can be made in favour of the occupants by the
Corporation as they are holding the property in trust and no
public property can be disposed of even by a public body except
as authorized by law. The judgment of the Division Bench has
frowned upon an attempt on the part of the administration to deal
with the property, devoid of the element of public trust.
However, in spite of the said observations, after giving
opportunity to the occupants to vacate the premises within a
stipulated period, the court was constrained to pass a conditional
order to the effect that if they vacate the premises peacefully, the
deductions and recoveries as threatened against them may not
come into effect. The option was given by the Division Bench to
the occupants to surrender and hand over the peaceful possession
of the premises within three months and the Corporation was
directed not to make any further deduction but release all the
balance sums due and payable to them towards their retirement
benefits. However, in a contingency when the petitioners fail to
comply and do not hand over the premises within the prescribed
time limit, the consequence in law were directed to be followed.
The Division Bench made it amply clear in paragraph No.54 and
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the consequences in law that shall follow has been clarified to be
the action under Section 105B of the MMC Act and to recover
penal rent/damages/possession as well and also of attaching
moveable and immoveable properties of the occupants.
26. In view of such liberty being granted to such authority to
exercise its power under Section 105B of the MMC Act, it is not
only in the interest of the Corporation to follow the procedure,
since the said section also contemplate the levy of damages or
compensation for contravention of the orders of the
Commissioner, who has been asked to vacate the premises by
virtue of sub-section (6) of Section 105B. The procedural
shortcut which the Corporation is adopting is not only denying
justice to the petitioners but is also depriving the Corporation to
initiate action in terms of the scheme contained in Section 105B
of the MMC Act which permits the Corporation to evict persons
from its premises and also to recover rent and taxes and arrears
in case there is failure to vacate the premises. Enquiry officer
unmindful of the provision has proceeded with the show cause
notice as an empty formality with a closed mind, about the
conclusion which has arrived at, before evicting the occupants.
27. In any action taken in haste and concluded barely within a
period of one month, where 16 petitioners being examined and
cross-examined on one single day, itself justify an interference at
the instance of this court. The City Civil Court at Bombay has
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failed to consider the aspect of fairness which is lacking the
entire proceedings and has perfunctorily dismissed the Appeals,
by laying emphasis on the judgment of the Division Bench,
unmindful of the fact that the Division Bench itself has asked to
follow the procedure under Section 105B of the MMC Act. The
following observations in the order, clearly reflect this.
"12. In that view of the matter, on merits when the
appellant has neither raised, not is in a position to make out
any vested right in respect of the premises in question, it
cannot at all be said that the possession is authorized when
the service has come to end long back.
13. As regards principle of natural justice is concerned,
it has been contended that the proceedings were culminated
within a period of one month. It cannot be lost sight of that
the factual matrix of the matter is that the appellant had no
legal right to be made out before Enquiry Officer. Whatever
grounds that could be raised or were sought to be raised has
been exhaustively considered by the Hon'ble High Court
while passing the judgment recorded hereinabove and in that
view of the matter the proceedings were required to be
undertaken.
14. ... ... ...
15. ... ... ...
16. Thus, there does not appear to be any violation of
principles of natural justice or any fallacy in the procedure
especially in the facts and circumstances of the present case.
Moreover, test of 'real prejudice' as has been evolved in
respect of adherence of principles of natural justice by the
Hon'ble Supreme Court has in any case not been made out..."
28. In the light of the aforesaid observation, the decision of the
Enquiry Officer, sans adhering to the principle of fairness, which
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is upheld by the City Civil Court at Bombay, cannot be sustained
and set aside. The proceedings under Section 105B of the MMC
Act, initiated against the petitioners is remitted back to the
Enquiry Officer with a stipulation that the petitioners shall, in no
way, contribute in delaying the culmination of the proceedings
and the Enquiry Officer shall conclude the said proceeding by
adhering to the procedure of law, including adequate opportunity
being afforded to the petitioners to show cause to the notices
received by them, within a period of six months from today.
Rule is made absolute in the aforesaid terms. No order as
to costs.
[SMT. BHARATI DANGRE, J.]
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