Bombay High Court
Parveen Usman Shaikh vs Municipal Corporation Of Greater ... on 16 September, 2025
2025:BHC-AS:38417
901-WP-6343-2024.doc
rrpillai IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6343 OF 2024
Shri Satish Mahadeo Rupwate,
Heir and L.R. of Late Shri Mahadeo Rupawate,
Age : 72, Indian Inhabitant,
Room No. 1, Chawl No. D/18,
664 Tenements, V. P. Municipal Colony,
... Petitioner
Vikhroli (W), Mumbai-400 079
Vs.
1. Municipal Corporation of Greater Mumbai
(through the Municipal Commissioner),
Mahanagar Palika Road,
Opposite CST Station,
Fort, Mumbai-400 001
2. Mr. Kisan Govind Dharade
Administrative Officer
Estate Department
"N" Ward, MCGM. 3rd Floor
Jawahar Road, Ghatkopar (East)
Mumbai-400 077
3. Mr. J. K. Kadam
Enquiry Officer
"N" Ward Office, MCGM, 3rd Floor
Jawahar Road, Ghatkopar (East)
Mumbai-400 077 ... Respondents
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WITH
WRIT PETITION NO. 6378 OF 2024
Smt. Jayashree Rajaram Rasam
Heir & L.R. of Late Shri Rajaram Rasam
Age : 53, Indian Inhabitant
Room No. 6, Chawl No. D/18
664 Tenements, V. P. Municipal Colony,
... Petitioner
Vikhroli (W), Mumbai-400 079
Vs.
1. Municipal Corporation of Greater Mumbai
(through the Municipal Commissioner),
Mahanagar Palika Road,
Opposite CST Station,
Fort, Mumbai-400 001
2. Mr. Kisan Govind Dharade
Administrative Officer
Estate Department
"N" Ward, MCGM. 3rd Floor
Jawahar Road, Ghatkopar (East)
Mumbai-400 077
3. Mr. J. K. Kadam
Enquiry Officer
"N" Ward Office, MCGM, 3rd Floor
Jawahar Road, Ghatkopar (East)
Mumbai-400 077 ... Respondents
WITH
WRIT PETITION NO. 6410 OF 2024
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Asha Sudhakar Ghodke
Age : 59, Indian Inhabitant
Room No. 5, Chawl No. D/18
664 Tenements, V. P. Municipal Colony,
Vikhroli (W), Mumbai-400 079 ... Petitioner
Vs.
1. Municipal Corporation of Greater Mumbai
(through the Municipal Commissioner),
Mahanagar Palika Road,
Opposite CST Station,
Fort, Mumbai-400 001
2. Mr. Kisan Govind Dharade
Administrative Officer
Estate Department
"N" Ward, MCGM. 3rd Floor
Jawahar Road, Ghatkopar (East)
Mumbai-400 077
3. Mr. J. K. Kadam
Enquiry Officer
"N" Ward Office, MCGM, 3rd Floor
Jawahar Road, Ghatkopar (East)
Mumbai-400 077 ... Respondents
WITH
WRIT PETITION NO. 6412 OF 2024
Shri Girish Umesh Sodiye
Age : 57, Indian Inhabitant
Room No. 2, Chawl No. D/14
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664 Tenements, V. P. Municipal Colony,
... Petitioner
Vikhroli (W), Mumbai-400 079
Vs.
1. Municipal Corporation of Greater Mumbai
(through the Municipal Commissioner),
Mahanagar Palika Road,
Opposite CST Station,
Fort, Mumbai-400 001
2. Mr. Kisan Govind Dharade
Administrative Officer
Estate Department
"N" Ward, MCGM. 3rd Floor
Jawahar Road, Ghatkopar (East)
Mumbai-400 077
3. Mr. J. K. Kadam
Enquiry Officer
"N" Ward Office, MCGM, 3rd Floor
Jawahar Road, Ghatkopar (East)
Mumbai-400 077 ... Respondents
WITH
WRIT PETITION NO. 6347 OF 2024
Smt. Parveen Usman Shaikh
Age : 53, Indian Inhabitant
Room No. 3, Chawl No. D/18
664 Tenements, V. P. Municipal Colony,
Vikhroli (W), Mumbai-400 079 ... Petitioner
Vs.
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1. Municipal Corporation of Greater Mumbai
(through the Municipal Commissioner),
Mahanagar Palika Road,
Opposite CST Station,
Fort, Mumbai-400 001
2. Mr. Kisan Govind Dharade
Administrative Officer
Estate Department
"N" Ward, MCGM. 3rd Floor
Jawahar Road, Ghatkopar (East)
Mumbai-400 077
3. Mr. J. K. Kadam
Enquiry Officer
"N" Ward Office, MCGM, 3rd Floor
Jawahar Road, Ghatkopar (East)
Mumbai-400 077 ... Respondents
WITH
WRIT PETITION NO. 6436 OF 2024
Yeshwant A. Gaonkar,
Heir and L.R. of late Shri K. Y. Gaonkar
Age : 67, Indian Inhabitant
Room No. 7, Chawl No. D/18
664 Tenements, V. P. Municipal Colony,
... Petitioner
Vikhroli (W), Mumbai-400 079
Vs.
1. Municipal Corporation of Greater Mumbai
(through the Municipal Commissioner),
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Mahanagar Palika Road,
Opposite CST Station,
Fort, Mumbai-400 001
2. Mr. Kisan Govind Dharade
Administrative Officer
Estate Department
"N" Ward, MCGM. 3rd Floor
Jawahar Road, Ghatkopar (East)
Mumbai-400 077
3. Mr. J. K. Kadam
Enquiry Officer
"N" Ward Office, MCGM, 3rd Floor
Jawahar Road, Ghatkopar (East)
Mumbai-400 077 ... Respondents
Mr. Rajendra Pai, Senior Advocate a/w Aloukik Pai a/w Akshay Pai a/w
Siddhi Bhosale a/w Saharsh Sakhare a/w Omkar Kalundrekar a/w
Rishabh Shanbhag a/w Sanika Gawade i/b Bina R. Pai for the
Petitioner.
Mr. Som Sinha a/w Divya V. a/w Rutuja Thaker a/w Rutuja Bhise a/w
Santosh Mali for the Respondent-MCGM.
Mr. Sandeep K. Ghige, Estate Officer N. Ward, Present.
Mr. Shamkant Baviskar, Water Works N. Ward, Present.
CORAM : GAURI GODSE, J.
RESERVED ON: 4th SEPTEMBER 2025
PRONOUNCED ON: 16th SEPTEMBER 2025
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JUDGMENT:
1. These petitions are filed to challenge the judgment and order
passed by the City Civil Court in the respective appeals filed by
these petitioners under Section 105F of The Mumbai Municipal
Corporation Act, 1888 ("MMC Act"). The appeals were filed to
challenge the eviction order, passed by the Inquiry Officer under
Section 105B of the MMC Act. All these petitioners are the heirs
and legal representatives of the employees of the respondent
corporation. Since common questions are involved in all these
petitions, they were heard together and are disposed of by this
common judgment.
Facts in brief :
2. These petitions have a chequered history; hence, the
following facts would be necessary to understand the controversy
involved in these petitions:
(a) The structures involved in these litigations, presently
occupied by these petitioners, were allotted in lieu of the
employment, to the corporation's employees as staff quarters
on a leave and licence basis. As per the leave and licence
agreement, the employees had agreed to vacate the
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respective premises on their retirement/ superannuation/
discharge from employment. Despite retirement, none of the
ex-employees vacated their respective structures.
(b) 2006-2007: Notices were issued to the occupants under
Section 105B of the MMC Act, calling upon them to vacate
their respective structures. In response to the notice issued to
the occupants, all occupants, including these petitioners,
contended that their structures were included in the
Corporation's scheme of permanent housing accommodation
in 1992. They relied on a circular dated 1 st September 1989 to
claim that the corporation had agreed to convert the premises
from a leave and licence basis to an ownership basis after
redevelopment.
(c) 7th October 2010: The Corporation issued a circular
withholding retirement benefits as the occupants had refused
to vacate their respective premises. Various writ petitions
were filed in this court sometime in 2008, 2009, 2010 and
2013.
(d) 6th January 2017: The group of petitions were decided
by a common judgment by the Division Bench of this court.
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The petitions were filed by either ex-employees or their heirs
and legal representatives, who had retired from the
corporation's service. The petitioners claim that their
respective structures were allotted to them on a permanent
tenancy /ownership basis. They claimed that the co-operative
societies formed by the ex-employees formed an association.
These cooperative societies pertain to five different sites
where structures were allotted on a similar leave and licence
basis to the employees of the corporation. The petition filed
by More Jeevan Yashwant and Others vs. Mumbai Municipal
Corporation and Another1, pertained to the site at Chembur.
The other petitions were filed by the Federation of Co-
operative Societies, formed by former employees. In all these
petitions, the petitioners claimed the benefit of permanent
housing accommodation. This court dismissed all the
petitions by a common judgment.
(e) This Court, in More Jeevan Yashwant and Others, along
with other connected petitions, granted an option to the
petitioners to vacate the premises within three months, and
subject to their vacating the premises, the balance of the
1 2017 SCC OnLine Bom 10101
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retirement benefits that were withheld by the corporation were
directed to be released. The Division Bench of this court
further held that the petitioners cannot retain the structures
endlessly, and if the premises are not handed over within the
time granted, the corporation shall take necessary action for
evicting the respective occupants.
(f) 1st May 2017: The occupants challenged the order passed
by the Division Bench of this court before the Hon'ble Apex
Court. However, the Special Leave Petitions were dismissed,
and the order passed by the Division Bench of this court was
confirmed.
(g) 3rd May 2017 : The State Government directed the
corporation to verify whether the structures occupied by the
ex-employees of the corporation or through their heirs and
legal representatives could be considered for conversion on
an ownership basis.
(h) 5th June 2017: The corporation examined the
documents and issued Show Cause Notices to the occupants
as contemplated under sub-section (2) of Section 105B of the
MMC Act. Accordingly, enquiry proceedings were initiated.
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(i) 29th September 2021 : Enquiry proceedings in respect
of a group of occupants at Vikhroli Parksite Municipal Colony
were decided by a common judgment by the enquiry officer,
and the enquiry officer granted one month's time to vacate
and hand over the premises from the date of service of the
notice under sub-section (1) of Section 105B of the MMC Act.
(j) November 2021 : These petitioners filed their respective
appeals under Section 105F of the MMC Act. The petitioners
filed an application for leading additional evidence to bring on
record certain documents prior to the circular issued by the
corporation in 1989, and the documents which were not part
of the petitions before the Division Bench.
(k) 1st February 2024 : The appeals filed by these
petitioners were decided by passing separate judgments. All
the appeals were dismissed, and the petitioners were granted
time to vacate the premises. The application for leading
additional evidence was also rejected. Hence, these petitions.
Submissions on behalf of petitioners:
3. Learned senior counsel for the petitioners submitted that
various municipal premises were constructed sometime in 1964
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at five different locations at Vikhroli Parksite Municipal Colony,
Barve Nagar Ghatkopar, Malad Malvani, Mithanagar Goregaon
and Deonar, Chembur. According to the learned senior counsel
for the petitioners, the structures were constructed under Budget
"B" of the Improvements Committee of the Corporation for
housing project affected persons. In exercise of powers under
Section 92 of the MMC Act, a resolution was passed on 7 th May
1985 to convert these premises constructed in 1964 into an
ownership basis. Accordingly, a resolution was passed by the
Improvements Committee on 10 th August 1989, and the same
was approved by the General Body of the corporation on 1 st
September 1989. The terms and conditions for converting the
structures into ownership basis were finalised by a resolution
dated 19th December 1991. Accordingly, the occupants of the
respective colonies at the five different locations formed co-
operative housing societies. These co-operative housing
societies prepared proposals for redevelopment and submitted
them before the corporation.
4. Learned senior counsel for the petitioners submitted
that on 20th October 2007, though the Municipal Commissioner
made a reference under Section 64 of the MMC Act for
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cancelling the resolution of 1989 for converting the structures
into ownership basis, the said proposal submitted by the then
Municipal Commissioner before the State Government remained
pending, and it was never approved. On 3 rd May 2017, the State
Government directed the corporation to explore the possibility of
a scheme for the conversion of the structures into an ownership
basis. However, the corporation initiated proceedings under
Section 105B for the summary eviction of all the occupants.
5. Learned senior counsel for the petitioners relied upon the
orders passed in the other group of petitions filed before this
court, in the case of Vivek Gawde and others pertaining to the
site of Mithanagar, Goregaon. These petitions were filed to
challenge the order rejecting their prayer to stay the enquiry till
the regulations under Section 105H were framed. The Enquiry
Officer rejected the prayer; hence, appeals were filed, which
were dismissed. This court decided the group of petitions filed
by Vivek Gawde and Others on 19th July 2022. This court framed
nine points for consideration and directed that the enquiry be
conducted as per the nine points for consideration framed by
this court. He submits that being aggrieved by the said decision
in the group of petitions of Vivek Gawde and Others, the
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corporation filed a Special Leave Petition before the Hon'ble
Apex Court.
6. The Hon'ble Apex Court disposed of the Special Leave
Petition of Municipal Corporation of Greater Mumbai and Others
Vs Vivek Gawde and others2 by directing that the 5th and 6th
points framed by this court be decided. Learned senior counsel
for the petitioners submitted that the Hon'ble Apex Court
observed that if the occupants raise the point to remain in
possession by virtue of Section 53-A of the Transfer of Property
Act, 1882 ("TP Act"), it would be open for the Enquiry Officer to
determine the same. The petitioners, therefore, also relied upon
additional evidence sought to be produced by filing applications
for additional evidence to contend that they were entitled to
protect their possession under Section 53-A of the TP Act.
7. Learned senior counsel for the petitioners submitted that
the proposal submitted by the then Municipal Commissioner on
20th December 2007, proposing to cancel the scheme approved
on 10th August 1989, was a proposal under Section 64 of the
MMC Act. Since there was no response from the State
Government within the 45 days from the date of the proposal,
2 2024 SCC Online SC 3722
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the same shall be deemed to have been rejected by the State
Government. He relied upon the proviso to clause (e) of sub-
section 3 of Section 64 of the MMC Act. He therefore submitted
that based on the scheme approved by circular dated 10 th
August 1989, the occupants of the respective locations on the
five different sites formed a co-operative housing society and
submitted a proposal for redevelopment. Accordingly, one-third
of the retirement benefit of the respective occupants were
withheld by the corporation.
8. Learned senior counsel for the petitioners relied upon the
model letter annexed on page 102 of the first petition to support
his submissions that the partial retirement benefits were withheld
as and by way of consideration for the conversion of the
structures on an ownership basis. He submitted that such letters
were issued to all the petitioners at the time of their respective
retirement.
9. According to the learned senior counsel for the petitioners,
the present petitioners are concerned with Writ Petition No. 1797
of 2009 filed before the Division Bench of this Court by the
Federation of Societies. He points out the prayers made in the
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petition, whereby the federations prayed for the implementation
of Resolution No. 343, dated 1 st September 1989, for converting
the tenements to an ownership basis. He thus submits that the
prayer made on behalf of the federation was for specific
performance of the Resolution No. 343. He submits that in view
of the prayers for specific performance, the federation
challenged the eviction notice issued in January 2009. He thus
submits that even if the prayer for specific performance is
rejected, the petitioners would be entitled to raise a ground of
defence to protect their possession as contemplated under
Section 53-A of the TP Act. He submits that in the petition filed
by the federation, the prayers for protection were not in the
context of Section 53-A of the TP Act, and the petitioners'
protection prayers were only with reference to the eviction
notice.
10. Learned senior counsel for the petitioners thus submits
that the earlier action initiated by the corporation under Section
105B of the MMC Act was given up by the corporation. After the
order passed by the Division Bench, fresh action under Section
105B was initiated by the corporation, which is the subject
matter of the challenge in the present petitions. He thus submits
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that in view of the fresh notice issued for eviction, the petitioners
are entitled to claim benefit under Section 53-A of the TP Act.
He submits that even if, in the reply to the fresh notice for
eviction, a plea under Section 53A of the TP Act is not taken by
these petitioners, they would be entitled to raise these grounds
at a subsequent stage. To support his submission learned senior
counsel for the petitioner relied upon the decision of the Madras
High Court in the case of T. S. Karthikeya Mudaliar vs. Singaram
Pillai and Another3.
11. Learned senior counsel for the petitioners submits that
though a separate application for leading additional evidence
was not filed in all the appeals, an application in the appeal of
Satish Mahadeo Rupwate was treated as a common application
for all these petitions. He relies upon the application at Exhibit-4,
which, according to the learned senior counsel for the
petitioners, was treated as a common application for all these
petitions. He submits that the foundational document for seeking
protection under Section 53-A of the TP Act is the document
dated 24th April 1985, which is a commissioner's report with the
subject of conversion of the municipal tenements on leave and
3 1956 SCC Online Mad 85
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licence into ownership basis. This document is on page 63 of the
compilation for additional evidence marked as Exhibit 'X-1' in
these petitions. He submits that all the reports by the earlier
commissioners were referred to in this report, which stated the
reason for converting the structures on a leave and licence basis
into an ownership basis. According to the learned senior counsel
for the petitioners, these reports were prepared in exercise of
powers under Section 92 of the MMC Act. Based on these
reports, a decision was taken which was approved by the
General Body on 1st September 1989.
12. Learned senior counsel for the petitioners relies upon a
sample letter, which is annexed on page 17 of the compilation
marked as 'X-2'. He submits that the sample letter clearly
records the conversion of the structures allotted on leave and
licence to an ownership basis to the co-operative societies. He
submits that the Ward Officer issued the letter to the concerned
Administrative Officer. Hence, according to the learned senior
counsel for the petitioners, the petitioners' possession was not
required to be taken after the retirement of the respective
employees of the corporation.
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13. Learned senior counsel for the petitioners relied upon a
sample undertaking annexed on page 21 of the compilation
marked as 'X-2'. He submits that, as per the sample
undertaking, the employees had stated that the tenants have no
other premises. He further relies upon the settlement claim
annexed at page 24 of the compilation marked as 'X-2' to
support his submissions that, as per the settlement claim issued
by the corporation, it was agreed that vacant possession would
not be necessary, and the reference for this settlement was the
Circular No. 343 of 1989. He therefore submits that one-third of
retirement benefits were withheld, which is the consideration for
the conversion of the structure on leave and license basis into
ownership basis. He further points out the circular dated 1 st
February 1991, on page 26 of the compilation marked as 'X-2',
for the purpose of releasing pension. He submits that even these
circular records, possession would not be necessary to be given,
and partial retirement benefits shall be released. He thus
submits that this circular shows that there was a new contract
which took place, substituting the original leave and licence
agreement. Hence, there was a novation of the contract. He thus
submits that in view of the novation of the contract, these
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petitioners are entitled to seek benefit as contemplated under
Section 53-A of the TP Act.
14. The learned senior counsel for the petitioners points out
that in the earlier round of litigation, when eviction notices were
issued, this court, vide order dated 16 th October 2009, had
granted ad-interim protection. He thus submits that even during
the pendency of the decision in the writ petitions decided in the
case of More Jeevan Yashwant and Others, the petitioners'
possession was protected.
15. Learned senior counsel for the petitioners relied upon
the documents from page 19 onwards in the compilation marked
as 'X-1' pertaining to the site at Mithanagar, Goregaon. He
submits that all these documents were produced in the enquiry
pertaining to the other sites. After these petitioners learnt about
these documents, they filed an application for producing them by
way of additional evidence in the appeals filed by these
petitioners. He points out that the learned Judge of the City Civil
Court erred in keeping the application for additional evidence
pending for deciding it along with the appeal. He relies upon
Section 107 of the Code of Civil Procedure, 1908
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("CPC"), which, according to the learned senior counsel for the
petitioners, provides for inherent powers read with procedural
powers under Order XLIII Rule 27 of the CPC, permitting the
court to rely upon additional evidence.
16. According to the learned senior counsel for the
petitioners, the protection under Section 53-A is pleaded in the
appeals filed by these petitioners. However, the learned Judge
of the City Civil Court, while deciding the appeals, failed to apply
the relevant provisions under Order XLI Rule 27 of the CPC. To
support his submissions for relying upon the documents
produced by way of additional evidence in support of the plea of
Section 53-A of the TP Act, he relied upon the decision of this
court in the case of Sudhir Bhatia vs. Central Government of
India and Others4, and an unreported decision in the case of
The Premier Automobiles Ltd. vs. Kabirunissa wd/o. Amiruddin
Karim Ashraff, alias Kallu Changu and Others 5 and the decision
in the case of Hasanate Taheriyaah Fidayyiah vs. Mahesh s/o.
Kishor Saran 6.
4 2010 SCC Online BOM 1648
6 2014 SCC OnLine Bom 1593
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17. Learned senior counsel for the petitioners relied upon a
letter dated 20th December 2007 issued by the then Municipal
Commissioner, which, according to the learned senior counsel
for the petitioners, was a proposal to cancel the conversion
scheme floated by the circular of 1989. According to the learned
senior counsel for the petitioners, this proposal stood cancelled
as the State Government never accepted it. Hence, the powers
exercised by the earlier Municipal Corporation under Section 92
of the MMC Act, approved by the corporation in the General
body in 1989, stand confirmed. The corporation acted upon the
decision of 1989 by withholding one-third of the retirement
benefit towards consideration for the conversion of the
structures allotted on leave and licence basis to ownership
basis. Hence, according to the learned counsel for the
petitioners, the protection under Section 53-A of the TP Act is
applicable. To support his submissions, learned senior counsel
for the petitioners relied upon the decision of the Hon'ble Apex
Court in the case of Ghanshyam vs. Yogendra Rathi 7 and
Maneklal Mansukhbhai vs. Hormusji Jamshedji Ginwalla and
Sons8.
7 (2023) 7 SCC 361
8 1950 SCC 83
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18. Learned senior counsel for the petitioners, therefore,
submitted that even if a written contract of transfer is not signed
but an agreement to contract or the terms of the agreement are
agreed upon and the terms of the contract can be deduced
through such an agreement, the protection under Section 53-A
has to be applied. Hence, according to the learned counsel for
the petitioners, if it can be ascertained that an executory contract
was entered into, though not executed, still Section 53-A was
applicable to protect the possession.
19. Learned senior counsel for the petitioners, therefore,
submits that it was necessary for the appeal court to consider
the applicability of Section 53-A of the TP Act by permitting the
petitioners to lead additional evidence as per the application filed
in the appeals. He thus submits that the impugned orders must
be set aside and the proceedings must be remanded to the
enquiry officer for deciding the applicability of Section 53-A of
the TP Act to the petitioners to protect their possession.
Submissions on behalf of the respondents (Corporation):
20. Learned counsel for the corporation submitted that the
agreement for leave and licence executed by the employees of
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the corporation provides for categorical clause where the
employees had agreed to vacate the respective premises on
their retirement/superannuation/discharge from the employment.
Despite the retirement of the respective employees the premises
were not handed over to the corporation. Hence, necessary
action was initiated by the corporation, which was the subject
matter of challenge in the various petitions, which were decided
by the Hon'ble Division Bench in the case of More Jeevan
Yashwant and Others, including the petitions filed by the
federation.
21. Hence, according to the learned counsel for the
corporation, the issues raised by these petitioners were squarely
covered in the petition filed on behalf of the federation, which
was also decided by the Division Bench in the common
judgment. The petitioners raised the grounds for their
entitlement to conversion of the premises into ownership based
on the Resolution No. 343 dated 1 st September 1989 and the
letter issued by the then Municipal Commissioner on 20 th
December 2007 proposing to cancel the Resolution No. 343. He
submits that the Division Bench of this court decided all these
aspects in the decision of More Jeevan Yashwant and Others .
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He points out that the ex-employees of the corporation and the
respective association had filed various writ petitions, which
were decided by the common judgment in the case of More
Jeevan Yashwant and Others. He points out that the main
prayers in these petitions were for conversion of the allotment to
the respective employees into ownership basis in accordance
with Resolution No. 343, with further prayers restraining the
corporation from evicting the occupants.
22. Learned counsel for the corporation points out the
relevant findings of the Division Bench in the decision of More
Jeevan Yashwant and Others. He submits that the Division
Bench of this court categorically held that the Resolution No.343
was a mere proposal and cannot be termed as a final decision of
the corporation to grant the structures on a permanent basis. He
points out that this court, in the decision of More Jeevan
Yashwant and Others, categorically recorded that the petitioners
had an option to hand over the premises to the corporation and
accept the retirement benefits without any deduction. However,
none of the occupants, including these petitioners, agreed to the
option given by the Division Bench of this court. Hence, as
directed by the Division Bench of this court, the corporation
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initiated action under Section 105B of the MMC Act for the
eviction of the occupants, including these petitioners. The
corporation, therefore, followed due process of law as
contemplated under the MMC Act for the eviction of these
petitioners. The petitioners failed to vacate the premises, hence
the enquiry proceedings were initiated. After giving the
reasonable opportunity to the petitioners to lead evidence, the
enquiry officer passed an order on 29 th September 2021
directing the petitioners to vacate the respective premises. The
decision of the enquiry officer was challenged by filing an
appeal, which was also heard at length. The appeal court, after
taking cognisance of the various observations and directions
issued by the Division Bench of this Court, examined all the
documents sought to be relied upon by these petitioners by way
of additional evidence.
23. Learned counsel for the corporation referred to the
judgments passed by the appeal court. The appeal court has, in
detail, examined all the documents sought to be produced by
way of additional evidence and rightly held that none of the
documents support the petitioners' contention for protection
under Section 53-A of the TP Act. He submits that the
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documents sought to be relied upon by way of additional
evidence are nothing but an attempt on behalf of the petitioners
to further delay the implementation of the eviction orders. He
relied upon the affidavit-in-reply filed on behalf of the corporation
in response to the documents at X1, X2 and the SLP
compilation. He submits that neither are there any pleadings in
support of the additional documents nor any of the documents
have any relevance for the applicability of protection under
Section 53-A of the TP Act. None of the parameters
contemplated under Order XLI Rule 27 of the CPC are satisfied
for the production of additional evidence; hence, the appeal
court has rightly rejected the application. He submits that even if
the documents sought to be produced by way of additional
evidence were produced before the enquiry officer, the same
would not have made any difference in the reasons recorded for
passing the eviction order. He therefore submits that in the
absence of any supporting pleadings, and in the absence of any
valid ground to produce the same at the appeal stage, the
application is rightly rejected. He submits that none of the
documents would support the arguments raised for protection of
possession under Section 53-A of the TP Act.
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24. Learned counsel for the corporation points out that the
common ground taken by these petitioners includes an objection
of institutional bias. However, this aspect is also considered by
the appeal court by relying upon the decision of the Hon'ble
Apex Court in the case of Bibi Batool Jafer Glam Hussein vs.
The Principal Judge, City Civil Court, Bombay 9 and the decision
of Maganlal Chhaganlal (P) Ltd. Vs. Municipal Corporation of
Greater Mumbai and Others 10. Thus, the learned counsel for the
corporation submits that by referring to the well-settled legal
principles, the appeal court rightly confirmed the decision of the
enquiry officer for the eviction of these petitioners. He points out
that the issue relating to the conversion of the premises into an
ownership basis was decided by the Division Bench in the case
of More Jeevan Yashwant and Others. He thus submits that the
issue now cannot be reopened. He submits that the Division
Bench of this court held that the premises occupied by the
petitioners are owned by the corporation and the petitioners had
occupied the same only by way of their employment. Hence,
now they would not be entitled to seek any protection under
Section 53-A of the TP Act.
9 1967 SCC OnLine Bom 121
10 (1974) 2 SCC 402
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25. The issue regarding the one-third retirement benefits
withheld by the corporation is also considered in the decision of
More Jeevan Yashwant and Others, where it is held that the
amount was withheld because the occupants had failed to
vacate the premises. The grounds raised regarding the
entitlement for conversion of the premises allotted in lieu of the
employment into an ownership basis are rejected by the Division
Bench in the decision of More Jeevan Yashwant and Others;
hence, there is no question of novation of the contract for the
purpose of claiming protection under Section 53-A of the TP Act.
He submits that in view of the decision in the case of More
Jeevan Yashwant and Others, thereby holding that the nature of
the premises is of ownership of the corporation, and the
petitioners' occupancy is only by way of employment, there is no
question of applying protection under Section 53-A of the TP
Act. The learned counsel for the respondents, therefore, submits
that the corporation has followed due process as directed by the
Division Bench of this court. None of the documents relied upon
by way of additional evidence would pertain to the applicability of
Section 53A. He submits that the petitioners have neither
pleaded nor made any averment regarding raising a plea of
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protection under Section 53-A. He submits that for the first time,
the petitioners orally argued in the appeal regarding the
applicability of Section 53-A of the TP Act, and the averments
are for the first time taken in these petitions.
26. Learned counsel for the corporation submits that the
decision of the Hon'ble Apex court in the case of Vivek Gawde
and Others, granting liberty for raising the plea of Section 53-A
of the TP Act, cannot be made applicable to the present
petitioners. He submits that after the decision of this court in the
case of More Jeevan Yashwant and Others, the Supreme Court
confirmed the decision on 1st May 2017, and thereafter,
immediately on 3rd May 2017, the occupants approached the
State Government. The minutes of the meeting dated 3 rd May
2017 only record the request of the government for a fresh
survey. Thus, the request / directions recorded in the minutes of
the meeting dated 3rd May 2017 have no co-relation with the
1989 resolution. He points out that the Municipal
Commissioner's letter dated 16th September 2017 in response to
the minutes dated 3rd May 2017 cannot be read to mean that it
was agreed to convert the premises of these petitioners into
ownership basis.
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27. According to the learned counsel for the Corporation,
the appeal court considered all the relevant aspects regarding
the nature of the occupants of these petitioners, as held by the
Division Bench of this Court in the case of More Jeevan
Yashwant and Others. The premises in occupation are not
premises which, even according to the petitioners, were agreed
to be transferred to them on an ownership basis. Even as per
the submissions made on behalf of the petitioners, the premises
agreed to be allotted on an ownership basis are the premises
that were proposed after redevelopment. Hence, there is no
question of applying the protection of Section 53-A of the TP
Act.
28. Learned counsel for the corporation submitted that the
nature of possession and the nature of contract, as argued on
behalf of the occupants, is decided by the Division Bench in the
case of More Jeevan Yashwant and Others, and the same is
confirmed by the Hon'ble Apex Court. Hence, there is no
question of applying the provisions of Section 53-A at this stage.
He submits that filing an application for leading additional
evidence is only an attempt to delay eviction when documents in
the compilation sought to be produced by way of additional
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evidence are after 2017, which only pertains to the requests
made by the State Government for carrying out a survey. Thus,
after the Hon'ble Apex confirmed the decision of this court in the
case of More Jeevan Yashwant and Others, the occupants
rushed to the State Government for some protection. He thus
submits that a direction issued for carrying out a survey cannot
be construed as a ground to seek protection under Section 53-A
of the TP Act. As per directions issued by the Hon'ble Division
Bench of this court in the case of More Jeevan Yashwant and
Others, the corporation has initiated due process as
contemplated under Section 105B of the MMC Act. Hence, at
this stage, there is no question of applying protection under
Section 53-A of the TP Act.
Analysis and Conclusions :
29. I have carefully perused all the papers of the petition,
including the documents sought to be relied upon by way of
additional evidence. On a specific query made to the learned
senior counsel for the petitioners regarding the applications filed
by these petitioners for leading additional evidence, learned
counsel for the petitioners submitted that a common application
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filed in the case of Shri Channabasappa S. Hotanahalli was
treated as a common application in the appeals filed by these
petitioners. Hence, to avoid any confusion this court vide order
dated 25th August 2025 issued necessary directions for
identifying the documents sought to be relied upon by these
petitioners by way of additional evidence and accordingly the
compilation filed with an index dated 4 th September 2025 was
marked as 'X-1' for identification and compilation of index dated
20th August 2025 was marked as 'X-2' for identification. The
petitioners' submissions were accordingly recorded that, except
for the documents in the compilation marked as 'X-1' and 'X-2'
along with the documents with the lists part I, which contains a
copy of SLP No. 13605 of 2017 along with all the annexures filed
in the Hon'ble Apex Court, the petitioners did not rely upon any
other documents. Hence, with the assistance of the respective
counsels for the parties, I have carefully gone through all the
documents sought to be relied upon by the petitioners to support
their submissions on the applicability of the protection under
Section 53-A of the TP Act.
30. The controversy surrounding these petitions centres on
the nature of the occupation and whether the petitioners would
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be entitled to seek protection for continuing with it. Since the
controversy involved in these petitions is already decided by the
Division Bench of this court in the case of More Jeevan
Yashwant and Others and confirmed upto the Hon'ble Apex
Court, it would be relevant for deciding the arguments raised on
behalf of the petitioners in this group of petitions. The Division
Bench in the case of More Jeevan Yashwant and Others dealt
with the claims of ex-employees of the corporation who had
approached this court on the ground that there was a
representation from the Municipal Corporation to the occupants
that their occupancy would be converted on a permanent
tenancy/ownership basis in terms of certain decisions taken by
the Municipal Corporation. Relying upon the various decisions of
the corporation, the ex-employees claimed mandatory directions
to be issued to the Municipal Corporation not to apply the
circular dated 7th October 2010, which directed that the
corporation should release the retirement benefit/dues with
effect from the date of the respective retirement with interest @
18% per annum. The ex-employees and their federation also
claimed directions that the corporation should not evict them
from their respective tenements.
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31. The Division Bench of this Court recorded all the factual
aspects and thus proceeded to decide the petitions by a common
judgment. The Division Bench recorded that the petitioners
proceeded on the footing that the respective tenements occupied
by the petitioners were included by the corporation in the scheme
for permanent house accommodation in the year 1992, and on 25 th
March 1997, the corporation issued a letter to that effect. Since the
scheme was not implemented, the ex-employees filed various
representations, and thus, based on their occupation, they sought
various reliefs for conversion of their tenements into ownership or
permanent tenancy. All the petitions before the Division Bench
pertaining to the five different sites were decided by a common
judgment. All the arguments raised on behalf of the petitioners in
these petitions were categorically raised before the Division Bench,
including the arguments based on the applicability of Sections 64
and 92 of the MMC Act.
32. Though a specific ground as contemplated under Section 53-
A of the TP Act was not raised in the group of petitions, all the
grounds regarding protection of possession, based on the circular
of 1989, were raised and decided by the Division Bench. The
Division Bench also decided the issue regarding the retirement
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benefits withheld by the Corporation. The Division Bench held that
the occupancy of the ex-employees would not create any right, title
or interest in the municipal property, which is public property. It
would be necessary to reproduce the relevant extracts from the
findings recorded by the Division Bench of this Court, which deal
with all the grounds argued in these petitions. The relevant extracts
from the judgment of More Jeevan Yashwant read as under :
"37. For properly appreciating the rival contentions, we must
first clear the factual background. 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
ex-municipal 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.
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38. It is high time that we clarify that those in possession of
public property have no right to continue in their possession
and occupation. The municipal servants must realise, like
others, that they are public servants. The Municipal
Corporation must realise that it is a trustee of the public
property. They do not have authority to dispose of these
properties as if they belong to them exclusively. They are
made over to the municipalities for municipal administration
and governance. Therefore, the local authorities and
Municipal Corporations are as much bound by the mandate of
Article 14 of the Constitution of India, as these employees.
This court cannot perpetuate an illegal act by its writ. Equal
protection of the law postulates that those not entitled to any
relief based on a right cannot continue to insist on the same.
Once a leave and licence arrangement in law does not confer
any right, title and interest in the property, much less of
tenancy, then, we do not see how the Municipal property,
coming in the petitioners' possession during the course of
their services, places them in a different class. They are
comparable with those municipal servants to whom municipal
premises are allotted in lieu of payment of House Rent
Allowance. The House Rent Allowance is paid because those
occupying their own or rented premises should be in a
position to bear the monetary liability. In some cases, the
salary is not enough to meet these expenses and therefore,
such schemes, namely, payment of House Rent Allowance or
grant of housing accommodation in lieu thereof, are proposed
and implemented. These schemes are implemented so as to
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assist the municipal employees and public servants and in
return, it is expected that they render efficient and prompt
services. The municipal services are rendered to fulfill the
mandate of the constitution of India and Sections 61 and 63 of
the MMC Act. We need not highlight as to what are the duties
of the Municipal Corporation and its functions. There is
enough indication in that regard in the MMC Act itself. That
contains both, the obligatory and discretionary duties.
Eventually, all municipal services are rendered for the welfare
and benefit of the residents of the city. The Municipal
Corporations themselves occupy a constitutional status. The
Constitution envisages establishment and incorporation of a
Municipal Corporation so as to ensure better and quality
municipal governance. Given this status, the municipal
employees ought to be aware that if they occupy municipal
properties during the course of their services, then, they are
also obliged to handover these premises on their retirement
or superannuation so that the Municipal Corporation can
utilise them for housing those who have entered the services
or existing employees. Given the shortage of accommodation,
there is a huge waiting list. Hence, we find that the contrary
impression that parties like the petitioners and municipal
authorities entertain needs to be dispelled forthwith. None
can, therefore, take a decision to handover municipal
properties to anybody save and except in accordance with
law. No provision has been brought to our notice in the MMC
Act, which obliges the Municipal Corporation to make a
provision for housing its retired employees. Therefore, there is
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no statutory right, which can be claimed in such matters.
39. The right that has been claimed and sought to be
enforced is based on a decision of the Improvement
Committee. The Improvement Committee is stated to have
considered and sympathetically the request of certain types of
occupants of Municipal Properties. We have been shown
several documents in that regard and from the paper book. It
has been pointed out that though the allotment is made on a
specific condition that the allottee is in municipal service and
therefore, he would be required to comply with certain
conditions, including executing an agreement and
undertaking to handover the premises. Yet, in 1966, some
association was informed by the then Deputy Municipal
Commissioner (Improvements) that the request of the
employees, to continue in occupation as tenants on their
retirement, can be accepted. Reliance is placed on the letter
dated 24th June, 1966, where under, one administrative
officer (Estates) has informed the Secretary of the municipal
employees' association that this Deputy Municipal
Commissioner (Improvement) has approved their request
subject to condition that they pay standard rent and furnish
fresh agreement if they desire to continue to remain in
occupation of their tenements. In this letter, we do not see
any decision of the Municipal Corporation. Then, what is
pressed into service is a resolution and which was passed in
the Municipal Corporation's meeting held on 1st September,
1989. Resolution No. 343 dated 1st September, 1989 refers
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to the letters of the Commissioner dated 4th July, 1989 and
7th August, 1989. That letter refers to the plight of the
municipal servants, who have been rendered homeless
because of certain developments. That specifically refers to
the condition of the municipal tenements as well. Therefore,
Barvenagar (Ghatkopar), Mithanagar (Goregaon) and Deonar
Municipal Colonies and Parksite (Vikhroli) contain structures
and singly storeyed. They were granted on leave and licence
basis. However, there is a conversion proposed by the
Municipal Commissioner and on ownership basis. Therefore,
the recommendation of the Municipal Commissioner was
placed before the Municipal Corporation's General Body and
that General Body resolved that these
proposals/recommendations of the Municipal Commissioner
can be temporarily approved provided the co-operative
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. The General Body has
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considered them and resolved to accept them provided
fulfillment of certain terms and conditions and satisfaction of
the same by the Municipal Commissioner. In that event, the
House may consider approving the same. Beyond this, we do
not read anything, much less a vested right, which can be
claimed by the petitioners to continue in occupation and
possession. 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 the relevant provisions under Order XLI
Rule 27 of the CPC. To by law. If we agree to the request of
the petitioner, none would ever vacate staff or service
quarters, but retain them even after their retirement. Those in
public service and fulfilling the criteria of a public servant
would then have to wait for allotment of premises in the event
they require them. We cannot direct a Municipal Corporation
and particularly the Municipal Corporation of Greater Mumbai,
which has a work force of more than one lakh employees, to
grant the permanent occupancies and in the form requested.
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We have found from the record that there is no dispute that
there is a waiting list of employees. There is no dispute that it
becomes difficult for the Municipal Corporation to house even
the staff members who render emergency services. Thus,
those working and serving in the Fire brigade, Water Works
and hospitals, whose presence is required by the
establishment 24/7 have to be housed at distant
accommodations. In that event, their availability is a huge
question mark and not assured. Therefore, when their
presence is required to meet an emergency, then, all the
more such request as made by the petitioners cannot be
granted. Once the municipal premises have not been allotted
to them independent of their identity as municipal servants,
then, all the more such reliefs as are claimed in these
petitions cannot be granted.
40. Mr. Rupawate would submit that the issue is not covered
by a Single Judge Bench decision of this court, in Writ Petition
No. 110 of 1983, decided on 5 th July, 1990 rendered by
Hon'ble Mr.Justice M. L. Pendse as his Lordship then was. He
would submit that much water has flown after this decision.
We do not see any substance in this contention either. Mr.
Rupawate placed reliance on a letter, which has been
addressed by the Municipal Commissioner of Greater Mumbai
to the Government. We have carefully perused that letter. That
letter highlights what we have been shown from the records of
the present petitions. The Municipal Corporation has placed
before us the entire compilation of documents, based on
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which we must consider these cases. There are as many as
five compilations placed before us by the counsel appearing
for the Municipal Corporation. These compilations contain
policies and relevant circulars. We have carefully considered a
policy and which has been stated to be in force, which is for
allotment of staff/service quarters. Rather, they are the rules of
allotment. It is the entitlement of employees, who have put in
10 years service and their eligibility for allotment of the staff
quarters, which is placed in the forefront, but the allotment is
conditional. The allotment will be on the basis of seniority in
service, taking into account the date of joining the service. The
allottee should execute a leave and licence agreement.
Pausing here, it is apparent that the allotment of municipal
properties or staff quarters to municipal servants is under
these rules. The manner in which the allotment is made is set
out and that envisages a leave and licence agreement as per
the instructions prevailing at the time of the agreement. That
fortifies the position that the licencee has no right, title and
interest in the premises. The licence fees have to be paid by
him. He would render himself liable to departmental action
under the Municipal Service (Conduct and Discipline) Rules
for violation of the conditions of allotment. The allotment is of
a residential tenement. It is for residence of the employee and
his/her family members. Their names have to be listed in the
leave and licence agreement. Thus, this is a residential
accommodation and granted for residence of the employee
and his/her authorized family members. The terms and
conditions indicate as to how possession of this tenement
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shall be immediately surrendered to the concerned Ward
Officer on ceasing to be a municipal employee. Thus, it is not
as if post retirement until his/her obtaining a private
accommodation that he can retain the municipal premises. We
do not see any change in this policy. Rather from the rules,
though they were revised on 19th March, 2002, what we have
noted is, by passage of time, certain additional terms and
conditions have been incorporated and to take care of those
who indulge in irregularities while in possession of these
tenements. By passage of time, the municipal administration
has learnt a lesson and is by now wise enough to realise that
any municipal servant, while in service, unfortunately expires
or is dead, his/her heir or legal representative is not entitled to
continue and reside in the premises. They would have to
vacate the municipal premises within two months of the death
of the employee. It was found that on sympathetic grounds,
extensions are obtained and thereafter, the vacant
possession thereof is not handed over. It is unfortunate that
the Municipal Corporation had to insert a rule that if the
husband and wife both work in the Department, then, they
would be entitled to only one tenement and allotment may not
be of more than one or two tenements, one in the name of
husband and another in the name of wife. The circulars of the
Municipal Corporation and which have been compiled,
indicate as to how the applications have to be made. One
such circular dated 2nd July, 1990 and subsequent to that of
16th October, 2008, 30th October, 2010 and 7thSeptember,
2010 are highlighted by Mr. Sakhare, because he would
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submit and rightly that there is increasing trend of employees
not vacating the staff quarters or to obtain peaceful
possession of the municipal tenements. The circulars
empower the Municipal Commissioner and higher authorities
therefore to withhold the retrial benefits of those retirees who
are continuing to occupy the tenements even after the
permissible period. We would advert to this aspect a little later.
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. What we have further noted is that
there are resolutions passed from time to time. On 10 th
August, 1989, the Improvement Committee recommended
that the Municipal Commissioner be requested to allot
premises on ownership basis at Barvenagar, Mithanagar,
Parksite and Deonar, as per the decisions contained in the
Municipal Commissioner's letters dated 4th July, 1989 and 7 th
August, 1989. These letters set out the special circumstances
for such a decision and also to allot some of the tenements to
project affected persons. The Municipal Corporation approved
this recommendation of the Municipal Commissioner on 1 st
September, 1989, but mentioning clearly that these are
special factors and circumstances. It had not passed a firm
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resolution nor has taken 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. It
was not possible to pick up some tenements in occupation of
retired persons and conferring on them alone the benefit of
permanent occupancy or tenancy. We have already referred
to the Commissioner's letter. The Commissioner's letter, copy
of which is placed before us in this compilation, indicates as to
how there is acute shortage of accommodation. He has, in his
detailed letter addressed to the Government, pointed out that
all these persons while entering the municipal service have
undertaken to vacate the municipal tenements on ceasing to
be in municipal services. Such undertakings and agreements
are in force. These agreements have certain sanctity and a
legal efficacy. 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
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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 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. These nine important points,
which he has highlighted in a detailed letter addressed to the
State Government may have been noticed, but no action one
way or the other has been taken thereon. However, based on
that, no right can be claimed by the petitioners. The State
Government is neither accepting the stand of the Municipal
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Commissioner set out in his letter dated 20 th December, 2007
nor has rejected it. ....................."
emphasis applied by me
33. The Division Bench also examined the arguments based
on Sections 64 and 92 of the MMC Act. The relevant extract of
the findings recorded in paragraph 41 reads as under:
"We do not see how this section and with the
amendments thereto would alter the legal position.
Rather, if something that requires a specific approval
of the Municipal Corporation, the Commissioner
cannot do that on his own. Even if there is a
resolution of the Municipal Corporation or a decision
taken by it, if that decision is found to be violating the
mandate of law, then, the Commissioner can move
the State Government and ask for it being quashed
and set aside. Merely because the State Government
has not acted or taken any decision, that does not
mean that the Commissioner is bound by the
Corporation's decision and which in any event is not
borne out by the record. As held above, there is no
decision or order of the Municipal Corporation
accepting the petitioners' request to convert staff
quarters in their occupation and possession into
permanent occupancies. Similarly, as is clear from
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Section 92 of the MMC Act, a municipal property,
with respect to its disposal, is governed by the same.
It is the discretion of the Commissioner and as is
evident from clauses (a) and (b) of Section 92.
Similarly, it is with the sanction of the Municipal
Corporation, the Commissioner may lease, sell or
otherwise convey the immovable property belonging
to the Corporation. After clause (d) appears clause
(dd). Thus, what is clear from these provisions is that
a municipal property cannot be disposed of at the
sweet will of the Municipal Commissioner/
Corporation."
emphasis applied by me
34. Thus, it is clear that the Division Bench of this court
decided the nature of the property, including the ownership of the
corporation and the nature of the occupancy of these petitioners.
The Division Bench held that the public property is not in the
exclusive domain of the Municipal Administrator, and it is public
property. Thus, a commissioner or corporation cannot be called
upon to betray this trust which is reposed in them. Hence, the
public trust is paramount in the discharge of public duties. Hence,
the municipal corporation cannot be directed to dispose of public
property, and any decision to do so would run counter to the
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provisions and mandates of the MMC Act. Thus, in view of these
findings, it was directed that the gratuity shall be payable to an
employee on termination of employment. Hence, it was held that
the amount which were withheld would not amount to any
obligation on the part of the corporation, and the issue regarding
the payment of gratuity and the amounts that were withheld was
discussed in detail by the Division Bench. It was thus held that in
the event the occupants were ready and willing to hand over the
physical possession of the premises within a specific period,
recoveries threatened against them by the corporation would not
come into effect. Hence, it was directed that no further directions
would be needed, and the balance payable amount would be
released if the petitioners were willing to vacate the premises.
35. Since none of the occupants had shown willingness to give
such an undertaking, the Division Bench passed conditional
directions. The relevant directions contained in paragraphs 53
and 54 read as under :
"53. 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
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Corporation shall 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.
54. However, we have seen a very peculiar feature of
this case, Some of the petitioners have retired long time
back. Some of these petitions have been filed and are
pending in this court for more than five years. In some
cases, we have found that this is a successive round of
the litigation. This court has also passed some orders
for protecting possession of the occupants. We would,
therefore, direct the Municipal Corporation not to take
into consideration the pendency of these petitions and
the period during which the interim order was in force,
so as to deduct and adjust the municipal dues in the
aforesaid manner. To that extent, the Municipal
Corporation stands restrained from enforcing its
circulars and decisions withholding or seeking to adjust
the retiral dues."
emphasis applied by me
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36. It is thus clear that the Division Bench decided all the grounds
regarding the nature of the occupation. The Division Bench referred
to the increasing tendency to hold on to the government property.
The Division Bench in paragraph 57 held that "The Hon'ble
Supreme Court has commented upon the increasing tendency to
hold on to the Government property and termed that there is a
mushroom growth of unauthorised occupation of Government
premises in almost all parts of the country in flagrant violation of the
rules prevailing in the civilised society, which is detrimental to the
interest of a large number of Government servants, who have been
waiting for years together for allotment of Government premises."
With these observations, the Division Bench rejected the
petitioners' plea for seeking conversion of the respective premises
given in lieu of their employment on an ownership basis.
37. As far as the arguments made for the protection of possession
by applying Section 53-A of the TP Act are concerned, it is
necessary to deal with the arguments by referring to the well-
settled legal principles for the applicability of Section 53-A of the TP
Act. Section 53-A of the TP Act reads as under :
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"53-A. Part performance.--Where any person contracts
to transfer for consideration any immovable property by
writing signed by him or on his behalf from which the
terms necessary to constitute the transfer can be
ascertained with reasonable certainty,
and the transferee has, in part performance of the
contract, taken possession of the property or any part
thereof, or the transferee, being already in possession,
continues in possession in part performance of the
contract and has done some act in furtherance of the
contract,
and the transferee has performed or is willing to
perform his part of the contract,
then, notwithstanding that or, where there is an
instrument of transfer, that the transfer has not been
completed in the manner prescribed therefor by the
law for the time being in force, the transferor or any
person claiming under him shall be debarred from
enforcing against the transferee and persons claiming
under him any right in respect of the property of which
the transferee has taken or continued in possession,
other than a right expressly provided by the terms of
the contract:
Provided that nothing in this section shall affect the
rights of a transferee for consideration who has no
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notice of the contract or of the part performance
thereof."
38. The protection under Section 53-A of the TP Act requires
the basic principles of a written agreement and the possession is in
part performance of the contract. So far as the facts of the present
case are concerned, admittedly, there is no written contract
between the petitioners and the corporation. In fact, the Division
Bench in the case of More Jeevan Yashwant and Others, in
categorical terms, held that the premises in question are public
property and the corporation has no authority to allot the same on
an ownership basis. The observations of the Hon'ble Apex Court
relied upon by the petitioners in the recent decision of Vivek Gawde
and Others are with reference to the occupants of the location at
Mithanagar, Goregaon. The Hon'ble Apex Court in paragraph 26
observed as under:
"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.
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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."
39. The Hon'ble Apex Court held that if at all the respondent in
the said cases raised a plea of Section 53-A before the enquiry
officer, the same shall be decided bearing in mind that such a point
is not in the nature of a demurrer which could be raised for nipping
the proceedings in the bud for lack of procedure. The present case
deals with the location at Parksite, Vikhroli. However, the grounds
raised by all these occupants from these locations have already
been decided by the Enquiry Officer. The findings recorded in the
present case are consistent with the findings recorded in the
decision of More Jeevan Yashwant and Others. Hence, the liberty
granted by the Hon'ble Apex Court is with reference to the grounds
raised in the case of Vivek Gawde and Others where this court had
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framed points for consideration to be decided by the Enquiry Officer
in the pending enquiry. So far as the present petitions are
concerned, the appeal court has in detail discussed all the
documents relied upon by way of additional evidence. Though all
the petitioners have never filed any separate application for leading
additional evidence, all the documents are referred to and relied
upon by the appeal court. For the sake of clarity this court has
marked compilation of documents as 'X-1' and 'X-2' and the third
compilation which contained the special leave petition filed before
the Hon'ble Apex Court. The decision by the appeal court examines
all the documents relied upon by the petitioners with reference to
the protection under Section 53-A.
40. The appeal court held that the essential condition for part-
performance of the contract, namely, taking possession of the
property, is absent in the facts of the present case. The
consideration for finalisation of the terms is with reference to the
letters issued by the society and the recommendation by the
Corporation. The concept of the redevelopment scheme and
Regulation No. 33(7) was also considered from 1966 to 1989 and
from 1989 to 2007. The appeal court held that the scheme was
never finalised and there was no material on record that the State
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Government had granted any approval for granting a lease to the
co-operative societies. Even after the decision of the Hon'ble Apex
Court in the year 2017 confirming the decision of the Division
Bench in the case of More Jeevan Yashwant and Others there was
no valid or legal contract as contemplated under Section 53-A to
apply any protection as argued on behalf of the petitioners. The
exchange of the pre-proposal and preparation of the conditions that
would be required for compliance of the proposal was not on
record. Hence, the situation post 2017 was also considered by the
appeal court. The appeal court therefore rightly held that in view of
the decision of the Division Bench in the case of More Jeevan
Yashwant and Others as confirmed upto the Apex Court and the
documents on record does not contemplate any protection under
Section 53-A of the TP Act.
41. The Hon'ble Apex Court in the decision of Sudhir Bhatia held
that it is sufficient for the party seeking permission to produce
additional evidence that it establishes that such evidence could not,
after the exercise of due diligence, be produced at the time when
the decree appeal against was passed. This court, in the decision
of The Premier Automobiles Ltd. held that the intention of the
legislature appears to be to give an additional opportunity to the
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parties to produce the evidence which was not produced at the trial
stage for the reasons mentioned in clause (aa). This Court in the
decision of Hasanate Fidayyiah held that the exercise of the
jurisdiction by the appellate court to permit production of additional
evidence is to able to pronounce the judgment based on the record
of the trial court as it was, and it might still consider that in the
interest of justice, something which remained obscure should be
filled up so that it can pronounce the judgment in a more
satisfactory manner.
42. In the decision relied upon by the learned counsel for the
petitioners in the case of T S Karthikeya Mudaliar, the High Court at
Madras held that Section 53-A of the TP Act furnishes a statutory
defence to a person who has no registered title if he can prove a
written and signed contract in his favour and some action on his
part in part performance of that contract.
43. The Hon'ble Apex Court in the decision of Ghanshyam held
that the buyer, having performed his part of the contract and
lawfully in possession, acquires possessory title, which is liable to
be protected in view of Section 53-A of the TP Act. The Hon'ble
Apex Court in the decision of Maneklal Mansukhbhai held that
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section 53-A of the TP Act, furnishes a statutory defence to a
person who has no registered title deed in his favour to maintain his
possession, if he can prove a written and signed contract in his
favour and some action on his part in part performance of that
contract.
44. The Hon'ble Apex Court, in the decision of Bibi Batool Jafer
Gulam Hussein, while upholding the validity of Section 105B of the
MMC Act, held that there has been no lack of guidance, that is,
there exist principles for guidance, and those principles would
guide the authority concerned, and there would be no
discrimination or violation of Article 14 of the Constitution of India.
In the decision of Maganlal Chhaganlal (P) Ltd., the Hon'ble Apex
Court upheld the legality of the proceedings taken under Chapter
V-A of the MMC Act and the Bombay Government Premises
Eviction Act 1955.
45. In the present case, the findings recorded by the enquiry
officer were also considered in detail by the appeal court. The
occupancy of the petitioners, therefore, was confirmed as based on
the occupancy in pursuance of the respective employment. Hence,
the termination of the occupancy by the corporation was held to be
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legal and valid, and the petitioners' occupation is held as
unauthorised.
46. The reasons recorded by the appeal court are based on the
findings recorded by the Division Bench of this court in the case of
More Jeevan Yashwant and Others as confirmed by the Apex
Court. None of the documents relied upon by the petitioners by
way of additional evidence supports the plea of protection of
possession under Section 53-A of the TP Act. The reasons
recorded by the appeal court are therefore consistent with the view
taken by the Division Bench in the case of More Jeevan Yashwant
and Others, as confirmed by the Apex Court. The nature of the
structure involved in this litigation is held as public property. The
petitioners' occupancy is held only in lieu of employment. Thus, no
different view can be taken in these petitions. None of the
parameters contemplated under Section 53-A of the TP Act exist.
There is neither any written contract to transfer the structures nor
any terms necessary to constitute the transfer that can be
ascertained with reasonable certainty. The findings recorded by the
Division Bench, holding that the petitioners' possession is in lieu of
the employment and that there existed no contract to transfer the
structures on a permanent basis, are confirmed by the Hon'ble
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Apex Court. Hence, in the absence of any contract to transfer the
structures on a permanent basis, the petitioners' possession cannot
be held as in part performance of any contract to transfer the
structures. The source of possession and the nature of continued
possesion is a relevant factor to consider the applicability of
Section 53-A. Hence, there is no question of applying Section 53-A
of the TP Act to protect the possession of these petitioners. There
is no substance in the arguments made by the learned counsel for
the petitioners on novation of contract. In view of the nature of
occupancy held in lieu of employment, there is no question of any
novation of contract. In view of the peculiar facts of the case as
discussed in the preceeding paragraphs, I find substance in the
arguments of the learned counsel for the corporation that filing of
application to lead additional evidence and raise a plea of Section
53-A and seek an order of remand is an attempt to delay the
implementation of the eviction order and continue to illegally
occupy the structures.
47. It is a well-established legal principle that no evidence would
be relevant in the absence of any supporting pleadings. In the
present case, the documents sought to be relied upon by way of
additional evidence are not supported by any pleadings. However,
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the Appellate Court has considered all the documents and held that
none of the documents support the plea of protection of possession
as contemplated under Section 53-A of the TP Act. This court has
also considered all the documents. I see no reason to take a
different view from the view expressed by the Appeal Court. Hence,
the Appeal Court has rightly rejected the application under Order
XLI Rule 27 of the CPC, as there is no ground made out as
contemplated under the said provision.
48. The Appellate Court has passed a well-reasoned judgment
after considering all the relevant factual aspects as well as the well-
established legal position for applying the protection under Section
53-A of the TP Act. I do not find any illegality or perversity in the
reasons recorded in the impugned judgments. There is no ground
to exercise the discretionary jurisdiction under Article 227 of the
Constitution of India for interfering with the impugned judgments.
49. For the reasons recorded above, the petitions are
dismissed.
[GAURI GODSE, J.]
Digitally
signed by
RAJESHWARI
RAJESHWARI RAMESH
RAMESH PILLAI
PILLAI Date:
2025.09.16
05:48:05
+0200
