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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
WRIT PETITION NO. 1018 OF 2011
WITH
WRIT PETITION NO. 1028 OF 2011
WITH
WRIT PETITION NO. 1029 OF 2011
WITH
WRIT PETITION NO. 1040 OF 2011
WITH
WRIT PETITION NO. 1041 OF 2011
WITH
WRIT PETITION NO. 1042 OF 2011
WRIT PETITION NO. 1018 OF 2011
Dashrath s/o. Ambadas Pujari, .. Petitioner
Age : 42 years, (Original tenant/
Occupation : Business, Non-Applicant/
R/o. Tuljapur, Taluka : Tuljapur, Appellant in
District : Osmanabad. R.C.A.)
versus
1. The Municipal Council,
Tuljapur, through its
Chief Officer,
Taluka : Tuljapur,
District : Osmanabad.
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2. The State of Maharashtra, .. Respondents
through the Resident Deputy (No.1 - Original
Collector, Osmanabad, Landlord/Applicant/
Taluka & District : Osmanabad. Respondent in R.C.A.)
.......................
WRIT PETITION NO. 1028 OF 2011
Madhukar s/o. Dattatraya Patil, .. Petitioner
Age : 66 years, (Original tenant/
Occupation : Business,
R/o. Tuljapur, Taluka : Tuljapur,
Non-Applicant/
Appellant in
District : Osmanabad. R.C.A.)
versus
1. The Municipal Council,
Tuljapur, through its
Chief Officer,
Taluka : Tuljapur,
District : Osmanabad.
2. The State of Maharashtra, .. Respondents
through the Resident Deputy (No.1 - Original
Collector, Osmanabad, Landlord/Applicant/
Taluka & District : Osmanabad. Respondent in R.C.A.)
.......................
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WRIT PETITION NO. 1029 OF 2011
Nilesh s/o. Narayan Thakkar, .. Petitioner
Age : 34 years, (Original tenant/
Occupation : Business, Non-Applicant/
R/o. Tuljapur, Taluka : Tuljapur, Appellant in
District : Osmanabad. R.C.A.)
versus
1. The Municipal Council,
Tuljapur, through its
Chief Officer,
Taluka : Tuljapur,
District : Osmanabad.
2. The State of Maharashtra, .. Respondents
through the Resident Deputy (No.1 - Original
Collector, Osmanabad, Landlord/Applicant/
Taluka & District : Osmanabad. Respondent in R.C.A.)
.......................
WRIT PETITION NO. 1040 OF 2011
Sunil s/o. Nekiram Agrawal, .. Petitioner
Age : 47 years, (Original tenant/
Occupation : Business, Non-Applicant/
R/o. Tuljapur, Taluka : Tuljapur, Appellant in
District : Osmanabad. R.C.A.)
versus
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1. The Municipal Council,
Tuljapur, through its
Chief Officer,
Taluka : Tuljapur,
District : Osmanabad.
2. The State of Maharashtra, .. Respondents
through the Resident Deputy (No.1 - Original
Collector, Osmanabad, Landlord/Applicant/
Taluka & District : Osmanabad. Respondent in R.C.A.)
.......................
WRIT PETITION NO. 1041 OF 2011
Shyam s/o. Yashwant Khatal, .. Petitioner
Age : 49 years, (Original tenant/
Occupation : Business, Non-applicant/
R/o. Tuljapur, Taluka : Tuljapur, Appellant in
District : Osmanabad. R.C.A.)
versus
1. The Municipal Council,
Tuljapur, through its
Chief Officer,
Taluka : Tuljapur,
District : Osmanabad.
2. The State of Maharashtra, .. Respondents
through the Resident Deputy (No.1 - Original
Collector, Osmanabad, Landlord/Applicant/
Taluka & District : Osmanabad. Respondent in R.C.A.)
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.......................
WRIT PETITION NO. 1042 OF 2011
Gangadhar s/o. Dattatraya Patil, .. Petitioner
Age : 59 years, (Original tenant/
Occupation : Business, Non-Applicant/
R/o. Tuljapur, Taluka : Tuljapur, Appellant in
District : Osmanabad. R.C.A.)
versus
1. The Municipal Council,
Tuljapur, through its
Chief Officer,
Taluka : Tuljapur,
District : Osmanabad.
2. The State of Maharashtra, .. Respondents
through the Resident Deputy (No.1 - Original
Collector, Osmanabad, Landlord/Applicant/
Taluka & District : Osmanabad. Respondent in R.C.A.)
.......................
Mr. Rajendra S. Deshmukh, Advocate, for
petitioners in all the petitions.
Mr. K.K. Kulkarni, Advocate, for respondent
no.1 in all the petitions.
Mr. S.K. Tambe, Assistant Government Pleader,
for respondent no.1 in all the petitions.
*************
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CORAM : B.P. DHARMADHIKARI, J.
DATE : 25TH FEBRUARY 2011
ORAL JUDGMENT :
1. Rule. Rule is made returnable forthwith. Taken up
for final hearing by consent of parties.
2. The Municipal Council moved the competent
authority under the Bombay Government Premises (Eviction)
Act, 1955, and sought eviction of respective petitioner
contending that he was in unauthorized possession, mentioning
that he was inducted initially in 1995 either by oral or written
agreement and there was no subsequent agreement either oral or
written. They also pointed out that on 15-9-2009, petitioners
executed an undertaking and accepted that there was no
agreement after 1995. The application was opposed by the
present petitioners who raised various defences and ultimately
the application was allowed. This order was then questioned in
statutory appeal under Section 7 by the present petitioners
before District Court at Osmanabad. Learned District Judge-4,
Osmanabad, has vide judgment dated 18th January 2011,
dismissed those appeals.
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3. Adv. Mr. R.S. Deshmukh, for the petitioners, has
contended that burden was upon respondent / Municipal Council
to establish alleged unauthorized possession of the petitioners
and the respondent did not enter into witness box or did not
produce any documents. He states that even up to 1998, rent
was being regularly accepted from the petitioners without any
objections and when petitioners requested for production of
certain documents from the Municipal Council to show
authorized nature of possession, the Municipal Council even did
not produce those documents. He has invited attention to
judgment of this Court reported at 2009(1) ABR (NOC) 31
(BOM.) (Aurangabad Bench), in the case of Suhash Vishwanath
Kolapkar Vs. Assistant Collector, Ahmednagar & another, to
urge that the competent authority, as also, appellate authority
have not considered the challenge as raised and reasons
recorded are also not in accordance with law. He also points out
that the respondent / Municipal Council was under obligation to
lead evidence and to produce material and in the absence
thereof, their application needed rejection. He is relying upon
judgment of Hon. Apex Court reported at AIR 2008 SC 876, in
the case of New India Assurance Co. Ltd. Vs. Nusli Neville
Wadia & another, particularly paragraph 48, to substantiate this.
The judgment delivered by me at Nagpur, reported at 2006(2)
Bom.C.R. 795, in the case of State of Maharashtra Vs. Ramu
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Motiram Motwani & another, is also relied upon to substantiate
this contention. Various earlier orders passed by Civil Courts in
the matter protecting possession of the petitioners, withdrawal
of an appeal filed under Order XLIII Rule 1R of the Code of
Civil Procedure, 1908, by petitioners in one such matter is also
pressed into service.
4. Adv. Mr. K.K. Kulkarni, for respondent no.1 /
Municipal Council, on the other hand, has urged that both the
authorities have taken correct view of the controversy. He has
invited attention to consideration in this respect by the appellate
court. He has relied upon judgment delivered by me at Nagpur,
reported at 2007(3) AIR Bom. R. 155, in the case of Municipal
Council, Pusad, through its Chief Officer Vs. Kundanlal
Mohanlal Jaiswal & others, to argue that the possession of
petitioners cannot be treated as legal in any case. Lastly, the
undertaking given by petitioners on 15-9-2009 is also relied
upon to show that such challenge at their instance is not
maintainable.
5. Learned AGP Mr. Tambe, for respondent no.2, has
supported the impugned order.
6. The facts clearly show that the Municipal Council
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pleaded that in 1995 there was either oral or written agreement
and petitioners came to be inducted in the municipal premises.
There is no further agreement thereafter. The petitioners have
continued to pay the rent every month and Municipal Council
has continued to accept it. On one or two occasions, because of
apprehended forcible dispossession, petitioners filed Civil Suits
and Civil Court also protected their possession. The petitioners
have, in this background, on 15-9-2009, executed an
undertaking and that undertaking specifically mentions that in
1995, the shop block was given to him for a period of 3 years on
rent. Thereafter, till date i.e. till 15-9-2009, there is no
agreement in relation thereto between parties. The petitioner
has further stated that he has withdrawn Regular Civil Suit No.
196/2009 filed by him against the Municipal Council. In
paragraph 3, he has given no objection to allotment of said shop
block in accordance with provisions of Section 92 of the
Maharashtra (Municipal Councils), (Nagar Panchayats) and
Industrial Townships Act, 1965 (For short, “1965 Act”) and the
Rules for disposal of immovable properties framed in 1983 (For
short, “1983 Rules”) under the said Act. This paragraph 3
makes a reference to provisions of Section 92 of 1965 Act. In
paragraph 4, he has further stated that if Municipal Council is
unable to allot it in accordance with law till March 2010, the
same should be allotted to him in accordance with the
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provisions of Section 92 of 1965 Act and provisions of 1983
Rules.
7. The respondent no.1 being Municipal Council, is an
artificial person and its rights to enter into such transactions are,
therefore, as stipulated in Section 92 of 1965 Act. The
Municipal Council cannot be claimed to have done something in
violation of Section 92, nor petitioners before this Court urge
that the respondent no.1 / Municipal Council has entered into
any agreement with them which violates that provision. The
situation was required to be considered by me in the judgment
reported in the case of Municipal Council, Pusad, through its
Chief Officer Vs. Kundanlal Mohanlal Jaiswal & others (supra)
and that judgment clearly covers this controversy.
8. Section 92 of 1965 Act deals with transfer of
municipal property. Its Sub-Section 1 restrains Municipal
Council from transferring any of its immovable property
without sanction of the State Government. The Municipal
Council has to forward a proposal for such transfer accompanied
by resolution of Municipal Council and that resolution has to be
passed by not less than two-thirds of total number of Councilors
and it cannot be inconsistent with Rules made in this behalf by
the State Government. Sub-Section 3 permits Municipal
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Council to lease its immovable property for a period not
exceeding three years. But then such lessee is not permitted to
make any permanent constructions on such immovable property.
Such lease can be further renewed by the Municipal Council
beyond the period of three years. But then, total period of any
lease cannot exceed nine years. The lease cannot be granted or
renewed unless supported by resolution passed at a meeting of
the Municipal Council.
9.
The undertaking by the petitioners show that in 1995,
they were inducted for a period of three years. Facts to examine
the validity or otherwise of that initial exercise are not pleaded
and are not relevant at this stage as they have expressly accepted
that after 1995, there is no other agreement between parties in
relation to suit premises. The outer limit of 9 years has expired
in 2004 itself. Hence after 1998, the possession of petitioners is
not authorized in the light of provisions of 1965 Act or then,
1983 Rules framed thereunder.
10. The judgment delivered by me at Nagpur, in the case
of State of Maharashtra Vs. Ramu Motiram Motwani &
another (supra), considers altogether different contention. The
State of Maharashtra, petitioner therein, was contending that
“Panthala” was an encroachment within premises of R.T.O.
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office and the occupant was claiming to be tenant of Credit
Cooperative Society of employees of R.T.O. and he had filed a
Civil Suit to protect his rights which was pending. In that
background, provisions of Section 4(2) of the Bombay
Government Premises (Eviction) Act, 1955, are looked into and
interpreted. This judgment has no relevance in the present facts.
11. The other judgment of learned Single Judge of this
Court reported in the case of Suhash Vishwanath Kolapkar Vs.
Assistant Collector, Ahmednagar & another (supra) considers
the issue of absence of reasons and this Court has found that the
said authority mentioned under Section 4 of the Bombay
Government Premises (Eviction) Act, being quasi judicial
authority, is duty bound to observe principles of natural justice
and give reasonable opportunity to parties and then deal with
issues in accordance with law. Paragraph 19 in this background
records that mere hearing at length by the appellate authority
(District Court) is not sufficient and the same is not sufficient to
cure absence of reasons in the order passed by the competent
authority. The emphasis is on proper appreciation by competent
authority first and then evaluation of that exercise by the District
Court as appellate authority. Again, this ruling is not relevant
here.
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12. In the case of New India Assurance Co. Ltd. Vs.
Nusli Neville Wadia & another (supra), in paragraph 48, on
which reliance has been placed by learned Counsel for the
petitioners, the Hon. Apex Court has observed that the body
filing application before competent authority under such
enactment has to lead appropriate evidence. Facts in present
matter show that said burden is already discharged. Moreover,
here, as the undertaking given on 15-9-2009 itself is sufficient to
hold that possession of petitioners is unauthorized and has been
accordingly relied upon by the District Court to arrive at that
conclusion, I do not see any jurisdictional error or perversity. I
do not find any merits in the petitions.
13. In the result, the petitions are dismissed. Rule is
discharged. No costs.
( B.P. DHARMADHIKARI )
JUDGE
…………………….
bgp/1018wpetc
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