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2021 DIGILAW 233 (BOM)

Kiran Kumari v. Union Of India

2021-02-03

NITIN W.SAMBRE

body2021
JUDGMENT 1. Petition raises challenge to the order dated 25/2/2020 passed by the Bombay City Civil Court in Misc. Appeal No. 167 of 2019 at the behest of the Petitioner wherein order of eviction passed under Section 5 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as "the said Act" for the sake of brevity) came to be confirmed. 2. The facts necessary for deciding the present Petition are as under:- 3. According to the Petitioner, by virtue of an agreement dated 14/5/1973, she was permitted to run Hindustan Petroleum Gas Agency at Shop T-19/19 in Regimental Shop in old Navy Nagar, Colaba, Mumbai (hereinafter referred to as "shop" for the sake of brevity). It is the case of the Petitioner that leave and license agreement was continued from time to time and the said period was to come to an end on 30/4/2019. The Respondents were in need of the said area as they intend to develop integrated multi-utility complex. Hence, eviction of the Petitioner was sought and notice was served on the Petitioner under Section 4 of the said Act. 4. After hearing the Petitioner, Respondent/Estate Officer passed the order impugned dated 28/10/2019 in exercise of powers under sub-section (1) of Section 5 of the said Act, thereby ordering eviction of the Petitioner and all other persons claiming through her to be in occupation of the scheduled premises to be vacated within 15 days from the date of publication of the order of eviction. The said order of eviction came to be challenged in an appeal being Misc. Appeal No. 167 of 2019 which also came to be dismissed on 25/2/2020. As such, this Petition. 5. Mr. Tiwari, learned Counsel appearing on behalf of the Petitioner would invite attention of this Court to the stand of the Petitioner as was taken since inception of the eviction proceedings i.e. Petitioner having regard to her longstanding possession over the scheduled property be granted time of two years to surrender the same. Part of the pleadings in the order of Estate Officer passed on 28/10/2019 in paras 6 and 7 so also other pleadings are sought to be relied on so as to submit that from the day one, there is prayer of the Petitioner for grant of breathing period for surrendering the scheduled premises. Part of the pleadings in the order of Estate Officer passed on 28/10/2019 in paras 6 and 7 so also other pleadings are sought to be relied on so as to submit that from the day one, there is prayer of the Petitioner for grant of breathing period for surrendering the scheduled premises. The learned Counsel for the Petitioner then would invite attention of this Court to the advance age of the Petitioner and further claim that the Petitioner is catering about four thousand and odd customers in the very same area and eviction of the Petitioner will render those customers unserved which will adversely reflect on the business of the Petitioner. It is also prayed that some breathing period be granted so as to make an alternate arrangements. 6. Mr. Tiwari then would urge that cause for which eviction is sought is far away from the ground realities as the property is not required by the Respondents for any use much less for the use as has been claimed i.e. development of integrated multi-utility complex. By inviting attention of this Court to the provisions of the said Act, he would urge that having regard to pandemic situation Court should show indulgence thereby restraining the Respondents from evicting the Petitioner under the provisions of the said Act, as the Petitioner is ready and willing to vacate the scheduled premises within a period of two years by furnishing an undertaking to this Court. 7. While countering the aforesaid submissions, Mr. Sonawane, learned Counsel for the Respondents/Union of India would strenuously urge that there is no absolute right in favour of the Petitioner to continue in the suit premises as the period prescribed in leave and license agreement has already come to an end. According to him, plea of giving undertaking and granting breathing period of two years was already rejected by the authorities and as such the Petitioner was well aware about consequences of eviction proceedings well in advance. The learned Counsel for the Respondents then would invite attention of this Court to the fact that the Petitioner has already enjoyed the property almost for a period of more than one and half year after the proceedings for eviction were initiated. The learned Counsel for the Respondents then would invite attention of this Court to the fact that the Petitioner has already enjoyed the property almost for a period of more than one and half year after the proceedings for eviction were initiated. In the aforesaid backdrop, a further categorical statement is made on instructions which is already recorded by this Court in the order passed on 1/2/2021 that the Petitioner is already evicted from the suit premises. In the aforesaid backdrop, he prays for dismissal of the Petition. 8. Considered rival submissions. 9. This Court is required to look into the orders impugned to the extent of whether there is any material illegality committed by the Respondent/Estate Officer in passing the order of eviction so also by the learned District Judge while confirming the said order of eviction and if any such illegality is noticed, the prejudice caused to the Petitioner in such an eventuality. Fact remains that the Petitioner was served with the notice under Section 4 of the said Act and proceedings under Section 5 of the said Act were taken out by the Respondent/Estate Officer against the Petitioner. The Petitioner was given complete chance by the Estate Officer to place her case thereby resisting the proposed action of eviction. It can be inferred from the record that the period of leave and license has already been expired and thereafter only proceedings under the provisions of the said Act were initiated as the Petitioner has not responded to the notice by vacating the suit premises as mentioned in the impugned order of the Estate Officer. 10. As such, from the order of the Estate Officer, it cannot be inferred that the Petitioner is sought to be evicted by the Estate Officer under the provisions of the said Act prematurely or she has right in law to continue in the scheduled premises, as has been claimed for further period of two years on undertaking. 11. From the available record, it can be inferred that license period of the Petitioner was coming to an end in 2019, was a fact well within the knowledge of the Petitioner and that being so, Petitioner had enough time to make alternate arrangements in case the order of eviction is passed against her. 11. From the available record, it can be inferred that license period of the Petitioner was coming to an end in 2019, was a fact well within the knowledge of the Petitioner and that being so, Petitioner had enough time to make alternate arrangements in case the order of eviction is passed against her. Even otherwise, the Petitioner has enjoyed the property after the order of eviction passed by the Estate Officer on 28/10/2019 till her eviction i.e. till 1/2/2021 i.e. almost for a period of more than one year. 12. Prayer of the Petitioner that she should be permitted to be continued in the premises for a period of two years which will give her some breathing period to make alternate arrangements for operating her business of supply of LPG Cylinders cannot be accepted at this stage, particularly when the said prayer was rejected long back by the authority concerned. 13. In the aforesaid backdrop, if we appreciate the submissions of the learned Counsel for the Petitioner, the learned District Judge while exercising appellate powers has dealt with all the contentions of the Petitioner particularly requirement of scheduled premises by the Respondents for their developmental activities and license period of the Petitioner coming to an end on 31/4/2019. The lower appellate court rather has gone to the extent of observing in para 14 of its impugned order as under:- "14. I have also gone through the agreement of year 1973, whereby Commodore Naval Barracks granted permission to the appellant to bring his goods under control of Navel Barracks. Rather the possession of the shop was with Commodore Naval Barracks. The relevant covenant in the agreement of the 1973 is reproduced here : "1. The Commodore Naval Barracks retains the possession of the Shop No.T/19 and T/21 at Navy Nagar, Colaba, Bombay 400005 and does not grant the Contractor either lease or license or tenancy rights in respect of the said shop under this agreement." In the aforesaid background, lower appellate court was right in observing that possession of the shop was retained by the Respondents in view of recitals of the agreement of 1973 and no right is created in favour of the Petitioner about scheduled block and having possession in perpetuity. 14. Submissions of the learned Counsel for the Petitioner Mr. 14. Submissions of the learned Counsel for the Petitioner Mr. Tiwari that scheduled premises are not genuinely required by the Respondents for any development activity cannot be gone into at this stage of the proceedings, particularly when Respondents in categorical terms in their submissions have stated that scheduled premises are required by them for use that is mentioned in the order of eviction. Even otherwise, writ jurisdiction cannot be usurped in the form of appellate powers so as to re-appreciate the evidence. 15. In the aforesaid backdrop, no case for interference in extraordinary jurisdiction is made out. Petition as such stands dismissed. 16. After the order of dismissal of Writ Petition is pronounced, Mr. Tiwari, learned Counsel for the Petitioner prays that the order of status-quo passed on 1/2/2021 be continued for a period of 4 weeks from today as the Petitioner intends to question this order before the Hon'ble Apex Court. 17. The said prayer is opposed by the other side. 18. Considering the fact that Petitioner is already evicted as is reflected in the order passed by this Court, prayer for continuation of the order of status-quo stands rejected.