1 wp-4647,4648n4649.08 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4647 OF 2008 AND WRIT PETITION NO. 4648 OF 2008 AND WRIT PETITION NO. 4649 OF 2008 WP NO. 4647 OF 2008 M/s. New Famous Litho Works Pvt. Ltd. .. Petitioner Vs The Municipal Corporation of Greater Mumbai. .. Respondent -- WP NO. 4648 OF 2008 M/s. Auto Garage. .. Petitioner Vs. The Municipal Corporation of Greater Mumbai. .. Respondent -- WP NO. 4649 OF 2008 M/s. Royal Dyeing & Printing Works .. Petitioner Vs The Municipal Corporation of Greater Mumbai. .. Respondents -- Shri Jokeim Reis along with Shri Anil C. Singh and Shri Atul Singh i/by Shri A.D. Yadav for the Petitioners in the aforesaid Petitions. Shri A.Y. Sakhare, Senior Counsel with Shri J.J. Xavier for the Respondent in the aforesaid Petitions. -- CORAM : A.S.OKA, J. DATE : 19TH OCTOBER, 2010 2 wp-4647,4648n4649.08 P.C: . I have heard the submissions of the learned counsel appearing for the Petitioners and the learned senior counsel appearing for the Respondent in the aforesaid three Writ Petitions. 2. The challenge in these Writ Petitions is to the order of eviction passed by the Enquiry officer under the provisions of Section 105 (B)(1) of the Mumbai Municipal Corporation Act, 1888 ( hereinafter referred to as “the said Act”). A show cause notice was issued by the Enquiry officer to the Petitioners alleging that the Petitioners have sub-let the premises in their possession contrary to the terms and conditions of the letting. It was alleged that the Petitioners have unauthorizedly encroached upon the municipal land and that the Petitioners were in unauthorized possession of the premises. The Enquiry Officer passed an order of eviction. Statutory appeals were preferred before the City Civil Court. The said appeals were dismissed. 3. The first submission made by the learned counsel appearing for the Petitioners is that no opportunity of being heard was extended to the Petitioners. He pointed out that on 2nd June, 1999, a letter was submitted by the Petitioners seeking adjournment of the hearing which was fixed on 3rd June, 1999. He stated that next date for hearing was not communicated to the Petitioners. He submitted that therefore, no opportunity was 3 wp-4647,4648n4649.08 available to the Petitioners to contest the eviction proceedings and to adduce the evidence. He invited attention of the Court to the show cause notice which preceded the order of eviction in which it was alleged that the Petitioners have sub-let the premises contrary to the terms and conditions of letting. He invited attention of the Court to sub-clause (ii) of Clause (a) of Sub-section (1) of Section 105-B of the said Act and submitted that a prohibition against the sub-letting was brought on the statute book in the year 1989 and there is no allegation made that the Petitioners had sub-let the suit premises after 1989. It is submitted that the burden was on the Municipal Corporation to allege and prove that the sub-letting was after 1989 which burden has not been discharged. Thirdly he submitted that Section 116 of the Transfer of Property Act, 1882 will have application as, after the order of eviction was passed, the rent offered was regularly accepted by the Mumbai Municipal Corporation. He placed reliance on a decision of the Apex Court in the case of Bhawanji Lakhamshi & Others v. Himatlal Jamnadas Dani & Others ( AIR 1972 SC 819). He submitted that the Appellate Authority has completely misread the averments and prayers made in the suit of the year 2005 filed by the Petitioners. He submitted that the suit proceeds on the footing that the Defendants therein were allowed to store the goods in the premises in question and the prayer was not for possession of the premises but for passing a mandatory order directing the Defendants therein to remove the goods stored in the premises in question. He, therefore, submitted that the Petitioners have not parted with the possession and they had merely permitted the other parties to the 4 wp-4647,4648n4649.08 eviction proceedings only to store the goods in the premises. 4. I have given careful consideration to the submissions. The order of the Estate Officer records that the petitioners had submitted a letter dated 2nd June, 1999 seeking adjournment of the hearing which was fixed on 3rd June, 1999. It must be noted here that the Enquiry Officer did not pass an order immediately and the same was passed on 21st October, 1999. Most of the Opponents in the Eviction Application filed their written statements and contested the proceedings. The Enquiry Officer noted the contention raised by the occupants allegedly inducted by the Petitioners that they may be approved as the tenants of the Mumbai Municipal Corporation. The Petitioners were admittedly served with the notice of eviction proceedings. After making an application on 2nd June, 1999, the Petitioners did not bother to remain present before the Enquiry Officer and to contest the eviction proceedings. Nothing prevented the Petitioners from contesting the proceedings. This is not a case where the proceedings were immediately decided. Even after 2nd June, 1999, the proceedings were remained pending for more than 2 and ½ months. 5. The allegation in the show cause notice is that the Petitioners have sub-let the premises owned by the Mumbai Municipal Corporation. If the case of the Petitioners was that the sub-letting was prior to 1989, the said case could have been specifically made out in the appeal. Perusal of the judgment of the Appellate Court shows that such a contention was not 5 wp-4647,4648n4649.08 raised. The contentions which were specifically raised by the Petitioners have been summarized in Paragraph 6 of the judgment which reads thus:- “6. It is the case of original lessees that they simply allowed the aforesaid occupants to store their goods in the premises and it was not the case of sub-lease. It is the case of sub-lessees that they came to know about passing of eviction order when such defence was taken by actual occupants in SC Suit No.5260/2005 which was filed by the original lessees. After filing of the said suit the present proceedings came to be filed and it appears that delay cause in filing the appeal is already condoned.” 6. Thus, the only case which was made out before the Appellate Court was that the Petitioners had allowed the occupants to store their goods in the premises. The Appellate Court has recorded a finding of fact that the record produced before the Enquiry Officer shows that the occupants have been carrying on business in the subject premises and have taken connection of electricity and that they are holding licences under the Shops and Establishments Act. In view of these factual aspect, the only contention raised by the Petitioners that the occupants were allowed to store the goods was not accepted by the Appellate Court. The only case made out by the Petitioners that the occupants were allowed to store their goods was negatived by both the Authorities on the basis of the documentary evidence produced before them by the occupants including the evidence of the licences under the Shops and Establishment Act. The Appellate Court has rightly dealt with the contention of the Petitioners that the sub-letting was prior to the year 1989 by observing that the Petitioners 6 wp-4647,4648n4649.08 have not come out with a bold case that in fact the premises were sub-let and that the sub-letting was prior to the year 1989. 7. As far as the observations made by the Appellate Court regarding the prayer made in the suit filed by the Petitioners is concerned, the Appellate Court has correctly noted that the relief of mandatory injunction was claimed in the said suit. The order of eviction was passed in the year 2005. The owner of the premises is the Mumbai Municipal Corporation. If members of the staff of the Respondent Corporation received the rent from the Petitioners after the order of eviction, mere acceptance of the amount of rent after the order of eviction was passed cannot confer any status of the tenant holding over in respect of the suit premises. 8. The learned counsel for the Petitioners tried to contend that the order of eviction has been passed only with a view to protect the alleged sub-tenants to enable them to secure permanent accommodation from the builder in rehabilitation scheme. There is no substance in this apprehension as the order of eviction has been also passed against the sub- lessees. The order of eviction is bound to be implemented even against them as they have not challenged the order of eviction. 9. In the circumstances, there is no reason to interfere with the impugned order of eviction. There is no merit in the Petitions and the 7 wp-4647,4648n4649.08 same are rejected. 10. On the prayer made by the learned counsel appearing for the Petitioners, the ad-interim relief which is operating is extended by a period of three months from today. (A.S.OKA, J)