1 C.R.A.No.61 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.61 OF 2011 WITH CIVIL APPLICATION NO.8106 OF 2011 Divisional Controller, Maharashtra State Road Transport Corporation, Parbhani Division, Parbhani ..APPLICANT VERSUS 1. Abdul Gaffar Abdul Khadar, Age 70 years, Occu.Business, R/o Jintur, Taluka Jintur, District Parbhani, through G.P.A. Abdul Sattar, Age 50 years, Occu.Business, R/o Jintur, Taluka Jintur, District Parbhani (2) Azizkhan Ameerkhan Pathan, | C.R.A.abated against Age 50 years, Occu.Business, | Resp.No.2 as per R/o Would Base, Jintur, | Court’s order dated Taluka Jintur, District Parbhani | 28.2.2011 in C.A.No. | 15266 of 2010 and (3) Azarullahkhan Abdullahkhan | dismissed as against Pathan, Age 50 years, | Resp.No.3 as per Occu.Business, R/o Jintur, | Court’s order dated Taluka Jintur, District Parbhani | 9.11.2011 ..RESPONDENTS Mr Anand D.Wange, Advocate for applicant Mr V.C.Patil, Advocate for respondent No.1 C.R.A. And C.A. abated as against respondent No.2 as per Court’s order dated 28.2.2011 in C.A.No.15266 of 2010 and dismissed as against respondent No.3 as per Court’s order dated 9.11.2011 CORAM : K.U. CHANDIWAL, J. DATE : 23rd November 2011 2 C.R.A.No.61 of 2011 ORAL JUDGMENT 1. Rule. Rule returnable forthwith. With the consent of learned Counsel for the parties, heard finally at the stage of admission. 2. The parties are referred as per their original status i.e. M.S.R.T.C.,and tenant-licencee respectively. 3. MSRTC let out on licence a premises for book stall to the respondent No.1 initially on 16th May 1982 at the rate of Rs.142/- per month. Thereafter on 11.3.1987 the respondent No.1-tenant licencee filled in the tender for same book stall at the rate of Rs. 261/- per month. However, other two bidders namely Mangilal and Jaichand offered Rs.365/- and Rs.490/- per month respectively, payable to the MSRTC. Consequently, MSRTC asked the respondent No.1, in tune with its Circular in order to give priority to the old occupant to continue, whether Respondent agrees for payment of Rs.490/- per month or any additional sum. It was in this situation, the respondent No.1 - licencee agreed to pay Rs.495/- per month. The photostat copy at Exh.51 was placed before the authorities bears signature of respondent No.1-tenant and other Officers of MSRTC dated 20.5.1987. 3 C.R.A.No.61 of 2011 4. The learned Counsel for the respondent No.1 submits that the other tenderers Mangilal and Jaychand remained absent when the tenders were opened and the offer at the rate of Rs.261/- per month should have been accepted instead of forcing him to pay Rs.495/- per month. Learned Counsel further submits, any observation in the judgment in R.C.S.No.27 of 1990 would not be applicable against the respondent, as the proceedings before Civil Court itself are barred in terms of Section 8A of the Bombay Government Premises (Eviction) Act, 1955. Learned Counsel also submits, since it was challenge to the enhancement of the licence fee, the action of MSRTC was questioned in the said suit. Said order of the learned Civil Judge, Senior Division, Parbhani in R.C.S.No.27 of 1990 decided on 8.3.1991 was questioned by the respondent by filing R.C.A.No.56 of 1991. 5. Both the learned Counsel are not in a position to inform, as to what has happened to R.C.A.No.56 of 1991. 6. MSRTC having realised that the respondent No.1-licensee is not adhering to payment schedule at the rate of Rs.495/- per month, moved the competent authority by filing recovery/eviction case No.A/BGPE/10/90 on 16.6.1990, which has been decided on 19.11.2004. 4 C.R.A.No.61 of 2011 7. It is curious, before the Resident Deputy Collector, Parbhani, who was competent under the statute to entertain the proceedings, the respondent No.1 did not advert to the genuineness of the phtostat documents tendered by the MSRTC, The learned Sub Divisional Officer, based on the correspondence and conduct of the parties, in particular the respondent, directed the respondent to pay the licence fee at the rate of Rs.495/- per month effective from 16.5.1987. 8. One of the ground raised by the respondent was, even if the licence fee was enhanced and fixed at Rs.495/- by MSRTC, there was no such agreement and consequently, MSRTC could not bank upon such rentals/licence fee. 9. The learned District Judge in the appeal R.C.A.No.153 of 2004 preferred by the respondent Abdul Gaffar, by the judgment dated 20.2.2010 allowed the appeal. The learned District Judge held, the observations and findings in R.C.S.No.27 of 1990 would not be binding on the respondent, as the suit itself could not have been filed before the civil Court. 10. The learned District Judge declined to consider photostat copies of documents. The observations of the learned District Judge in R.C.A.No.154 of 2004, on the worth of the document or 5 C.R.A.No.61 of 2011 the admission rendered by respondent, cannot be accepted on following grounds: (a) Before the competent authority, the respondent had, at no point raised any objection in respect of production and genuineness of documents as was tendered by MSRTC. He even did not dispute his signatures; (b) The respondent filed R.C.S.No.27/1990 before Civil Judge, Senior Division, Parbhani in which he adduced evidence, accepted that the rentals/licence fee was agreed upon at Rs.495/- per month. However, he was harassed by MSRTC and, therefore, he sought injunction. The admission given by the respondent cannot be allowed to be whittled away by virtue of invoking the provisions of Section 8A of the Bombay Government Premises (Eviction) Act, 1955, as has been done by the learned District judge. The Respondent had submitted to the jurisdiction of Civil Court. The learned District Judge taking up different proceedings was not called upon to comment on merits in R.C.S.27/1990, a already subjudice matter. (c) The criticism in findings of R.C.S.27/1990 including nullity is to be attended by competent forum in said case (like RCA 56/1991) and not in distinct independent other proceedings. 6 C.R.A.No.61 of 2011 (d) The observation of the learned District Judge that the Resident Deputy Collector should not have accepted evidence in the form of photostat copy of application, in the above referred situation, is not flowing in tune in the record. 11. The learned District Judge has dealt with the procedure as to how to call for the tenders and to give finality to the said procedure. There cannot be issue to this assertion. However, the learned District Judge did not venture to the fact of agreement by way of an admission from the respondent to pay licence fee at the rate of Rs.495/- per month, as the tenders were invited and the highest tenderer quoted Rs.490/- per month. It was in the situation, the respondent agreed to accept licence fee at the rate of Rs.495/- per month. This cannot be said to be under the duress or acceptance was without prejudice to the rights of the respondent. Since the respondent had acknowledged, accepted his liability to pay the licence fee at the rate of Rs.495/- per month, the learned District Judge was certainly in error in holding that licence fee being not flowing with the tender conditions could not have been complied. The observation is naturally oblivious to the circulars of 1984 of MSRTC which prima facie accept licencee to continue in occupation provided he agree to adhere the revised rentals/licence fee. MSRTC made repeated demands through letters dated 21.12.1988, 20.1.1989, 11.10.1989, 16.10.1989, 10.1.1990. 7 C.R.A.No.61 of 2011 12. Taking survey of above facts, the judgment and order passed by the learned District Judge, Parbhani in R.C.A.No.153 of 2004 dated 20.2.2010 calls for interference and it is set aside. However, instead of directing the respondent No.1 to vacate from the premises, following order is made. 13. The respondent No.1 to pay the rentals/licence fee to MSRTC at the rate of Rs.495/- per month, including the arrears. Arrears to be paid within three months. Failure to comply the remittance, the remedies in the law of recovering the same as land revenue under Maharashtra Land Revenue Code can be exhausted by the MSRTC. 14. Civil Revision Application allowed to the above extent. Rule made absolute in above terms. No order as to costs. Civil Application disposed of. ( K.U. CHANDIWAL, J.) (vvr/61.2011cra)