1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION WRIT PETITION NO.: 6918 OF 2010 *** The Municipal Council, Pathri, Tq. Pathri, Dist. Parbhani. Through its Chief Officer. ... PETITIONER. Versus 1. Ram S/o Pralhad Khetri, Aged: 37 years, Occ.: Business, R/o Main Road, Pathri. 2. Laxman S/o Pralahd Khetrim, Aged 33 years, Occ. and R/o as above. 3. Babulal S/o Ramgopal Mantri, (Died through L.R.) Jagdish S/o Babulal Mantri, Aged: 60 years, Occu. and R/o as above. 4. Mohd. Akbar S/o Abdul Gaffar, Aged 31 yesrs, Occu.: and R/o as above. 5. Shaikh Salim S/o Shaikh Raj, Aged 40 years, Occ. and R/o as above. 6. Baddroddin S/o Sk. Mohd. Khaja, Aged 55 years, Occu. and R/o as above. 7. Moin Rafioddin Ansari, Aged 45 years, Occu. and R/o as above. 8. Vithal S/o Kondiba Kawale, Died through L.R. Rukhminibai W/o Vithal Kawale, Aged: 35 years, Occu. and R/o as above. 2 9. Mohammad Younous S/o Halimji Aged 50 years, Occ. and R/o as above. 10.Ashok Murlidhar Utikar, Aged 55 years, Occu. and R/o as above. 11.Mohad Bin S/o Syed Chous, Aged 40 years, Occu. and R/o as above. 12.Haribhau S/o Shankarlal Thoke, Through L.R. Bhausaheb S/o Haribhau Thoke, Aged 26 years. 13.Subhash S/o Munjaji Badre, Aged 36 years, Occu. and R/o as above. 14.Hanuman S/o rawan Ambegaonkar, Aged 45 years, Occu. and R/o as above. 15.Mohd Baher S/o Md. Idris, Aged 32 years, Occ. and R/o as above. 16.Mohd. Azar S/o Mohd. Idris, Aged 35 years, Occ. and R/o as above. 17.Sow. Chandrakala W/o Shivaji Chinchane, Aged: 35 years, Occu. and R/o as above. 18.Sanjaykumar S/o Ratanlal Mundada, Aged 45 years, Occu. and R/o as above. 19.Anant S/o Devrao Shinde, Aged: 46 years, Occ. and R/o as above. 20.Sk. Masum S/o Sk. Amin, Aged 51 years, Occ. and R/o as above. 3 21.Jabbar S/o Abdul Gaffar, Aged: 40 years, Occ. and R/o as above. 22.Shivaji S/o Bapurao Chinchane, Aged: 32 years, Occ. and R/o as above. 23.Namdeo S/o Bapurao Chinchane, Aged: 30 years, Occ. and R/o as above. 24.Ahmed Bin Saleh Bin Hawel, Aged: 40 years, Occ. and R/o as above. 25.The Resident Deputy Collector, Parbhani. ... RESPONDENTS *** Mr. Mr. P.V.Mandilk, Senior Advocate h/f Mr. Amol Gandhi, Advocate for the Petitioner. Mr. S. S. Rathi, Advocate for Respondent Nos.1 to 15 and 17 to 24. *** CORAM: B. P. DHARMADHIKARI, J. DATED:- 14th FEBRUARY, 2011. ORAL JUDGMENT: 1. Heard finally by making Rule returnable forthwith. 2. Proceedings instituted in 2007 by Petitioner Municipal Council, against Respondent Nos.1 to 24 for eviction under the Bombay Government Premises (Eviction) Act, 1955 (Eviction Act, hereafter) before Respondent No.25 are held to be without jurisdiction by the Principal District Judge, Parbhani in Misc. Civil Appeal No.66 of 2010. 4 3. Learned senior Advocate Shri Mandlik has contended that said appeal was not maintainable as it challenged only finding recorded by Respondent No.25 that proceedings were maintainable before him. In the alternate, attention is invited to order of Respondent No.25 dated 30th April, 2009 pointing out that as per notification dated 1st February, 1965 respondent No.25 has been authorised to function as a competent Officer under section 3 of Eviction Act. 4. Shri S.S.Rathi has tendered reply affidavit on behalf of Respondent Nos.1 to 24. He invites attention to provisions of section 100A of Maharashtra Municipal Councils, Nagar Panchayats and Industrial Township Act, 1965 (mentioned as 1965 Act, hereafter) as added vide Amendment by Maharashtra Act No.11 of 1983 to state that notification of extending provisions of Eviction Act to Municipal area has to be necessarily after 1983. A subsequent notification dated 28th April, 2010 is also relied upon by him to show that by said notification the competent authorities have been appointed under Eviction Act even 5 for Municipal areas. 5. The institution of proceedings by petitioner against respondent Nos.1 to 24 is in the year 2007. Therefore, bare perusal of section 100A of 1965 Act shows that the provisions of Eviction Act, 1955 and the Rules made thereunder become applicable mutatis mutandis to municipal premises with effect from such date and in such municipal areas as State Government by notification in official gazette specify. It is, therefore, obvious that this notification has to be after 1983. The notification dated 1st February, 1965 relied upon by Respondent No.25 in his order dated 30th April, 2009 is, therefore, not relevant at all. 6. Perusal of the Government notification dated 28th April, 2010 shows that same has been issued under the provisions of Section 100A of the above mentioned 1965 Act and the provisions of Eviction Act are made applicable to municipal areas and for that purpose the competent authorities are also specified. On 21st May, 2010 Deputy Secretary to State of Maharashtra has issued a communication to all 6 competent authorities and to all municipal councils about appointment of comptent authority on 28th April, 2010. 7. In view of this material brought on record, it is apparent that in 2007 Respondent No.25 was not competent authority to take cognizance of the proceeding as instituted by present petitioner. 8. Learned counsel for the Petitioner has urged that appeal filed by the Respondent Nos. 1 to 24 before Principal District Judge under section 4 (2) of Eviction Act is not maintainable. However, in the light of the material which has come on record, I am not inclined to go into that controversy. 9. With liberty to the petitioner municipal council to take such steps as are open to it in law, present writ petition is, therefore, disposed of. Rule discharged. No costs. [B.P.DHARMADHIKARI, J.] Dated:-14/02/2011. ans/6918 7 WRIT PETITION NO.: 6918 OF 2010 Date of decision: 14th FEBRUARY, 2011. For approval and signature THE HONOURABLE SHRI JUSTICE B. P. DHARMADHIKARI. Whether Reporters of local papers ... Yes may be allowed to see the judgment? To be referred to the Reporter or not? ... Yes Whether Their Lordships wish to see ... No fair copy of the judgment? Whether this case involves a substantial ... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? Whether it is to be circulated to the ... No Civil Judges? Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE