1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO.379 OF 2010 WITH CIVIL APPLICATION NO.507 OF 2010 Shri Mukund B. Nirgudkar ...Appellant. v. The M.C.G.M. ...Respondents. Mr.Prabhakar K. Shetty,adv. For the Appellant. Smt. K.K.Soran, adv. For the Respondent/BMC. CORAM : J.H. BHATIA, J. DATED : MAY 3, 2010 P.C. 1 Heard the learned counsel for the parties. Plaintiff/appellant retired from the service of the Municipal Corporation in the year 1987. While he was in service, he was provided with suit premises as service accommodation. After his retirement, he did not vacate it and continued to pay Rs.47/- per month as standard rent. Now apprehending that the Municipal Corporation may take action against him under section 105(b) of the Municipal Corporation Act for eviction from unauthorised occupation he filed L.C.Suit No.529/09. Therein, he also took out notice of motion for temporary injunction. The trial Court rejected notice of motion on two grounds, firstly as the plaintiff claims to be tenant, the civil Court does not have the jurisdiction and the suit should be filed in 2 the Small Causes Court and secondly, the plaintiff has not made out any prima-facie case in his favour. 2 As far as first point is concerned, it will be difficult to agree with the trial Court because the case does not fall under the Maharashtra Rent Act in view of the specific provision under Section 3(1)(a) of the said Act which excludes premises of the local authority from the scope of the Rent Act. Section 41(1) of the Presidency Small Cause Courts Act, 1882 provides that subject to provisions of Sub-section 2 Court of Small Causes shall have the jurisdiction to entertain and try suit and proceedings between the licensor or licensee or the landlord and the tenant and relating to recovery of possession of the immovable property, etc. Sub-section 2, however, provides that nothing contained subsection 1 shall apply to suits or proceedings for the recovery of possession of any immovable property, or of license fee or charges or rent thereof, to which the provisions of Rent Control Act, the Bombay Government Premises (Eviction) Act, the Bombay Municipal Corporation Act, MHADA Act are applicable. Provisions of Chapter V-A of the Mumbai Municipal Corporation Act are applicable to the property in dispute and , therefore, jurisdiction of the Small Cause Court under Section 41(2) is excluded to entertain such suit. 3 3 Coming to the facts of the case, there is no document to show that the plaintiff was ever a tenant of the suit premises or that he was authorised occupant of the same. The only contention is that after retirement, he has been in occupation of the same for the last 23 years and he has been paying some rent or occupation charges. That itself does not give him legal right to continue to occupy the same. The learned counsel has relied upon communication dated 3.11.2007 under Right to Information Act wherein it is mentioned that he had retired on 1.9.1987 on attending age of superannuation and as per the record, premises were given to him on standard rent basis. Another communication is dated 3.6.2008 from the Municipal Corporation wherein it is clearly stated that he has no legal right, title or interest in the suit premises, situated in Tata Compound, S.V.Road. However, only on humanitarian ground without accepting any of his rights to occupy Municipal accommodation, Municipal Corporation offered him temporary accommodation at Cascade building, Flat No.607, B Wing, 6th floor, Kulupwadi, Borivali(East). The learned counsel contends that it is a small accommodation admeasuring around 225 sq.ft. while presently he is occupying house having carpet area of 700 sq.ft.. After retirement, applicant cannot claim any legal right to continue to occupy the suit 4 house having 700 sq.ft. carpet area. In fact, he has no legal right even for alternate accommodation but the Municipal Corporation has offered him alternate accommodation purely on humanitarian ground but he is not willing to accept the same. If the contention of the appellant is accepted, it will be impossible for the Government or the Municipal Corporation to provide accommodation to its employees on duty because one after another all the residential accommodation would be occupied only by retired people. If no action was taken by the Municipal Corporation for the last 23 years, that was inefficiency on the part of the Municipal Corporation. In view of the above circumstances, I find that the plaintiff has no legal right and he has not made out prima-facie case and the balance of convenience does not lie in his favour. 4 For the aforesaid reasons, appeal stands dismissed. As the appeal itself is dismissed, civil application no.507/10 does not survive and stands disposed off. (J.H. BHATIA,J.)