AJN 00-OS-WP(L)578.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (LODGING) NO.578 OF 2011 Vakil Khan Umar Khan ... Petitioner Vs. The Municipal Corporation of Greater Bombay. ... Respondents Mr. Y.E. Mooman with Ms. Manisha Gawde for the petitioner. Mr. Reis with Ms. Gharpure for the respondent- Corporation. CORAM: MRS. RANJANA DESAI & R.G. KETKAR, JJ. DATE ON WHICH THE ORDER IS RESERVED : 18TH APRIL, 2011. DATE ON WHICH THE ORDER IS PRONOUNCED: 25TH APRIL, 2011. P.C.:- 1. In this petition the petitioner has challenged order dated 25/2/2011 passed by the City Civil Court at Bombay in Misc. Appeal No.90 of 2010. AJN 00-OS-WP(L)578.11 2 2. The case of the petitioner is that since the year 1997, he is in exclusive use and occupation of Gala No.4 admeasuring about 58.53 sq. meters situated on the ground floor at M.H. Compound, Byculla Division, Boman Behram Marg, Byculla, Mumbai. He has been paying necessary taxes as per the assessment made by the respondent-Corporation as the said property is owned by the respondent-Corporation. 3. According to the petitioner in the year 1998, Ashirwad Co-operative Housing Society Limited arrived at an agreement with some builders for redevelopment of the property. The petitioner was requested by the said society to join the redevelopment scheme. The petitioner showed his willingness to join the scheme. The case of the petitioner is that the Chief Promoter of the said society played a fraud on him with a motive to deprive him of his legitimate right to permanent alternative accommodation. The name of the petitioner was not AJN 00-OS-WP(L)578.11 3 shown in Annexure II in respect of Gala No.4. His name was shown against Gala No.17 which only admeasures 225 sq. feet. The petitioner repeatedly corresponded with the Corporation and other authorities but to no avail. 4. The petitioner received notice dated 26/9/2008 under Section 105-B of the Mumbai Municipal Corporation Act, 1888 (for short, “the said Act”) from the respondent- Corporation directing him to vacate Gala No.17 as the said property was required by the Corporation in public interest. The petitioner through his advocate's letter dated 15/10/2008 brought to the notice of the respondent- Corporation that he is mischievously being shown as occupant of Gala No.17 when in fact he is in occupation of Gala No.4 and has been paying taxes for the same. A show cause notice being Inquiry No.E/43 of 2008 was issued to the petitioner again wrongly showing him as occupant of Gala No.17. According to the petitioner, in the inquiry, he produced all the documents pertaining to Gala No.4. The Inquiry Officer ignored those documents AJN 00-OS-WP(L)578.11 4 and passed eviction order on 9/9/2009 under Section 105- B(1) of the said Act in respect of Gala No.17. The petitioner challenged the said order by filing Misc. Appeal No.233 of 2009 in the City Civil Court at Mumbai. The City Civil Court set aside the said order and remanded the matter to the Inquiry Officer with direction to grant opportunity to the petitioner to file a reply and lead evidence, if any, strictly as regards documents at Ex-I, Ex-J and Ex-K. The Inquiry was accordingly conducted and the Inquiry Officer passed eviction order dated 22/6/2010 holding that the petitioner was in possession of accommodation admeasuring 192.50 sq. feet. His contention that he is occupying Gala No.4 and not Gala No.17 was rejected. Being aggrieved by the said order, the petitioner preferred Misc. Appeal No.90 of 2010 in the City Civil Court at Mumbai. By order dated 25/2/2011, the City Civil Court rejected the said appeal. Hence, the petitioner has filed this petition. 5. We have heard Mr. Mooman, learned counsel AJN 00-OS-WP(L)578.11 5 appearing for the petitioner at some length. He submitted that the petitioner had produced documents which related to premises which were in his possession admeasuring 58.53 sq. meters. Counsel submitted that Ex-I, Ex-J and Ex-K do not bear the signature and photographs of the petitioner. Counsel submitted that the burden of proving that the petitioner is the tenant or occupant of Gala No.17 was upon the respondent-Corporation. The respondent- Corporation has failed to discharge the burden. Counsel submitted that the impugned notice and order are perverse and merit interference from this court. Learned counsel for the respondent-Corporation, on the other hand, contended that no interference is necessary with the impugned notice and order as they are perfectly legal and justified. 6. The petitioner has stated in his evidence that he is the tenant of the respondent-Corporation. Therefore, the short question which is now involved in this petition is whether he is the tenant/occupier of Gala No.4 or Gala No. AJN 00-OS-WP(L)578.11 6 17. Admittedly, 70% of the occupants of the plot have consented for redevelopment. The project has been approved as per Regulation 33(7) of the Development Control Regulations. It is not the grievance of the petitioner that the respondent-Corporation has denied him any right in lieu of the tenanted premises which other occupants are likely to get. His grievance being only about the area of the premises in question, it is necessary to focus attention only on that aspect. In fact, Mr. Mooman has addressed us only on that aspect. 7. It is important to note that during the course of inquiry, the Inquiry Officer deputed Rent Collector Mr. Bhave to take measurements of the premises in question. Accordingly, measurements were taken and report dated 17/6/2010 was submitted to the court along with the sketch. According to the report, Gala No.4 is occupied by M/s. Jamalchand & Sons. It admeasures 190 sq. feet. Gala No.17 also admeasures 190 sq. feet. It is occupied by the petitioner. There are rent receipts indicating that the AJN 00-OS-WP(L)578.11 7 petitioner has paid rent for Gala No.17. The petitioner has accepted that these rent receipts are issued to him. It is not the petitioner's case that he was in occupation of two Galas. Documents at Ex-I, Ex-J and Ex-K indicate that Gala No.17 admeasures 190 sq. feet. Ex-J and Ex-K bear the photographs of the brother of the petitioner. The petitioner has admitted in his evidence that his brother is staying in the said premises. This explains how petitioner's brother's photographs are found on the said documents. A very significant admission made by the petitioner in his evidence needs to be noted. He has admitted that Gala No.4 is occupied by M/s. Jamalchand & Sons and not by him. He has admitted that the actual measurement of the premises occupied by him were taken in his presence by the Rent Collector, who submitted the report. Thus, the case of the petitioner that he is occupying Gala No.4 admeasuring 58.53 sq. meters and not Gala No.17 admeasuring 190 sq. feet is totally false. Learned Judge of the City Civil Court has rightly observed that this is an attempt to grab more area. AJN 00-OS-WP(L)578.11 8 In the circumstances, the eviction order cannot be interfered with. The appeal is rightly dismissed. The impugned order dated 25/2/2011 is a well reasoned order. All vital aspects have been taken into consideration and claim of the petitioner has been rejected. We concur with the learned Judge. In our pinion, no interference is warranted with the impugned order. In the circumstances, the petition is dismissed. [MRS. RANJANA DESAI, J.] [R.G. KETKAR, J.] 8. At this stage, counsel for the petitioner seeks stay of this order. Prayer is rejected. [MRS. RANJANA DESAI, J.] [R.G. KETKAR, J.]