1 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.735 OF 2009 Smt. Maya Vishwanath Khedekar .... Applicant Vs. The Municipal Corporation of Gr. . .... Respondents. Mumbai & Ors. ..... Mr. Rajiv Patil i/b Sameer Singh, for the Applicant. Mrs. K.K. Sorran, for the Respondent No.1. ..... CORAM: S.C. DHARMADHIKARI,J. DATE : 19 th APRIL, 2010. P.C. 1. The Applicant has approached this Court in its jurisdiction under section 115 of Code of Civil Procedure challenging the order dated 7th June, 2008 passed by the Principal Judge of City Civil Court, Mumbai in Misc. Appeal No.106 of 2008. That appeal challenges the order of the Inquiry Officer dated 4th August, 2005 evicting the Applicant from the premises more particularly described therein. This order was passed in exercise of the powers conferred on the officer under section 105B of Municipal Corporation Act, 1888. 2. Shri Patil, appearing on behalf of the Applicant submits that the Applicant is presently occupying the premises viz. Room No.4, Chawl No.B/17, Mitha Nagar,Municipal Colony, Goregaon (W), Mumbai. Shri Patil does not dispute that this is municipal property. However, he submits that 2 what the Principal Judge and the Inquiry Officer overlooked is a fact that the occupants of these chawls, who are ex-municipal employees have organized themselves into a co-operative housing society which is duly registered under the Maharashtra Co-Operative Societies Act, 1960. This Society has applied for maintaining the building/chawl on its own and requested Municipal Corporation to transfer the rights in that behalf. Shri Patil submits that the occupants are the municipal employees who have rendered their services to the Corporation and the Corporation in recognition of these services, has after retirement of these Employees, made arrangement so that the ex-employees continue to occupy the premises in their occupation. Therefore, although, the allotment is on the basis that they are staff quarters, after registration of the co-operative housing society, their character has undergone a change and for all these reasons the Applicant could not have been evicted from the premises in question. The Applicant is not an unauthorised occupant and liable to be evicted as held. He submits that actions of the Municipal Authority have to be reasonable, fair and just and in consonance with the mandate of article 14 of the Constitution of India. The municipal employees having rendered meritorious service. They cannot be thrown out of the premises after their offer of maintaining the municipal property is under consideration of the Corporation. 3. Shri Patil urges that in the instant case, the employee was 3 Smt.Vimal Madan. She was the original occupant/licensee. She retired on account of superannuation on 1st September, 1986. She unfortunately expired on 17th November, 1998. The present Applicant is also municipal employee and was occupying the premises along with her sister for a considerable period of time. In such circumstances, and when the co- operative society has agreed to accept the present Applicant as a member in place of her sister Smt. Vimal Madan, then, the Principal Judge and the Inquiry Officer were in error in observing that the Applicant is an unauthorized occupant and deserves to be evicting from the subject premises. 4. For all these reasons he submits that the order under challenge be set aside. 5. The learned Advocate appearing on behalf of Respondent No. 1-Corporation supports the impugned order and submits that till date the premises retain their character as municipal property/premises, therefore, the first Respondent were entitled to evict the Applicant. In such circumstances and when the Applicant has been found to be unauthorized occupant, then, no right is created in her favour. Assuming that her sister was occupying the premises and she succeeds her estate, that deceased sister herself had no right to continue in the premises after her superannuation. For all these reasons, it is contended that the order under challenge does not suffer from any error of jurisdiction nor can it be said to 4 be vitiated by material irregularity resulting in manifest injustice so as to call for an interference in this Court’s Provisional jurisdiction. Consequently, the application be dismissed. 6. Having heard the learned counsel for the parties and perused with their assistance the order under challenge, I do not find any reason to interfere with the concurrent finding that the original occupant was a municipal employee and she retired on 1st September 1986. During her tenure as a Municipal Employee no rights were created in this property in her favour leave alone even post retirement. Subsequently, the original occupant Smt. Vimal Kadam expired on 17th November 1998. True it is that the learned Principal Judge has made reference to the co-operative housing society formed by the occupants and their desire to develop the property by presenting a scheme. The learned Advocate for the Respondent No.1- Corporation states that there are several such municipal chawls/colonies but the Corporation has yet to take a decision on whether the occupants, who have organized themselves into a co-operative housing society, can be transferred any rights in respect of the municipal property. The Applicant admittedly claims under the Will of her sister Smt. Vimal Kadam executed on 15th October 1998. She has also stated that the co-operative housing society had agreed to accept her as a member in place of her deceased sister. It may be that the co-operative housing society has taken a decision on these lines, however, the property viz. Chawl has not been transferred in 5 favour of the society and continues to retain its character as municipal property. For all these reasons and finding that the conclusion recorded by the Authority does not suffer from any error of jurisdiction and can neither be termed as erroneous or perverse, there is no reason to interfere with the Order under challenge in this Court’s Revisional or Inherent Jurisdiction. The Application is accordingly dismissed. No costs. 7. However, if the 2nd Respondent-Society has presented any scheme as aforesaid to the municipal corporation and the Corporation is yet to take a decision thereon, then interest of justice would be served if it is directed that the Corporation should take a decision with regard to any pending scheme submitted by the second Respondent Society within a period of three months from today and for a period of three months the Applicant shall not be evicted or dispossessed from the municipal property/premises in question. Needless to clarify that if after this period the co-operative housing society is not given any benefit or right in respect of the municipal building or premises in question, then, the first Respondent can execute the orders of eviction and can take such steps as are permissible in law to evict the Applicant from the premises. Needless to state that this order does not prevent the second Respondent Society from considering the application of the Applicant as observed above and enrolling her as a member in place of her sister. (S. C. DHARMADHIKARI, J.) 6