1 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 286 OF 2011 Shagir Ahmed Sajjad Hussain Shaikh and Ors. ... Petitioners Versus Brihan Mumbai Municipal Corporation and Ors. ... Respondents Mr. V.R. Dhond with Ms. P.S. Colabawala i/by M/s. Mulla & Mulla & C.B.C. for the petitioners. Mr. Jonkim Rais with Mr. M.M. Malvankar for respondent B.M.C. CORAM : S.C. DHARMADHIKARI,J. DATED : JUNE 27, 2011 P.C. 1. By this petition filed under Article 226 and 227 of the Constitution of India, the petitioners are impugning the orders passed by the learned Judge, City Civil Court, Mumbai in Misc. Appeal No. 40 of 2010. 2. This Misc. Application was filed by the Petitioners challenging the order dated 4th March, 2010 by the Competent Authority/Enquiry Officer appointed under section 105B of the MMC Act, 1888. 3. Notice to show cause against the proposed eviction was issued 2 against the petitioner on the basis that CTS No. 480/1 to 23 situated at Swami Vivekananda Road, Oshiwara, Jogeshwari (West), Mumbai admeasuring 3000 sq. yards belongs to the Brihan Mumbai Municipal Corporation. It was leased to M/s. Ajit Glass Works on 9.2.1960 for thirty years. Upon expiry of the period of lease, the same was not renewed. The lessee was under an obligation to hand over possession of the premises to the Corporation. 4. The notice proceeds on the basis that the lessee was allowed to use the municipal property as industry and he had constructed a shed thereon. After the period of 30 years expired, the lease was not renewed, that the lessee M/s. Ajit Glass Works was in unauthorised occupation of the leased premises. The petitioners and some of the occupants in the structure put up on the property cannot have better rights once the lessee has not challenged the fact that the lease has come to an end by efflux of time and not renewed thereafter. Therefore, petitioners' continued occupation is unauthorized and they must face the eviction proceedings. 5. Some of the petitioners replied to the show cause notice by contending that their possession was not unauthorized and illegal and in fact they are protected occupiers because the property has now been 3 declared as slum under the Maharashtra Slum Areas (Improvement, Clearance and redevelopment) Act, 1971. Their structures are existing prior to 1st January, 1995 and therefore, they are protected. They have also formed Shiv Shakti SRA Coop. Hsg. Society for the entire area of 2800 sq. mtrs. They have also entered into a development agreement with M/s. Obama Builders and Developers and for all these reasons it cannot be said that they are in unauthorized occupation of the premises and therefore, liable to be evicted. 6. The Enquiry Officer found no substance in any of these contentions and from the findings on record, it is clear that the property belongs to Brihan Mumbai Municipal Corporation and that it was given on lease for the period of 30 years to M/s. Ajit Glass Works and that the lease having expired and the Petitioners being some of the ex- employees of that company, can not continue to hold on to the property. Thus they are liable to be evicted. It is this reasoning and conclusion of the Enquiry Officer which has been confirmed by the appellate authority and therefore, this writ petition. 7. Mr. Dhond learned counsel for the Petitioner invites my attention to the averments in the writ petition and particularly the fact 4 that in or around October, 2009 the petitioners filed a writ petition being Writ Petition No. 1518 of 2009 by which they prayed that the property be declared as slum and S.R.A. scheme be implemented. Finding that the matter was pending before the High Power Authority appointed by the State under the Act, they withdrew the writ petition with a liberty to approach that committee. Mr. Dhond submits that now there is declaration under the Slum Act declaring the property as slum and that has attained finality. The petitioners being in occupation prior to the cut off date and therefore, it cannot be said that they are in unauthorized occupation of the premises so also liable to be evicted. In fact the proceedings were not maintainable as the property is declared slum area. In these circumstances, the order passed should be set aside. He submits that none of the Authorities have examined this issue in law but have brushed aside the same. He therefore, prays that the petition be admitted and interim orders be continued. 8. On the other hand Mr. Rais appearing on behalf of the Brihanmumbai Municipal Corporation points out that this is clear case of petitioners trying to hold a very valuable property which belongs to Municipal Corporation. M/s. Ajit Glass Works have not disputed that the property was given to them on lease for the period of 30 years. They 5 have not disputed that the property belongs to the Corporation. There is no denial of the fact that the structure/shed on the plot of land was put up by M/s. Ajit Glass Works. The Petitioners have not obtained any relief from any high power committee or this court with regard to the declaration of the property as slum. He submits that the said declaration now relied upon is of no assistance to the Petitioners because they have admitted during the course of enquiry proceedings that the property is a leased property. It was given on lease by Municipal Corporation to M/s. Ajit Glass Works. It is admitted by M/s. Ajit Glass Works that they constructed a shed for their purpose. It is admitted position that M.C.G.B. had not given the premises on leave and licence basis to any of the petitioners. Having admitted this position, now it is not open to them to urge to the contrary. For all these reasons, the petition deserves to be dismissed. 9. With the assistance of Mr. Dhond and Mr. Rais, I have perused the impugned orders. I am in agreement with Mr. Rais that the attempt made by the petitioners is to somehow hold on to the property. The Petitioners filed a reply to the show cause notice raising the above pleas. However, during the course of enquiry there is reference made by the Enquiry Officer to the deposition of Shri. Rajesh Sharma who deposed 6 on behalf of some of the petitioners. Also there is reference to the deposition of Shri. Javed Ali Khan. They admit that the premises had been leased by the MCGB to M/s. Ajit Glass Works. However, M/s. Ajit Glass Works had allotted some of the structures on the plot of land to the petitioners for their residence. They have no document to show that they are either owners of the property or have any other interest therein. The structures are not put up by any of these petitioners. Once such is factual position and M/s. Ajit Glass Works not disputing the fact that the lease has come to an end by efflux of time and that it was not renewed, then, the argument of Mr. Dhond on the basis of the pleas in this petition can not be accepted. It is not the case where any structures have been put up by the petitioners on the said land under some right which is distinct from that of M/s. Ajit Glass Works. These persons appear to have been inducted by M/s. Ajit Glass Works either as its employees or otherwise but they have no independent right therein. There is no question of petitioners therefore, claiming protection of the Slum Act. Thus, there is no question of the petitioners being permitted to hold on to the premises. They were clearly in unauthorized occupation thereof. That the property belongs to Municipal Corporation is not in dispute. In such circumstances, there was no necessity for the authority 7 as also the appellate court to go into the issue of whether the said property can be declared as slum. The occupation of the petitioners can be said to be on the basis that the premises are allotted to them by M/s. Ajit Glass Works and they continued as on 1.1.1995 but that by itself is of no significance to urge that the petitioners are not in unauthorized occupation of the said premises. To my mind, this is an attempt by the petitioners to not only protect their unauthorized occupation but to usurp the public premises and property with the help of some developers and builders. That the Municipal Corporation property can be declared as slum and without any reference to the corporation as contended by Mr. Rais is a serious matter. It is not for me to go into all these aspects but this is a fit case where the Corporation and State Government will look into the matter and order appropriate enquiries and bring all those guilty to book. This is a clear case where the people who are in possession of public property, long after the authority to occupy the same coming to an end are therefore, rightly termed as unauthorized occupants. They have been rightly evicted and the concurrent orders in that behalf do not call for any interference as neither they are vitiated by any errors apparent on the face of record nor perversity. This court does not act as a court of further appeal so as to 8 re-appreciate the factual materials. In the circumstances, writ petition is devoid of any merits and hence, it is dismissed with no costs. 10. At this stage, Mr. Dhond appearing for the petitioners seeks continuation of the order passed by this court on 13th January, 2011. The said request is opposed on behalf of the Municipal Corporation. Finding that the petitioners are in completely unauthorized occupation and possession of the said premises and are party to the larger attempt of usurping a public property, this is not a fit case to continue the ad interim order. Hence, request is rejected. (S.C. DHARMADHIKARI,J.)