IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6425 OF 2007 WRIT PETITION NO. 6425 OF 2007 WRIT PETITION NO. 6425 OF 2007 Mahadeo Gajanan Desai ] .. Petitioner Versus Municipal Corporation of Greater Mumbai] .. Respondent Mr. R.A. Thorat and P.J. Thorat with Prachi Tatke for the petitioner. Mr. A.J. Bhor for the respondent. CORAM: S.B. MHASE, J. DATED: 08TH JANUARY, 2008 P.C. : 1. Heard Mr.R.A. Thorat for the petitioner. 2. This matter pertains to the premises comprising Room No.179, Ground floor, Hanuman Nagar, Ranjit Budhakar Marg, Worli, Mumbai which is admittedly a property owned by the Municipal Corporation of Greater Mumbai. The proceedings under Section 105-B(1) of the Mumbai Municipal Corporation Act, 1888, were initiated by the Enquiry Officer in Enquiry No.GS/24/2002 and by order dated 27th December, 2004, the Enquiry Officer directed the petitioner and/or any other person who is in occupation of the said premises to vacate the same : 2 : within one month from the date of service of the notice under Section 105-B(1) of the said Act. The said order of the Enquiry Officer was challenged by the petitioner by filing a Miscellaneous Appeal No.16 of 2005 before the Bombay City Civil Court at Mumbai. The said Appeal was decided by the Principal Judge, City Civil Court on 1st August, 2007 and the City Civil Court dismissed the Appeal. However, in order to enable the petitioner to approach the High Court, the stay which was earlier granted, was extended. After filing of this Writ Petition in the High Court, by order dated 31st August, 2007, the said stay order was further extended and in view of the stay order, the petitioner is in possession of the said premises. 3. As per Section 105-B, wherever the Commissioner is satisfied that any person is in unauthorised occupation of any Corporation premises, the Commissioner may, notwithstanding anything contained in any law for the time being in force, by notice, served by post, or by affixing a copy of it on the outer door or some other conspicuous part of such premises, or in such other manner as may be provided for by regulations, order that that person, as well as any other person who may be in occupation of the whole or any part of the premises, shall vacate them within one month of the date : 3 : of the service of the notice. Sub-section (2) of the said section provides the procedure. In view of this provision, the notice was issued to the petitioner and it was served on the petitioner. Thereafter, the Enquiry Officer conducted enquiry and passed the order as stated earlier which was challenged before the City Civil Court. 4. The burden of proof that the petitioner is in authorised occupation of the said premises is on the petitioner. The premises are admittedly owned by the respondent-corporation and the respondent-corporation alleges that the occupation of the said premises is an unauthorised occupation. 5. It transpires from the proceedings that these premises were initially given by the respondent- corporation to Hanuman Nagar Bhadekaru Sangh and at the time of allotment of the said premises to the said Hanuman Nagar Bhadekaru Sangh, the father of the petitioner Shri Gajanan Mahadeo Desai was the General Secretary of the said Bhadekaru Sangh. Therefore, the rent receipts were issued in the name of Gajanan Mahadeo Desai in his capacity as General Secretary of the Hanuman Nagar Bhadekaru Sangh. After the death of the father of the petitioner, the rent receipts appear to : 4 : have been issued in the name of the petitioner. In view of these facts, it is certain that the tenancy, as created by the respondent-corporation, was not in favour of Gajanan Mahadeo Desai and the same cannot be inherited by the son of Gajanan Mahadeo Desai as an heir of the said Gajanan Mahadeo Desai because the tenancy was in favour of Hanuman Nagar Bhadekaru Sangh, where the father of the petitioner was the General Secretary. 6. Mr. R.A. Thorat, the learned counsel for the petitioner submitted that the said tenancy was transferred by the corporation in the name of the petitioner by accepting an ad-hoc amount. He has further pointed out from the Enquiry Report that the witness one Shri Dilipkumar Waity has stated that the said room was originally transferred in the name of Shri Mahadeo Gajanan Desai, the opponent in the enquiry proceedings by charging ad-hoc deposit in the absence of consent of the original principal tenant. Mr. Waity has produced the copy of the agreement on record. Relying upon this part of the evidence before the Enquiry Officer, Mr. Thorat vehemently contended that there is a transfer of tenancy in favour of the petitioner and, therefore, it will not be proper to say that the petitioner is in unauthorised occupation of the premises. Be that as it may, one thing is certain on : 5 : principles that the consent of the original principal tenant was not taken while transferring the tenancy in favour of the present petitioner. This court can understand if the original principal tenant was some living individual. In that case, the silence on the part of the living individual could be read in number of ways in favour of the petitioner so as to accept that there is a transfer of tenancy, but this court cannot forget that the original principal tenant was Hanuman Nagar Bhadekaru Sangh which was represented by the father of the petitioner as a General Secretary and assuming that the transfer has taken place during the lifetime of the father, then in that circumstance, the silence on the part of the father of the petitioner as a General Secretary of the said Sangh is a fraudulent silence in order to usurp the property of a legal person in favour of a living individual. Even assuming that it is a transfer after the death of the father of the petitioner, even then, the principal tenant being a Corporate body - a legal person was not in a position to obstruct and/or object the transfer of tenancy in favour of the petitioner. If such transfers are allowed to be justified then the properties of Associations can be very easily usurped by the office bearers and/or the heirs of the office bearers of such Associations. The whole claim of the petitioner in respect of transfer of : 6 : tenancy is a fraudulent claim and, therefore, the transfer of tenancy is absolutely a fraud as against the Association and the rights of the Association. 7. Under these circumstances, on the basis of such documents if the petitioner has tried to derive a title that title cannot be said to be a legal title or authorised title so as to justify the possession of the petitioner. Thus viewed, this court finds that the orders which have been consistently and concurrently passed by the Enquiry Officer and the Principal Judge, City Civil Court are just and proper and require no interference at the hands of this court. The matter is without any merit and it is, hereby, rejected. 8. At this stage, Mr. Thorat made a request for continuation of the stay order. Stay order to continue for a period of eight weeks. [S.B. MHASE, J.] [S.B. MHASE, J.] [S.B. MHASE, J.]