2022 Supreme(Bom) 1050

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Milind N. Jadhav, J.
Vivek Gawde – Petitioner
Versus
Municipal Corporation of Greater Mumbai & Ors. – Respondents
Writ Petition No. 5983, 5984, 5985, 5986, 5993, 5994, 5995, 5996, 5997, 5999, 6000, 6003, 6004, 6005, 6010, 6011, 6067, 6069 of 2022
Decided On : 19-07-2022

Word "may" as appearing in Section 105H should be read as "shall" and therefore there is a mandate on the Commissioner of the Corporation to make the regulations for the procedure to be followed in taking possession of any Corporation premises under Section 105B. On a plain reading of the Section it cannot be interpreted to mean that there is a mandatory direction to the Corporation and the direction contained therein is purely discretionary. Hence, in the absence of the statutory regulations and on reading the provisions of Chapter V-A, it cannot be held that in the absence of the regulations, the enquiry proceedings under Section 105B will have to be held in abeyance.

Headnote:

MUNICIPAL CORPORATION ACT - SECTION 105B - EVICTION PROCEEDINGS - STAY OF ENQUIRY - REGULATIONS UNDER SECTION 105H - FRAMING OF - WHETHER MANDATORY - HELD, NO - ENQUIRY OFFICER - POWERS OF - HELD, ENQUIRY OFFICER HAS POWERS OF A CIVIL COURT - PRINCIPLES OF NATURAL JUSTICE - HELD, TO BE ADHERED TO - POINTS FOR DETERMINATION - FRAMED.

Fact of the Case:

Petitioners, occupants/tenants and/or legal heirs/ representatives of the original occupants/tenants in respect of the premises, i.e. rooms situated at Chawl No. B/20, Mitha Nagar, near BMC Colony, Goregaon (West), Mumbai - 400 104 (for short "the said premises"). Petitioners are members of the Shraddha Co-operative Housing Society Limited, registered under the Maharashtra Co-operative Societies Act, 1960 (for short "the MCS Act"). Petitioners/their predecessors were allotted the said premises i.e. rooms in Mitha Nagar, BMC Colony on leave and license basis almost three to four decades ago. Corporation subsequently offered to change the status of the said premises into ownership basis. Petitioners continued to remain in possession of the said premises for a long period of time. Variance in the stand of the Petitioners and the Corporation pertaining to the status of the said premises. While Petitioners claim that the said premises were allotted to them with an assurance and understanding that at a later point in time the same would be converted into their names on ownership basis, however the Corporation has refuted this claim. According to the Corporation the said premises were allotted to the Petitioners for occupation only during the tenure of their service with the Corporation as employee of the Corporation and on their superannuation/retirement they/their families were bound to vacate the same. Statutory eviction proceedings for the first time under Section 105B of the said Act against all such persons residing in Municipal Colonies around Mumbai. Association was formed to challenge the action of the Corporation to initiate eviction proceedings under Section 105B of the said Act; the association filed Writ Petition No.1797 of 2009 in this Court. A Division bench of this Court (Coram: S.C. Dharmadhikari and B.P. Colabawalla, JJ.) by order dated 06.01.2017 dismissed the Association's Writ Petition. SLP against the order dated 06.01.2017 also came to be dismissed by order dated 01.05.2017. Corporation thereafter continued with the eviction proceedings under Chapter V-A of the said Act. Statutory notices were issued to the Petitioners under section 105B(1) of the said Act on 08.01.2018. On 12.08.2018, Petitioners filed their replies; on 23.01.2018 recording of statement of examination-in-chief of Corporation's witness took place; on 25.01.2018 cross-examination was conducted; on 21.01.2018 evidence of the Petitioners was recorded; Petitioners were cross-examined; arguments concluded and proceedings were adjourned for orders. On 09.02.2018, Petitioners were directed to vacate the said premises within one month. Petitioners filed a batch of 18 writ petitions in this Court assailing the orders passed by the Respondent No.2 - Enquiry Officer on various grounds. By common order dated 08.12.2021, the Petitions were disposed by setting aside the order dated 09.02.2018 and directing the Respondent No.2 - Enquiry Officer to de novo decide the eviction proceedings under Section 105B of the said Act and conclude the same in accordance with law after giving adequate opportunity to the Petitioners to show cause to the notices received by them within a period of six months from the date of the said order. Petitioners filed 3 Applications dated 10.02.2022, 21.02.2022 and 25.02.2022 to oppose the conduct of enquiry proceedings, mainly on the ground that regulations for conducting the enquiry were not framed by the Commissioner as prescribed under section 105H of the said Act. By order dated 21.03.2022 Respondent No.2 rejected the Applications and directed both parties to proceed with the enquiry and directed them to record their evidence. Petitioners challenged the order dated 21.03.2022 before the Appellate Authority i.e. the Principal Judge, City Civil and Sessions Court, Mumbai and filed an Application for stay of the eviction proceedings before the Respondent No.2. By a speaking order dated 04.05.2022 the stay Application was rejected.

Finding of the Court:

1. Word "may" as appearing in Section 105H should be read as "shall" and therefore there is a mandate on the Commissioner of the Corporation to make the regulations for the procedure to be followed in taking possession of any Corporation premises under Section 105B. On a plain reading of the Section it cannot be interpreted to mean that there is a mandatory direction to the Corporation and the direction contained therein is purely discretionary. Hence, in the absence of the statutory regulations and on reading the provisions of Chapter V-A, it cannot be held that in the absence of the regulations, the enquiry proceedings under Section 105B will have to be held in abeyance. 2. Petitioners cannot stall the enquiry proceedings on the ground that the regulations under section 105H have not been framed by the Corporation. 3. Petitioners and the Corporation both need to determine the points for determination i.e. the issues between the parties so as to enable the Enquiry Officer to permit each of the parties before the Enquiry Officer to argue their respective cases on the basis of the rights averred and denied by the parties in their respective pleadings.

Issues: 1. Whether the word "may" as appearing in Section 105H should be read as "shall" and therefore there is a mandate on the Commissioner of the Corporation to make the regulations for the procedure to be followed in taking possession of any Corporation premises under Section 105B? 2. Whether Petitioners can stall the enquiry proceedings on the ground that the regulations under section 105H have not been framed by the Corporation? 3. Whether Petitioners and the Corporation both need to determine the points for determination i.e. the issues between the parties so as to enable the Enquiry Officer to permit each of the parties before the Enquiry Officer to argue their respective cases on the basis of the rights averred and denied by the parties in their respective pleadings?

Ratio Decidendi: 1. Word "may" as appearing in Section 105H should be read as "shall" and therefore there is a mandate on the Commissioner of the Corporation to make the regulations for the procedure to be followed in taking possession of any Corporation premises under Section 105B. On a plain reading of the Section it cannot be interpreted to mean that there is a mandatory direction to the Corporation and the direction contained therein is purely discretionary. Hence, in the absence of the statutory regulations and on reading the provisions of Chapter V-A, it cannot be held that in the absence of the regulations, the enquiry proceedings under Section 105B will have to be held in abeyance. 2. Petitioners cannot stall the enquiry proceedings on the ground that the regulations under section 105H have not been framed by the Corporation. 3. Petitioners and the Corporation both need to determine the points for determination i.e. the issues between the parties so as to enable the Enquiry Officer to permit each of the parties before the Enquiry Officer to argue their respective cases on the basis of the rights averred and denied by the parties in their respective pleadings.

Final Decision: Rule made absolute in the above terms. No order as to costs. Petitions disposed of.