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2023 Supreme(Online)(Bom) 128
2023:BHC-AS:1882
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 13068 OF 2019
WITH
INTERIM APPLICATION NO. 06 OF 2020
M/s. Venus Rubber Works
A firm registered under the provisions
of the Indian Partnership Act, 1932
having registered address at Shop No.2,
Parekh Estate, Building No.43, JSS Road,
Kennedy Bridge, Opera House,
Mumbai – 400 004.
Through its partner Mr. Nilesh Suresh Oza. .. Petitioner
Versus
1. Municipal Corporation of Greater Mumbai
a body incorporated under the provision
of Mumbai Municipal Corporation Act,
having its registered office at Mahapalika
Bhavan, Mahapalika Marg,
Mumbai – 400 001.
2. Jeetendra Ghadge
Roon No.4, Ground Floor,
Parekh Estate Building No.43,
RSS Road, Kennedy Bridge,
Opera House, Mumbai – 400 004. .. Respondents
• Mr. Krishna K. Holambe Patil a/w. Mr. Vishal G. Shirsat, Advocates for Petitioner.
• Ms. Dhruti Kapadia a/w. Mr. Om Suryawanshi, Advocates for Respondent No.1 – Corporation.
• Mr. Jeetendra Ghadge, Respondent No.2 – in person present.
• Mr. Rajesh Parmar, Senior License Inspector ‘D’ Ward present.
CORAM : MILIND N. JADHAV, J.
RESERVED ON : DECEMBER 23, 2022.
PRONOUNCED ON : JANUARY 11, 2023.
For the Appellants/Petitioners: Mr. Krishna K. Holambe Patil a/w. Mr. Vishal G. Shirsat
For the Respondents: Ms. Dhruti Kapadia a/w. Mr. Om Suryawanshi
The court ruled that a tenant cannot be compelled to provide documents (NOC from landlord) that are unattainable due to ongoing litigation, reinforcing the validity of longstanding occupancy rights.
Headnote:(A) Article 227 of the Constitution of India - Renewal of Trade License - Petitioner firm established in 1959 and holds a license since 1970. The Municipal Corporation insists on documents that are outside the tenant's control, notably the NOC from the landlord, which is difficult to obtain amidst ongoing litigation. Court observed that tenant's long-standing possession is established and that the Corporation's demands lack justification due to pending legal dispute. (Paras 1, 18, 21, and 22)
(B) Administrative Law - The interference of the administrative authority must ensure that statutory requirements are justifiable and adhere to established legal precedents, especially in matters affecting possession rights. (Paras 18 and 21)
JUDGMENT:
1. By the present Writ Petition filed under Article 227 of the Constitution of India, Petitioner has prayed for the following reliefs:-
“(b) This Hon’ble Court may be pleased to call for the recording and proceedings of L.C. Suit No.402 of 2018 pending before the Hon’ble City Civil Court at Bombay and after going through the legality and validity of the same be pleased to quash and set aside the order dated 16th September 2019 passed below Exhibit “7” - Application therein and further be pleased to allow the said Application vide Exhibit “7” and direct Respondent No.1 to not to call upon the Petitioner to produce the documents namely (i) NOC from the landlord, (ii) property UID number and (iii) latest property tax bill and without calling the Petitioner to produce these documents, the Trade License bearing No.761091838 (Old License No.D58686) of the Petitioner be renewed.”
2. Petitioner is a registered partnership firm since 1959. In the year 1969, Petitioner became sub-tenant of the suit shop viz. Shop No.2 situated on the ground floor, Building No.43, JSS Road, Kennedy Bridge, Opera House, Mumbai. The partnership of Petitioner after a series of events between 1969 and 2015 was reconstituted and presently Nilesh Oza, Jyotiben Oza (mother) and Rita Oza (wife) are partners of Petitioner firm. Petitioner carried on business of auto spare parts in the suit shop.
3. Record indicates that Shri. Parekh Estate Pvt. Ltd. is the landlord of building No.43. Record further indicates that one Mr. Baburao Ghadge was the tenant of the suit shop. However, since Mr. Baburao Ghadge sublet the front portion of the suit shop to Petitioner and occupied the rear portion of the suit shop, the landlord filed R.A.E. Suit No.2070 of 1970 against Mr. Baburao Ghadge and Petitioner seeking their eviction from the suit shop. After trial, the suit came to be dismissed by Judgment and Order dated 05.03.1999. Appeal before the Appellate Court also came to be dismissed. The learned Small Causes Court held that Petitioner was not in unlawful possession of the suit shop.
4. The issue in the present Petition however pertains to renewal of license of Petitioner to carry on its business of rubber goods from the suit shop. Originally Petitioner obtained a license from the License Department of Municipal Corporation of Greater Mumbai i.e. Respondent No.1 (for short "Corporation") on 05.01.1970. The said license was renewed and revalidated regularly until 31.12.2014 by the Corporation.
5. Sometime in the year 2013 Respondent No.2, a neighbour of Petitioner filed a complaint with the Corporation stating that Petitioner's possession of the suit shop is illegal and the rubber goods sold therein are hazardous. Acting on this complaint, Corporation issued a notice dated Nil December 2013 to Petitioner and called upon the Petitioner to produce the latest rent receipts and no-objection certificate from the landlord. The notice was replied by the Petitioner, inter alia, stating that Respondent No.2 was harassing the Petitioner.
6. Corporation issued fresh notice dated 16.01.2014, inter alia, calling upon the Petitioner to produce original rent receipt for verification. Respondent No.2 filed its reply to the same once again stating that the Petitioner was harassed by officers of the Corporation at the instance of Respondent No.2.
7. By letter dated 10.04.2014, Corporation cancelled the license of the Petitioner in view of non submission of the document regarding possession of Petitioner in respect of the suit shop. Petitioner approached the Corporation and after hearing the Petitioner, cancellation of license was revoked and it was renewed on 25.07.2016 for a period of one year w.e.f. 01.07.2016.
8. On 14.03.2016, Petitioner informed the Corporation about the death of his father (partner) and formation of new partnership. Petitioner also enclosed alongwith the letter the old partnership deed, the new partnership deed, Form ‘E’ of Ind
