High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 2383 OF 2024KAJECTAN SANTAN CARNEIROVERSUSTHE STATE OF ELECTRICITY DISTRIBUTION COMPANY LTD. AND ANOTHERMr. Shaikh M. A.Jahagirdar, Advocate for the petitioner CORAM: R. M. JOSHI, J.DATE: 26th FEBRUARY, 2025PER COURT :-1.This petition takes exception to the judgment and orderdated 16th March, 2023 passed in Regular Civil Appeal No. 203 of 2017under Section 7 of the Bombay Government Premises (Eviction) Act,1955 (for short ‘the Act’) confirming order passed by the CompetentAuthority under the said Act dated 26th May, 2017 in Eviction Case No. 4of 2000, directing eviction of petitioner from the subject premises.2.Parties are referred to as ‘occupant’ and ‘MSEDCL’ for thesake of convenience.3. MSEDCL initiated proceedings being Eviction Case No. 4 of2000 before the Competent Authority under the provision of the Act forseeking eviction of the occupant from the subject premises. It is the caseof the MSEDCL that the occupant is brother of Felix Carneiro who was909.wp2383.24.odt1 of 6
Legal Reasoning
employed with MSEDCL. He retired on 31st March, 1999. The subjectpremises was allotted to the Felix as a servant quarter. Prior thereto hisfather was occupying the said premises in the capacity of the employeeand as a servant quarter. After retirement of Felix, he refused to handover the possession of the subject premises. Felix filed suit through hisbrother before the Civil Court bearing R.C.S. No. 251 of 1999, 474 of2005 and Special Civil Suit No. 107 of 2014 seeking reliefs in respect ofthe subject premises. In the said proceedings the Civil Court has heldthat the occupant has no right to hold the subject premises and that thesubject premises was allotted to Felix i.e. a brother of the occupant as aservant quarter.4.It is the case of the petitioner that his father was grantedoral gift of the subject premises by American Maratha Mission andtherefore he has become owner thereof. The Competent Authority underthe Act passed order of eviction dated 26th May, 2017. Against the saidorder, appeal preferred under Section 7 of the Act before the DistrictCourt, Ahmednagar. Principal District Judge decided the said appeal byjudgment dated 16th March, 2023 rejecting the same.5.Learned counsel for the petitioner submits that the petitionerhas raised objection with regard to the title and ownership of MSEDCL inrespect of the subject premises. It is his contention that once such issue909.wp2383.24.odt2 of 6 is raised, the Estate Officer/ Competent Authority has no jurisdiction toissue notice under the Act and to evict the occupant. To support hissubmission he placed reliance on the judgment of Hon’ble SupremeCourt in case of Kaikhosrou (Chick) Kavasji Framji Vs. Union of India andAnother (2019) 20 SCC 705.6.There is no dispute about the fact that the occupant isbrother of Felix and son of Santan. Santan and Felix were employed withMSEDCL. Eviction proceeding are filed under the Act as the occupantunauthorizedly holding the possession of the subject premises.7.When objection is raised by the occupant with regard to themaintainability of the proceedings under the Act on the ground that hehas raised issue of the title and ownership of MSEDCL in respect of thesubject premises, a reference needs to the judgment passed by CivilCourt in R.C.S. No. 251 of 1999. The issue involved before the Civil Courtwas as to whether the plaintiff i.e. occupant herein was in lawfulpossession of the subject premises and whether the MSEDCL proves thatFelix, brother of occupant was its employee and that till his retirementthe subject premises was held by him other service quarter. Whileanswering the said issues on the basis of evidence led before the Courtfollowing findings are recorded:-^^7-eh nkok feGdrhP;k ekyeRrsP;k dkMkZrhy mrkjk ikghyk909.wp2383.24.odt3 of 6 R;ke/;s :-5]42]000@& yk O;ogkjk}kjs vgenuxj bysdVzhd lIyk;daiuhdMwu dk;Zdkjh vfHk;ark egkjk”Vz jkT; fo|qr egkeaMGvgenuxj ;kauh tkxk ?ksrysyh fnlwu ;srs o fnukad 19@9@1998 pk7@12 pk mrkjk ikgrk ekydkps uko ,DlhD;qVhOg baftfu;j vlsQsjQkjP;k uksanh uqlkj fnlwu ;srs-8-eh oknh o izfroknh ;kaP;k odhykaps lfoLrj Eg.k.ks ,sdys- lOgsZ ua-6678 ;ke/;s vesfjdu ejkBh fe’ku yk ljdkjus HkkM;kus tkxk fnyhgksrh- ijarq uarj ekyeRrsP;k jftLVMZ mrk&;kojrhy ijr [kjsnhus :-5]42]000@& vgenuxj bysDVzhd lIyk; daiuhdMwu dk;Zdkjh vfHk;arkegkjk”Vz jkT; fo|qr egkeaMG vgenuxj ;kauh [kjsnh dsysyh fnlwu ;srvkgs- ;k myV izfroknh ua- 1 us fu’kk.kh 42 yk nkO;kr nk[ky dsysY;klk{khP;k ‘kiFk i=kuqlkj QsfyDl dkfuZjks gs fnukad 31@3@1969 jksthlsok fuo`Rr >kys o R;kaP;klkscrp oknh gs jkgkr gksrs o gk nkok fnukad6@6@1999 jksth Eg.kts oknhps Hkkm QsfyDl dkfuZjks ;kaP;k lsok fuo`Rrhuarj nk[ky dsysys vkgs- R;keqGs oknhpk tkxsojhy rkck gk ekydhgDdkpk o dk;ns’khj ukgh vls ‘kiFk i=kr lkafxrys- oknh R;kaP;kofMykauk vesfjdu fe’ku us rksaMh cf{klkus tkxk fnyh gksrh ;kykdkxnksi=h ok brj iqjkok ukgh R;keqGs oknh gk fnukad 7@6@1999 jksthEg.ktsp nkok nk[ky dj.;kP;k rkj[ksyk dk;ns’khj fjR;k rkck vkgs ;kxks”Vhyk dk;ns’khj vf/k”Bku ukgh- R;keqGs oknhpk iqjkok fcurksM ukgh-loZ rksaMh o dkxnksi=h iqjkok ikgkrk vls Li”Vi.ks fnlrs dh oknhps oMhylu 1955 i;Zar dkgh fof’k”V vVhaoj nkok feGdr rkC;kr gksrh- oknhpsca/kw uksdjhr vlrkauk rs ;k tkxsr rkC;kr gksrs o rs gh l/;k egkjk”VzjkT; fo|qr egkeaMG e/;s uksdjhr vlY;keqGs frp tkxk R;kauk ns.;krvkyh- oknh ,dhdMs okjlkgDdkus feGdrhpk rkck vkgs vls Eg.krks rjR;kaps ca/kw uksdjhr vlY;keqGs r;kauk DokWVZj fnyh gksrh vls Eg.krks gsEg.k.ks folaxr vkgs- Eg.kwu eh eqnnk ua- 1 fl/n u dsY;keqGs R;kps mRrjukgh vls nsr vkgs-10-eqnnk dzekad 3 %& izfroknhp ps lk{khnkj ;kauh fu’kk.kh 42 ykR;kaP;k lk{khps ‘kiFki= lknj dsys R;ke/;s R;kauh vls EgVys dh oknhpsoMhy lu 1955 lkyh e;r >kys R;kuarj R;kaph brj nksu eqys R;kiSdhQsfyDl gk lq/nk daiuhr uksdjhr vlY;kus R;kaP;k ukokus lnjps dkWVZjdeZpkjh Eg.kwu ns.;kr vkys- lu 1971 e/;s lnj daiuhdMwu ‘kklukusoht eaMGkyk laiw.kZ feGdr okj.;kps gDd fnys- R;kauh QsfyDl909.wp2383.24.odt4 of 6 dkfuZjks ;kauk nkok feGdr gh dkWVZj Eg.kwu jkg.;kl fnyh xsyh oR;kuqlkj fu;ekizek.ks ‘kkldh; HkkMs dikr dsyh xsyh- ;keqGs lnj rksaMh odkxnksi=h iqjkO;ko:u o fnukad 27@11@1975 P;k i=ko:u R;kauh gsekU; dsys dh rs egkjk”Vz jkT; fo|qr egkeaMG ps deZpkjh vkgsr oR;kauk R;k dkWVZje/;s jkgw ‘kdrkr- ;k loZ xks”Vho:u izfroknhpk iqjkokfcurksM okVrks ;keqGs oknhpk Hkkm QsfyDl dkfuZjks yk egkjk”Vz jkT;fo|qr egkeaMG ps deZpkjh Eg.kwu rs dkWVZj jkg.;kl fnys gksrs o rs lsokfuo`Rrhi;Zar R;k dkWVZje/;s jkgkr gksrs R;keqGs eqnnk dzekad 3 gs fl/ndsY;keqGs R;kps mRrj gks; vls fnys-**8.The Civil Court therefore has held that occupant has failed toprove that the subject premises was gifted by American Maratha Missionto his father. On the contrary findings are recorded by holding that thesubject premises was purchased by MSEDCL and it cannot be allotted toSantan initially and then to Felix as a servant quarter, since they wereemployed with MSEDCL.9.There is no dispute about the fact that this judgment passedof the Civil Court has not been challenged before the higher Court and assuch it has attained finality. It is thereafter two other suits being R.C.S.No. 474 of 2005 and Special Civil Suit No. 107 of 2014 were filed by theoccupant. These suits are also dismissed. For want of challenge to thesejudgments and decrees, these judgments have attained finality.10.It is thus clear from the above record that the CompetentCivil Court has held that the subject premises was allotted to the fatherand brother of the occupant as a servant quarter. Since, there is no909.wp2383.24.odt5 of 6 challenge to the said finding, the same is binding on the parties. In thelight of this fact, the judgment in case of Kaikhosrou (Chick) KavasjiFramji (supra) does not come to the aid of the present petitioner. In thesaid case it was held that the Estate Officer will have no jurisdiction toissue notice when the occupant raises bonafide claim about his right overthe premises. First of all herein this case the claim of the occupant is notbonafide and secondly, his claim is already rejected by the CompetentCivil Court. In such circumstances question of the said issue being raisedbefore Authority or even before any other Court for want of challenge tothe judgment and decree passed in the above suit is not permissible.11.There is sufficient evidence led by the MSEDCL in order toestablish that the occupant is in unauthorized occupation of the subjectpremises. The Appellate Court has also rightly taken into account thematerial on record while dismissing the appeal. This Court therefore findsno perversity in the order passed by the Courts below. As a result ofwhich, petition stands dismissed. (R. M. JOSHI, J.)ssp909.wp2383.24.odt6 of 6