DASHRATH Vs. MUNICIPAL COUNCIL

JUDGEMENT

(1.) Rule. Rule is made returnable forthwith. Taken up for final hearing by consent of parties.

(2.) The Municipal Council moved the competent authority under the Bombay Government Premises (Eviction) Act, 1955, and sought eviction of respective Petitioner contending that he was in unauthorized possession, mentioning that he was inducted initially in 1995 either by oral or written agreement and there was no subsequent agreement either oral or written. They also pointed out that on 15-9-2009, Petitioners executed an undertaking and accepted that there was no agreement after 1995. The application was opposed by the present Petitioners who raised various defences and ultimately the application was allowed. This order was then questioned in statutory appeal under Section 7 by the present Petitioners before District Court at Osmanabad. Learned District Judge-4, Osmanabad, has vide judgment dated 18th January 2011, dismissed those appeals.

(3.) Adv. Mr. R.S. Deshmukh, for the Petitioners, has contended that burden was upon Respondent / Municipal Council to establish alleged unauthorized possession of the Petitioners and the Respondent did not enter into witness box or did not produce any documents. He states that even up to 1998, rent was being regularly accepted from the Petitioners without any objections and when Petitioners requested for production of certain documents from the Municipal Council to show authorized nature of possession, the Municipal Council even did not produce those documents. He has invited attention to judgment of this Court reported at, in the case of Suhash Vishwanath Kolapkar v. Assistant Collector, Ahmednagar and Anr.,2009 1 ABR(NOC) 31 (BOM.) (Aurangabad Bench), to urge that the competent authority, as also, appellate authority have not considered the challenge as raised and reasons recorded are also not in accordance with law. He also points out that the Respondent / Municipal Council was under obligation to lead evidence and to produce material and in the absence thereof, their application needed rejection. He is relying upon judgment of Hon. Apex Court , in the case of New India Assurance Co. Ltd. v. Nusli Neville Wadia and Anr., 2008 AIR(SC) 876 particularly paragraph 48, to substantiate this. The judgment delivered by me at Nagpur, reported at in the case of State of Maharashtra v. Ramu Motiram Motwani and Anr., 2006 2 BCR 795 is also relied upon to substantiate this contention. Various earlier orders passed by Civil Courts in the matter protecting possession of the Petitioners, withdrawal of an appeal filed under Order 43 Rule 1R of the Code of Civil Procedure, 1908, by Petitioners in one such matter is also pressed into service.