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Judgment
G.S. Godbole, J.—This Civil Revision Application was listed at serial no. 61 on today''s Board. At 11 a.m. the Advocate for the Respondent No.2, who is assignee from Respondent No.1, mentioned the matter for being taken out of turn on the ground that Respondent No.2 and the Applicants had settled the entire dispute inter se and that they wanted to file Consent Terms. In view of this, the Petition was taken up out of turn and the learned counsel for the Respondent No.2 has tendered the Minutes of Order dated 4th October, 20011 signed by Shri M.N. Baid, Education Officer, M.C.G.M. for and on behalf of the Applicant No. 2 and the Advocate for the Applicants and Mr. I.E. Makani for M/s. Redstone Realtors being Respondent No. 2 and the Advocate for the Respondent No.2. Other Applicant being Applicant No.2 and Respondent No.1 have not signed the said Consent Minutes of Order. The said Minutes of Order are taken on record and marked ''X'' for identification.
The Minutes of Order do not indicate that there is any resolution passed by the General Body of the Municipal Corporation, authorizing the Education Officer to sign the said Minutes of Order which are in fact in the nature of Consent Terms nor do they show that there is even authorization from the Municipal Commissioner to sign the said Minutes of Order. Mr. Singh however brought to my notice that the draft terms have been approved by the Additional Municipal Commissioner. Mr. Anil Singh, has placed on record a photo copy of the document, styled as "Consent Terms" between the Applicants and Respondent No.2, prepared some time in the month of August, 2011 and states that this draft has also been approved by the Dy. Municipal Architect (School Infrastructure Cell), Dy. Chief Engineer (SIC), Education Officer, Dy. Municipal Commissioner of Education dated 9.9.2011. However, since I am of the view that even Municipal Commissioner does not have authority to enter into this Compromise under the provisions of the Act, this approval of the aforesaid Officers is of no consequence.
The Respondent No.1 had filed R.A.E. & R. Suit No.3/3 of 1981 against the Applicants in the Court of Small Causes at Mumbai for possession of the entire first floor of ''A'' and ''B'' blocks of the building known as Shroffwadi, Mazgaon Bombay Tank, Mumbai under the provisions of Bombay Rent Act, 1947 on the ground of alleged arrears and on the ground of alleged reasonable and bonafide requirement. The Trial Court dismissed the suit on 26th August, 1997. As a result of which, the original Plaintiffs-M/s. Steelage Industries Ltd. filed Appeal No. 209/ 2000 in the Court of Small Causes at Mumbai. During the pendency of the Appeal, an Application was filed below Exh. 42, requesting the Court that since in the absence of any Decree for possession, the premises had been handed over to the Plaintiffs, the Appeal should be dismissed as not maintainable. Interestingly, at least from a reading of the order passed on Exh. 42, that Application appears to have been filed by the original Plaintiff who was Appellant in that Appeal. Mr. Jain states that this Application Exh.42 was not filed by the Appellant therein but was filed by the Respondents therein. He however, very fairly accepts that reading of paragraphs 2 and 3 of the said order gives an impression as if this was an Application filed by the Appellant therein and the same was opposed by the Respondent therein. Be that as it may, that order is of no consequence since even the Appellate Court had declined to record Consent Terms and the Appeal was thereafter decided on merits. The Respondents in that Appeal (Applicants herein) seem to have opposed the said Application on the ground that final and formal settlement had not been concluded and that some other issues were to be settled and five rooms were still in possession of the Defendants. By order dated 28.02.2011, which has recorded that five rooms are still in possession of the Defendants, the Court held that there is no concluded settlement which can be recorded by the Court. Consequently, the Application was dismissed.
It appears that, thereafter the present Respondent No.2 -M/s. Redstone Realtors was added as party-Appellant No.2 and claims to be an assignee of the original Plaintiff-Appellant No.1. By the impugned Judgment and Order dated 3.3.2011, the Appellate Bench of the Court of Small Causes has allowed the Appeal and has decreed the suit on the ground of default but the ground of reasonable bonafide requirement has been negatived. This order is impugned in the Civil Revision Application.
It is worthwhile to note that though the Trial Court had dismissed the suit and though there was no Decree for possession, by a procedure which is not known, as is clear from the record, the possession of 15 Rooms is stated to have been handed over to the Respondent No.2. There is nothing on record to show that before doing so, the procedure prescribed by Chapter 5 of the MMC Act, 1888 was followed. It is in these circumstances, that these Consent Terms, drafted as Minutes of Order were sought to be tendered on record and the Court was called upon to pass a decree in terms of the said Consent Terms. I had, therefore, called upon the learned Advocate for the Corporation Mr. Anil Singh and the learned counsel for the Respondent No.2 Mr. Jain to consider the relevant provisions of MMC Act, 1888 so as to find out whether such a course would be permissible and whether either the Municipal Commissioner or the Additional Municipal Commissioner or Education Officer of the Municipal Corporation would be entitled to enter into such a Consent Terms. Accordingly, they have advanced their respective submissions. With their assistance, I have considered the relevant provisions.
Section 4 of the Act defines various Municipal Authorities and the General Body of the Corporation which is called as "a Corporation" is a Municipal Authority under sub-clause (a) of Section 4. An Education Committee under sub-section (e) and a Municipal Commissioner under subsection (h) are different Municipal Authorities. Education Committee is a separate statutory authority. u/s 61 (g), providing education is one of the functions of the Corporation. Section 61 provides for the Obligatory and Discretionary Duties of the Corporation. Section 64 provides about the respective functions of the several municipal authorities and any committee appointed under Sections 39, 40, 41, 49A or 50 shall be such as are specifically prescribed in or under this Act.
7 Section 64 (2) is crucial and the same reads thus :
Section 64 (2) : Except as in this Act otherwise expressly provided, the municipal government of Brihan Mumbai vests in the Corporation.
Section 64 (3) provides as under :
Section 64(3) : Subject, whenever it is in this Act expressly so directed, to the approval or sanction of the Corporation or the Standing Committee or the Improvements Committee, or the Education Committee and subject also to all other restrictions, limitations and conditions imposed by this Act, the entire executive power for the purpose of carrying out the provisions of this Act vests in the Commissioner, who shall also, ---
(a) perform all the duties and exercise all the powers specifically imposed are conferred upon him by this Act;
It is thus clear that the Municipal Commissioner can exercise the executive powers of the Corporation for the purpose of carrying out duties provided under the said Act "subject to the approval or sanction of the Corporation or the Standing Committee or Improvements Committee or Education Committee when ever it is in the Act expressly so directed and such exercise of executive duty will also be subject to the other requirements and limitations and conditions imposed by the Act.
(Emphasis supplied).
Chapter V of the Act containing sections 87 onwards deals with the Municipal Property and Liabilities and Section 92 provides for disposal of the Municipal Property. Section 87 empowers the Corporation to acquire and hold movable and immovable property for the purpose of the Act and Section 88 provides that all immovable property will vest in the Corporation. Section 90 provides for acquisition of immovable property by agreement. The power to acquire immovable property on behalf of the Corporation is to be exercised by the Commissioner under sub-section (1) subject to the provisions of sub-section 3 and the said sub-section (3) provides for different limits of price for acquisition of such property. Section 92 deals with the provisions governing the disposal of municipal property and section 92(b) provides for limits for such disposal.
In my opinion, therefore, the scheme of the Act is very clear and what the Consent Terms styled as Minutes of the Order sought to provide namely, the surrendering of the Tenancy rights of the Municipal Corporation in respect of entire suit premises, namely, entire first floor of ''A'' and ''B'' blocks of Shroffwadi, Mazgaon, in lieu of allotment of 20 rooms having an area, admeasuring 1026.36 sq. meter built up area which will involve both surrender of tenancy rights of the Municipal Corporation which would be governed by Section 92 of the Act and the acquisition of immovable property by the Municipal Corporation which would be governed by section 87 and section 90 of the Act. Once this legal position is clear, the conclusion is inevitable that neither the Municipal Commissioner nor the Education Officer were authorise to enter into a compromise of the nature which is sought to be entered into under the alleged Minutes of the Order in this CRA. This is not a case where the assignee of the original Plaintiff who is Respondent No.2 is seeking withdrawal of this suit which would stand on an entirely different footing.
It is also necessary to consider the provisions of section 517 of the Act. The said section provides for institution etc. of civil and criminal actions and obtaining legal advice. Sub-section (g),(h) and (j) of subsection 1 of Section 517 read as under :
(g) defend any suit or other legal proceeding brought against the Corporation or against the Commissioner or a Deputy Commissioner or a municipal officer or servant in respect of anything done or omitted to be done by them, respectively, in their official capacity;
(h) with the approval of [the Standing Committee], admit or compromise any claim, suit or legal proceeding brought against the Corporation or against the Commissioner or a Deputy Commissioner or a municipal officer or servant, in respect of anything done or omitted to be done as aforesaid;
(j) with the like approval, institute and prosecute any suit or withdraw from or compromise any suit or any claim, other than a claim of the description specified in clause (f), which has been instituted or made in the name of the Corporation or of the Commissioner;
Since reliance was sought to be placed on sub-clause (h) and since Mr. Anil Singh, learned counsel appearing for the Applicants fairly stated that without the approval of the Standing Committee, a litigation cannot be compromised; I have also considered the said provisions. Sub-section (h) uses words "in respect of anything done or omitted to be done as aforesaid". Thus the word "as aforesaid" must be interpreted in the context of sub-clauses (a) to (g). Sub-clause (a) to (f) ex facie do not apply. Sub-clause (g) also does not apply, since said sub-clause contemplates suit or other legal proceeding brought against the Corporation or against the Commissioner or a Deputy Commissioner or a municipal officer or servant in respect of anything done or omitted to be done by them, respectively, in their official capacity.
The suit for possession was filed under the Rent Act and is obviously not a suit in respect of anything done or omitted to be done by the Commissioner or any other Municipal Officers.
The learned Advocates for the Applicants and Respondent No. 2 have brought to my notice the Terms of Settlement and contended that in lieu of surrendering of tenancy of 20 rooms in a building stated to be dilapidated, the Municipal Corporation will get constructed area in new building on ownership basis in the building which is to be erected after demolition of the existing structure. They also submitted that there will be no reduction in the area. However, this is a matter for the General Body of the Municipal Corporation to decide and merely on the ground that the Consent Terms may be beneficial to the Corporation as contended by the learned Advocates, this court cannot overlook the provisions of the MMC Act, 1888 and record Consent Terms which are not duly approved by the General Body of the Municipal Corporation.
As a fall out of the aforesaid discussion, though Minutes of Order tendered today will only remain part of the record; the prayer for disposal of the Civil Revision Application in terms of the Minutes of the Order is rejected. It will however, be open to the General Body of the Municipal Corporation to pass appropriate resolution and if General Body of the Corporation resolves to have the Revision Application disposed off in terms of the aforesaid Consent Terms, the parties will be at liberty to tender the Consent Terms again and the same will be considered on their own merits at the relevant time as and when the same are tendered. Rejection of the prayer for recording Consent Terms is obviously subject to the aforesaid clarification and /or with liberty as aforesaid.
Registrar Judicial is directed to forward a copy of this order to the Municipal Commissioner and the Municipal Secretary of the Municipal Corporation for their perusal and taking appropriate note of this order.
I have heard Mr. Anil Singh, Advocate for the Applicants on the admission of the CRA. Arguable questions are raised. Hence, Rule. Leave to amend prayer (a). Rule on interim relief is made returnable after two weeks. Mr. Jain, Advocate, waives service on behalf of Respondent No.2. Ad-interim relief in terms of prayer clause (b) will continue until further orders.
Service on Respondent No.1 is permitted by hand delivery. Since Mr. Jain for Respondent No.2 states that there is urgency for Respondent No.2, even Respondent No.2 can serve the Respondent No.1 with copy of the compilation of CRA as also copy of this order and even if Bhatta is paid by Respondent No.2 that can be accepted.