Ayesha Education Society Through Secretary A.S.Shaikh v. Municipal Corporation Of Grater Mumbai Through Csmt Mumbai And ORS

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION (st) NO. 26239 OF 2019 Ayesha Education Society through its Secretary Mr Anis Subhan Shaikh

...Petitioner.

vs Municipal Corporation of Gr. Mumbai & Anr.

...Respondents

.....

Mr. Chintamani Bhagoji i/b Mr R.K.Mendadkar for the Petitioner Mr. Rajesh Patil a/w Mr Vinod Mahadik and Mr Santosh Parad for the Respondent-M.C.G.M.

Mr. Machindra Bhosale, JE ( B & F) M/W Ward from the M.C.G.M. present. Mr Anis Subhan Shaikh, Trustee and Secretary of the Petitioner present. .....

CORAM : S. J. KATHAWALLA & B. P. COLABAWALLA, JJ.

DATED 03 DECEMBER, 2019.

P.C. :

By the above Writ Petition the Petitioner has impugned the communication dated 5 th August, 2019 issued by Respondent No.2 directing the Petitioner to vacate the premises i.e. Gymnasium at Rajashree Shahu Maharaj Garden, Shivaji Nagar, Govandi, Mumbai- 400 043. Admittedly the premises of the Municipal Corporation is used by the Petitioner- Trust to run Gymnasium on Leave and License basis. Admittedly, the Leave and License agreement executed on 14 th July, 2015, was only for a period of one year. Clause 44 of the Leave and License Agreement reads as under :- "44.

It is hereby agreed between the parties that on the expiry of the period of this Pg 1 of 3

agreement or on earlier revocation thereof, the Licensee shall forthwith at the cost of the Licensee remove all the belongings, furnitures/fxtures etc. of the Licensee from the said premises failing which it shall lawful for the Licensor to remove and dispose of the same at the risk and cost of the Licensee." Admittedly the Leave and License agreement has come to an end on st March, 2016 as can be seen from the recitals of the License Agreement on page No.17 of the Writ Petition. The Municipal Corporation has not taken any rent / compensation from the Petitioner after 31 st March, 2016.

Instead of vacating the premises as agreed in clause 44 of the Agreement, the Petitioner breached the same by continuing to remain in possession of the licensed premises, and more than eight months after expiry of the Leave and License agreement, made an application seeking renewal of the license for the year 2017. In the circumstances, the Municipal Corporation issued notices to the Petitioner dated 13 th November, 2018 and 15 th July, 2019 calling upon them to vacate the premises. Since the Petitioner had failed and neglected to act on the said notices, fnal notice dated 5 th August, 2019 was issued calling upon the Petitioner - trust to vacate the licensed premises within a period of 48 hours failing which they would take possession of the same.

Accordingly, on 24 th August, 2019 the Municipal Corporation has taken possession of the licensed premises and sealed the same. Mr. Anis Subhan Shaikh, Trustee and Secretary of the Petitioner Trust is present in Court today. He now states that he shall remove the equipments of the Petitioner-trust from the Gymnasium on 13 th December, 2019 at 11.00 a.m.

Pg 2 of 3

Mr. Anis Shaikh undertakes that while removing the equipments which are fxed in the wall, he shall not cause any damage to the structure including the walls. The statement/ undertaking are accepted.

4.

The Ofcer of the Municipal Corporation shall remain present in the Gymnasium premises on 13 th December, 2019 at 11.00 a.m. He shall open the seal of the Gymnasium and allow the Petitioner-Trust to remove the equipments. The Writ Petition is disposed of as dismissed. (B. P. COLABAWALLA, J.) ( S. J. KATHAWALLA, J. ) Pg 3 of 3