Bombay High Court
Beena Wife Of Decd Shri. Sumit Mitra Thru ... vs Mr. Abhay Mahadeo Thipsay , Former Judge ... on 19 October, 2018
Author: R.G. Ketkar
Bench: R.G. Ketkar
908-wp-10744-2018.odt
Shailaja
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
WRIT PETITION NO.10744 OF 2018
Beena wife of Deceased Shri Sumit Mitra & Anr. ] Petitioners
Vs.
Abhay Mahadeo Thipsay and others. ] Respondents
.....
Mr. M.M. Vashi, Senior Advocate i/b M.P. Vashi & Associates, for Petitioners.
Mr. Venkatesh Dhond, Senior Advocate a/w Rohan Kelkar, Akshay Kolse Patil,
Sham Kapadia and Rashmi Khandekar, for Respondent No.1.
....
CORAM : R.G. KETKAR, J.
DATE : 19th OCTOBER, 2018.
P.C:
Heard Mr. Vashi, learned Senior Counsel for the petitioners and Mr. Dhond, learned Senior Counsel for respondent No.1 at length.
2. This Petition challenges the;
[1] order dated 12th July, 2018 passed by the Competent Authority, Konkan Division, Mumbai (for short 'Competent Authority) (first order) [2] order dated 12th July, 2018 passed by the Competent Authority (second order) as also [3] judgment and order dated 10th September, 2018 passed by the Additional Commissioner, Konkan Division, Mumbai (for short 'Commissioner').
By the first order, the Competent Authority rejected the application made by the petitioners for leave to defend proceedings filed under section 23 of the Maharashtra Rent Control Act, 1999 (for short 'Act'). By the second order, the Competent Authority allowed the application filed under section 23 of the Act and directed the petitioners to hand over vacant and peaceful possession of 1 of 4 ::: Uploaded on - 20/10/2018 ::: Downloaded on - 22/10/2018 01:33:50 ::: 908-wp-10744-2018.odt Flat No.4 "Smriti" Building, Dr. Ambedkar Road, Khar (West), Mumbai 400 052 (for short 'suit premises'). Aggrieved by these decisions, the petitioners instituted Revision under section 44 of the Act before the Commissioner. By order dated 10th September, 2018, the Commissioner rejected the revision application.
3. The only question that arises in the present Petition is whether respondent No.1 is Government servant as contemplated by section 23 of the Act. Mr. Vashi submitted that respondent No.1 retired as Judge of Allahabad High Court and is not a government servant. He cannot file proceedings under section 23 of the Act. In support of this proposition, he relied on the decision of;
[1] Union of India Vs. Sanakalchand Himmatlal Sheth and another, (1977) 4 Supreme Court Cases 193.
[2] Hargovind Pant Vs. Dr. Raghukul Tilak, (1979) 3 Supreme Court Cases 458.
[3] Shivram Anand Shiroor Vs. Radhabai Shantaram Kowshik , AIR 1984 SC 786.
4. Mr. Vashi submitted that in case of Sankalchand Himatlal Sheth (supra), the Apex Court held that the High Court Judge is not a Government servant but he is holder of a constitutional office. There is no relationship of employer and employee subsisting between him and the Government. He is a holder of a constitutional office which has important constitutional functions and duties. The High Court Judge has no employer. He occupies a high constitutional office which is co-ordinate with the executive and the legislature. He submitted that this dictum is followed in Hargovind Pant's case.
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5. On the other hand, Mr. Dhond relied on the following decisions;
[1] Union of India Vs. Sanakalchand Himmatlal Sheth and another, (1977) 4 Supreme Court Cases 193.
[2] Samsher Singh Vs. State of Punjab and Ishwar Chand Agarwal Vs. State of Punjab, (1974) 2 Surpreme Court Cases 831. [3] Central Board of Direct Taxes Vs. Aditya V. Birla, 1988 (Supp) Supreme Court Cases 120.
[4] Union Public Service Commission Vs. Girish Jayantilal, (2006) 2 Supreme Court Cases 482.
[5] Pashupati Nath Sukul Vs. Nem Chandra and Election of India Vs. Nem Chandra Jain, (1984) 2 Supreme Court cases 404. [6] V.S. Mallimath Vs. Union of India, (2001) 4 Supreme Court Cases 31.
[7] Justice P. Venugopal Vs. Union of India, (2003) 7 Supreme Court Cases 726.
[8] Union of India Vs. Gurnam Singh (1982) 2 Supreme Court Cases 314.
He submitted written submissions. He also relied on paragraph 49 of Sankalchand Himatlal Sheth's case where the Apex Court observed that the State has three organs, one exercising executive power, another exercising legislative power and the third exercising judicial power. The High Court Judge is as much part of the State as the executive government.
6. I have considered rival submissions advanced by learned Counsel for the parties. I have also perused the material on record. A short question arises in the present proceedings viz; whether respondent No.1 who retired as a Judge of High Court is a government servant. This question goes to the root 3 of 4 ::: Uploaded on - 20/10/2018 ::: Downloaded on - 22/10/2018 01:33:50 ::: 908-wp-10744-2018.odt of the matter and the very maintainability of the proceedings instituted under section 23 of the Act.
7. In view thereof, a fairly arguable case is made out. Hence, Rule. Mr. Dhond waives service of behalf of respondent No.1. Hearing of the Writ Petition is expedited. After service is completed, liberty is reserved to the parties to apply for fixing date of hearing. During pendency of this Petition, there shall be ad-interim order in terms of prayer clause (b). Hamdast is permitted.
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