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IN THE COURT OF ESTATE OFFICER AND SR. DIVISIONAL ENGINEER (Estates) WESTERN RAILWAY, MUMBAI CENTRAL, MUMBAI 400 008 (Notice under Sub-Section (1) and Clause (b)(ii) of Sub-Section (2) of Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 SUIT NO.PPE/1/2010 IN THE MATTER OF PUBLIC PREMISES EVICTION OF UNAUTHORISED OCCUPANTS ACT, 1971

The Union of India Acting Through The Western Railway Administration Section Engineer (Works) BAMY VS Bandra Gas Service Near Gaiety Galaxy & Gemini Cinema, Bandra (West)

Petitioner

Respondent

IN THE MATTER OF SYNOPSIS OF FINAL ARGUMENTS OF RESPONDENT MAY IT PLEASE YOUR HONOUR :

1.

The following arguments / submissions are without prejudice to one another.

2.

The Learned Estate Officer has to decide upon the Show Cause Notice dated 24th March 2010 issued by the Estate Officer and Sr. Div. Engineer (Estates) on the basis of the following pleadings, documents and depositions :

i)

Show Cause Notice dated 24th March 2010 (refer CP 10-11)

ii)

Petitioners list of documents dated 13th May 2010 (refer CP 42) alongwith photo copies of 5 documents produced there under (Refer CP 2038)

iii)

Respondents reply (Written Statement) to (show cause) notice dated 24th March 2010 which is duly signed and verified (refer CP 199-276).

iv)

Petitioners typed list of documents (undated) for 34 documents (refer CP 45-48) alongwith photocopies of 34 documents produced thereunder (refer CP ____ to _______)

v)

Respondents list of documents dated 29th September 2010 (Refer CP 337- 340) alongwith photocopies of original documents (refer CP 336286). Original documents have been tendered for inspection to the Petitioner and his Advocate on the same day as also during recording of depositions as per directions of Learned E. O.

vi)

Affidavit in lieu of Examination in Chief of Pramod Kumar Sharma dated 29th September 2010 (refer

CP 359-363) and his deposition in Cross Examination (Refer OSCP 13-47).

vii)

Affidavit in lieu of Examination in Chief of A. K. Arya dated 0-01-2011 / signed on 1-2-2011 and filed surreptitiously on some date in private hearing unknown to the Respondent. The same was already on record of the Honble Estate Court on 9th February 2011 (OSCP 50) and his deposition in Cross Examination (Refer OSCP 50-57).

viii)

Affidavit in lieu of Examination in Chief of Rizwan Farooqui dated 22nd February 2011 (refer CP 746835) alongwith certain documents appended thereto (Refer CP 746-761). Original documents

have been tender for inspection and inspection taken by Petitioner and his Advocates. Also on record is his deposition in Cross Examination (Refer OSCP 63-78).

ix)

Examination in Chief of Fardaus Persy Vakil recorded on 28th June 2011 (refer OSCP 82-84) and his deposition in Cross Examination (Refer OSCP 85-89).

x)

Copies of Judgments furnished by Respondent on ___________ (refer CP 382-390).

xi)

Petitioners Written Arguments dated __________ alongwith copies of two judgment (Refer CP ______ to ___________)

xii)

Respondents Synopsis of Arguments dated __________ alongwith copies of _____ judgments (Refer CP ______ to ___________)

xiii)

Certain select correspondences kept in other file which do not form part of record and proceedings of this suit.

3.

The Respondent herein below SHOWS CAUSE as to why an Order of Eviction should not be made : i) The Respondent is an IRREVOCABLE LICENSEE within the meaning of Section 60 of the Indian Easements Act, 1882 (hereinafter referred to as `the Easement Act, for the sake of brevity); ii) Section 60 of the Easement Act provides as under : 60. License when revocable - A license may be revoked by the grantor, unless (a) it is coupled with a transfer of property and such transfer is in force;

(b)

the licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution.1

iii)

The Western Railway Administration has granted land admeasuring ______ sq. mt. / _______ sq. yard as per Western Railway Administrations Plan No.DS(B)9478 / 8 F dated _______.

iv)

The following original documents are available with the Respondent :

SR. NO. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13.

DATE/ YEAR 19-04-1965 21-09-1966 24-12-1966 18/24-01-1967 15-02-1967 27-03-1967 06-11-1967 09-11-1967 28-11-1967 03-01-1968 02-02-1968 31-03-1968 09-04-1968 09-05-1968

PARTICULARS Copy of letter addressed by IGS to the Chief Engineer W. Rlys for safety zone area. Copy of application made by IGS to Div. Supdt. Bombay Divisions W. Rlys. Bombay Central. Copy of letter bearing No.W340/2/106 addressed by Div. Superintendent, Western Railway to IGS. Copy of letter addressed by IGS to The Chief Cashier, Western Railway forwarding a sum of Rs..5775.00 Copy of letter bearing W/340/2/106 addressed by Div. Superintendent, Western Railway to IGS Copy of letter addressed by IGS to Div. Superintendent, Western Railway. Copy of letter addressed by IGS to Div. Superintendent, Western Railway. Copy of letter bearing No.W/340/2/106 addressed by Div. Superintendent, Western Railway to IGS Copy of letter bearing No.W/340/2/106 addressed by Div. Superintendent, Western Railway to IGS Copy of Certificate issued by Inspector of Works, Western Railway to IGS Copy of Certificate issued by Inspector of Works, Western Railway to IGS Copy of letter addressed by IGS to the Div. Superintendent, Western Railway. Copy of letter bearing No.W 340/2/106(1) addressed by Div. Superintendent, Western Railway to IGS

PAGE NO. 1 2-3 4 5 6-7 8-9 10 11 12 13 14 15 16

CP NO

v)

The original documents as per list above are available with the Respondent. These original documents were tendered by Respondent to the Learned E. O. & the Petitioner and his Advocate for inspection on 29th September 2010. Petitioner and his Advocate has accordingly taken inspection. Besides inspection has also been granted as and when directed by the Learned Estate Officer.

vi)

Mr. Rizwan Farooqui has rendered deposition in his Examination in Chief in respect of this grant of land in his Affidavit dated 22nd February 2011. In this regard the Learned E. O. may refer to his deposition in the above refer affidavit from para 15 to 37; (Refer CP-822 808).

vii)

The Western Railway Administration has drawn up the Railway Land Plan bearing No.DS(B) 9478/8-F (Refer CP ___________).

viii)

The Respondent was required to erect and construct a work of permanent character (viz. the fence) and incur expenses in the execution thereof. In this regard refer Western Railway Administration letter dated 24th December 1966

(Refer CP-_________), Respondents letter dated 18th January 1967 (Refer CP- __________), Respondent letter dated 27th March 1967.

ix)

Thus the above mentioned facts are squerally covered under Section 60 (b) of the Easements Act.

x)

The WRs administration has transferred the said plot of land demarcated by the Western Railway Administration in its Railway Land Plan bearing No.DS(B)9478/8F unto the Respondent and such transfer is in force as on date.

xi)

In this regard Learned E. O. may peruse Divisional Superintendent (WR)s letter dated 28th November 1967 to the Respondent. By letter dated 3rd January 1968 the WRs Administrator handed over peaceful and vacant possession of Railway Land admeasuring 232 sq. yards to the Respondent (Refer CP ______ to __________). In this regard the Learned E. O. may peruse Respondents letter 31st March 1968 confirming that it has receive portion of land and that it had complied with other terms and condition (Refer CP_________).

xii)

Thus license was coupled with a transfer of property and such transfer is in force even today (without any interruption whatsoever).

4.

DOCUMENTS FILED BY THE PETITIONER :

i)

The Petitioner has only filed photocopies of five documents under list on 13th May 2010 and under another undated list of documents alongwith copies of 34 documents;

ii)

These documents cannot be read into evidence a. as Petitioner has not produced original versions of these 39 documents till date, despite demand for the same. b. Mr. P. K. Sharma has admitted in Cross Examination that Petitioner does not have the original versions of these documents as they are not available (Refer his answers to questions 10 & 11 in his cross examination). c. Neither Mr. P. K. Sharma i.e. the Petitioner nor any other responsible officer has attested / self attested the photocopies of documents produced by the Petitioner. d. Evidently, as Petitioner does not have original versions of documents produced by it none were produced for inspection by the Learned E. O. or by the Respondent.

e. Neither the Petitioner nor any other witness on behalf of the Petitioner has explained as to why the original versions of the photocopies produced by the Petitioner are not available. In such circumstances, Petitioner was require to lead Secondary evidence of the existence, condition and contends of these documents but has not done so.

iii)

The Petitioner has also filed photocopies of ________ documents alongwith Affidavit of Mr. A. K. Arya.

iv)

These documents cannot be read into evidence a. As these photocopies were produced suddenly on 9th February 2011 b. The Respondent was hence unable to deal with these documents in its reply (Written Statement) c. The Respondent was hence unable to put any question to Mr. P. K. Sharma in respect of these documents. d. Mr. Arya has not produced original versions of 3 of these 4 documents till date, despite demand for the same. e. Mr. Arya has admitted in Cross Examination that Petitioner does not have the original versions of these documents as they are not available (Refer

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his answers to questions 10 & 11 in his cross examination). f. Neither Mr. P. K. Sharma i.e. the Petitioner nor any other responsible officer has attested / self attested the photocopies of documents produced by the Petitioner. g. Evidently, as Petitioner does not have original versions of documents produced by it none were produced for inspection by the Learned E. O. or by the Respondent. h. Neither the Petitioner nor any other witness on behalf of the Petitioner has explained as to why the original versions of the photocopies produced by the Petitioner are not available. In such circumstances, Petitioner was require to lead Secondary evidence of the existence, condition and contends of these documents but has not done so.

5.

MUMBAI DATED : 17/08/2010

FOR BANDRA GAS SERVICE,

PARTNER VERIFICATION

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I, RIZWAN A. FAROOQUI, the Partner of the Respondent abovenamed, do hereby solemnly declare and state that what ever is stated in the foregoing paragraphs is true to my own knowledge and I believe the same to be true. (RIZWAN A. FAROOQUI) PARTNER OF BANDRA GAS SERVICE (RESPONDENT)
/opt/scribd/conversion/tmp/scratch6179/74311317.doc\VIKAS

IN THE COURT OF ESTATE OFFICER AND SR. DIVISIONAL ENGINEER (Estates) WESTERN RAILWAY, MUMBAI CENTRAL, MUMBAI 400 008 (Notice under Sub-Section (1) and Clause (b)(ii) of Sub-Section (2) of Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 SUIT NO.PPE/1/2010 IN THE MATTER OF PUBLIC PREMISES EVICTION OF UNAUTHORISED OCCUPANTS ACT, 1971

The Union of India Acting Through The Western Railway Administration Section Engineer (Works) BAMY VS Bandra Gas Service Near Gaiety Galaxy & Gemini Cinema, Bandra (West)

Petitioner

Respondent

IN THE MATTER OF RESPONDENTS REPLY (WRITTEN STATEMENT) TO (SHOW CAUSE) NOTICE DATED 24TH MARCH 2010 ISSUED BY THE ESTATE OFFICER AND SR. DIVISIONAL ENGINEER (Estates)

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C. R. NAIDU & CO.

Advocates for Respondents 23, Examiner Press Building, 35, Dalal Street, Fort, Mumbai 400 023

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