PRAKASH WAREHOUSING CO. v. MUNICIPAL CORPORATION OF GREATER BOMBAY AND ANR

Citation: [1991] 1 S.C.R. 829

Court: Supreme Court of India

Bench: T.K. THOMMEN, R.M. SAHAI

Case summary

Whether the circumstances had changed or not was a question of fact and that fact has been decided in favour of the appellant by the highest fact finding authority under the Act....

Judgment text

PRAKASH WAREHOUSING CO. V. MUNICIPAL CORPORATION OF GREATER BOMBAY AND ANR. MARCH 13, 1991 [T. KOCHU THOMMEN AND R. M. SAHAI, JJ . ] Bombay Municipal Corporation Act, 1888-Sections 68 and 105A- H-Corporation premises-Eviction of unauthorised occupants- Powers of Corporation. Constitution of India 1950. Article 227-High Court-Interference with finding offact-Whether valid. _.. The original occupant of the suit godowns had on 1. 10. 1963 granted to the appellant a licence in respect of the premises and subsequently by a deed of assignment dated 13. 8. 1966 assigned all its rights, - """( title and interest in the premises in favour of the appellant. The appellant had in the meantime by agreement dated 27. 3. 1964 permitted the second respondent to store goods in the premises. The appellant thereafter requested the Corporation to recognise it as the principal occupant of the premises by means of a formal agreement.

This request was at first rejected by the Corporation on the ground that the second respondent, had been already in occupation of the premises. Subse- \_ _ quently thedCodrporation examdinefdt thet~efr~s ~tnd fcothndiCtions oft~he / agreement ate 27. . 3 1964 an a er sa 1s ymg 1 se1 e orpora mn transferred the occupancy right to the appellant on the appellant executing a formal agreement dated 17. 6. 1967. A notice dated 25. 7. 1969 terminating tenancy in terms of the agreement dated 17. 6. 1969 was served on the appellant. This was followed by an enquiry under the Bombay Municipal Corporation Act 1888 which resulted in the order of eviction dated 6. 1. 1971, the appellant being the principal tenant and the second repondent as a sub tenant.

The enquiry officer, acting as a delegate in terms ofsection 68 and exercising the power of the Commissioner of the Municipal Corporation of Greater Bombay, the first respondent under section 1958, ordered eviction of the appellant on the ground ofsub-letting the premises. The enquiry officer, on inspection, found that the second respondent was in occupation of the premises as a sub-Jessee that the appeJJant had sub-let the premises contrary to the terms of conditions of occupation and had thus become an unauthorised occupant liable to be evicted from the premises in terms of section 105B, and passed an order of eviction against the appellant. This order was, on appeal, set aside by the appellate officer, on appreciation of the evidence and the terms of the agreements, the appellate officer held that the agreement dated 27. 3.

1964, approved and recorded the assignment and transfer of the right, title and interest of the original occupant to the appellant, and recognised the appellant as the principal occupant, and that the Corporation was at all material times aware of the appellant's relationship with the second respondent and the occupation of the premises by the second respondent under the appellant. The eviction of the appellan~ solely on the ground of subletting was therefore unwarranted. The High Court in exercise of its jurisdiction under Article 227 of the Constitution held that the appellate officer was wrong in saying that the circumstances had not altered so as to warrant an order of evicti~n on the ground of sub-lease, and that the lease in favour of the appellant had been duly determined by the Corporation in terms of the contract, and the appellant having thus become an "unauthorised" occupant was as such liable to be evicted under clause (b) of sub-section (1). of section 1058.

The High Court accordingly set aside the order made by the appellate officer under section 105B and restored the order of eviction made under section lOSB by the Enquiry Officer. In the appeal to this Court it was submitted on behalf of the appellant that persons in occupation of premises under authority are not liable to be evicted otherwise than on any one of the statutorily specified grounds, and that the application of clause (b) of sub-section (1) of section lOSB, is confined to persons in unauthorised occupation, and that the appellate officer having found that the Corporation when it entered into an agreement of occupation with the appellant on 17. 6. 1967 fully aware of the terms and conditions under which the second respondent was in occupation of the premises under the appellant, the High Court was not justified in upholding the eviction of the appellant on the very same ground. On behalf of the respondent No.

I-Corporation it was submitted ~ that in view of the finding that the sub-lease granted or renewed by the appellant was contrary to clauses (6) and (2) of tpe agreement dated 17. 6. 1967 the appellant has, after the expiry of the period stipulated in PRAKASH WAREHOUSING CO. v. MUNICIPAL CORPN. 831 . ~ the notice dated 25. 7. 1969, become an unauthorised occupant, and is liable to be evicted in terms of clause (b) of sub-section (1) of section 1058. On the question: whether it is open to the Corporation to have recourse to clause (b) of sub-section (1) of section 105B to order eviction of the appellant as an unauthorised occupant, and whether clause (b) is attracted where eviction is sought to be made by determination of authority otherwise than in terms of the statute. Allowing the appeal, the Court, HELD: 1. Section 105A to section 105H of Chapter VA were inserted in the Act in 1961 to provide for speedy eviction of persons in unauthorised occupation of Corporation premises.

(839C] 2. Section 105A(d) defines 'unauthorised occupation'. This definition shows that occupation of Corporation premises without authority for such occup. ation is an unauthorised occupation. Such occupation includes· continuance in occupation by a person after the authority under which he occupied the premises has "expired" or it has been "duly determined". The definition thus includes not only a trespasser whose initial and continued occupation has never been under any valid authority, but it also includes in equal measure a person whose occupation at its commencement was under authority, but such authority has since expired, or, has been duly determined-Which means validly determined. The expiry of authority to occupy occurs by reason of the terms or conditions of occupation. On the other hand, the determination of authority to occupy to be due or valid must be founded on one of the grounds specified by the statute.

Any order of eviction on the ground of either "expiry" or "due detemination" has to be made in accordance with the procedure prescribed by the statute. [839D-H1 3. Clause (a) of sub-section (1) of section lOSB contains various grounds upon which a person is liable to be evicted. Clause (b) says that unauthorised occupation itself is a ground for eviction. Clause (c) provides that requirement in the public interest is a ground for eviction. Sub-section (2) speaks of show cause notice before an order of eviction by notice is made under sub-section (1). Sub-section (3) has conferred sufficient power on the Commissioner to enforce an order of eviction made by him under sub-section (1).

For the purpose of holding an enquiry under the Act, the Commissioner is invested with all the powers of a Civil Court (Section 105E An appeal lies from every order of the Commis- sioner under section 1058 or section 105C to the appellate officer, ':Ii_ namely, the Principal Judge of the City Civil Court of Bombay (section IOSF), whose orders are final and not liable to be "called in question in any original suit, application or execution proceeding" (Section 105G). [841E-G] 4. The satisfaction of the Commissioner, which is the condition precedent to the exercise of power of eviction by the summary procedure prescribed by the Act, may be in respect of any of the circumstances falling under clauses (a), (b) or (c) of sub-section (1) of section 105B. Clause (a) contemplates eviction of any person on any one of the grounds mentioned in sub-clauses (i) to (iv) thereof. These grounds relate only to a person in authorised occupation of Corporation premises.

They have no application to a trespasser. [841H-842B] 5. Likewise, clause (c) presumably applies to authorised occupation of Corporation premises, which the Commissioner is empowered to terminate by ordering eviction of the occupant otherwise than on any of the grounds specified under clause(~), provided the Commissioner is satisfied that the premises in question are required by the Corporation in the public interest. All that the Commissioner has to satisfy himself in a case falling under clause (c) is as regards the public interest requiring eviction. Construction of parks, playgrounds. hospitals, colleges, markets, destitute-homes and the like will indeed qualify for invoking the Commissioner'!! power under clause (c). [842C] 6. Clause (b) is a powerful weapon for eviction of an unauthori- ..... sed occupant.

This clause is applicable equally to a trespasser as it is to person whose occupation has ceased to be an authorised occupation by reason of expiry of authority in terms thereof or due determination of authority under clause (a) or clause (c) of sub-section (1) of section IOSB. [842D] 7. If a person is in occupation without authority, as in the case of trespasser, or if the authority under which a person has been in occupation has expired in terms thereof and he continues to remain in occupation of the premises, he will be liable to be evicted on the ground menti. oned in clause (b) of sub-section (1) of section 105B, but in accordance with the procedure laid down in that section and on the satisfa- -~ tion of the Commissioner, expressed by an order, as to the lack or . expiry of authority. (842E-F] H. 8. Sub-letting as such, without more, is not a ground for evktion .. under clause (a) (ii).

what attracts eviction in terms of that provision is ~ sub-letting which is contrary to the terms or conditions of occupation. l843C] In the instant case, the appellate officer has found that the occupation of the premises by the second respondent under the appellant was well-known to the Corporation; the terms and conditions of that occupation were dosely scrutinised by the Corporation before recognising the transfer of rights and interest from the previous principal oc- ,>- cupant to the appellant; and, it was on that basis and with that knowledge that the Corporation authorised the occupation of the premises by the appellant in terms of the agreement dated 17. 6. 1967. In . ,_ such circumstances, whatever right of occupation which the second -~· respondent enjoyed under the appellant must be deemed to have been ... incorporated as a term of the authority granted by the Corporation in favour of the appellant.

The appellate officer has categorically found that there was no evidence whatsoever to indicate that the circums- ~"'-( tances in which the premises had been occupied by the second respondent had' in any manner, or at any time, altered so as to affect the terms or conditions under which the appellant was recognised as the principal occupant. The Corporation is, accordingly on the facts found, estopped from having recourse to the ground falling under clause (a) (ii) of sub· section (1) of section 105B. 843D-G] ~ 9. In proceedings under Article 227 of the Constitution, the High Court was not justified in interfering with the findings of fact rendered against the Corporation by the appellate officer. l843H-844A1 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2589 of 1979. From the Judgment and Order dated 8. 8. 1977 of the Bombay High Court in Special Civil Application No. 983 of 1972. \. -' V. M. Tarkunde, Ms. S. Janani and Mrs. Urmila Kapoor for the Appellant. S. B. Bhasme U. R.

Lalit, D. N. Misra, R. A. Gupta and Ms. Shef- ').. __ ali Khanna for the Respondents. · The Judgrrient of the Court was delivered by THOMMEN. J. This appeai arises from the judgment of the Bombay High Court in Special Civil Application No. 983 of 1972 set- ting aside the order inade by the appellate officer, (the Principal Judge of the City Civil Court, Bombay) under section 105F of the Bombay Municipal Corporation Act, 1888 ("the Act') whereby he allowed the appellant's appeal against the order of eviction made against it under section 105B of the Act by the enquiry officer, acting in terms of section 68 of the Act as a delegate of the Commissioner of the Municipal Corporation of Greater Bombay, the first respondent, ("the Corporation''). By the impugned judgment, the High Court has confirmed the order of eviction made against the appellant, the principal occupant of two godowns belonging to the Corporation. the original occupant of the godowns, Glenfield & Co. , had on 1. 10.

1963 granted to the appellant a licence i::i respect of these premises and subsequently by a deed of assignment dated 13. 8. 1966 assigned all its rights, title and interest in the premises in favour of the appellant. The appellant had in the meantime by agreement dated 27 . 3. 1964 permitted the second respondent to store goods in the premises. The appellant thereafter o requested the Corporation to recognise it as the principal occupant of the premises by means of a formal agreement. This request was at first rejected by the Corporation on the ground that Ghatge & Patil (Transport) Pvt. Ltd. , the second respondent, had been already in occupation of the premises. Subsequently the Corporation examined the terms and conditions of the agreement dated 27. 3. 1964 (as renewed from time to time) upon which the second respondent was allowed to occupy the premises, and after satisfying itself as to those terms, the Corporation transferred the occupancy right from Glenfield & Co.

to the appellant on the appellant executing a formal agreement dated 17. 6. 1967. The Corporation was thus fully aware of the terms and . conditions of occupation of the premises by the second respondent, and, with the full knowledge of those terms, the appellant was recorded in the Corporation's books as the principal occupant in the place of Glenfield & Co. The second respondent was thus understood and accepted by the Corporation to be in occupation of the premises under the appellant. All this was in 1967. A notice dated 25. 7. 1969 terminating tenancy purporatedly in terms of the agreement dated 17. 6. 1967 was served on the appellant. This was followed by an enquiry under the Act which commenced in 1970 and resulted in the order of eviction dated 6. 1. 1971. The order of eviction refers to the appellant as the principal tenant and the second respondent as a sub-tenant.

The enquiry officer, acting as a delegate in terms of section 68 and exercising the power of the Commissioner under section 105B, ordered eviction of the appellant on the ground of sub-letting the premises. She held that the appellant had sub-let the premises contrary to the terms or conditions of occupation and had thus become an unauthorised, occupant liable be evicted from the premises. The enquiry officer, on inspection, found that the second respon- B, dent was in occupation of the premises as a sub-lessee. She noticed the >-- terms and conditions of the agreement dated 27. 3. 1964 under which the premises had been allowed to be occupied by the second respondent. She concluded that the appellant had, by reason of sub-letting contrary to the terms or conditions of occupation, become liable to be .... '. :>_>-evicted in terms of section 105B. Accordingly, slte passed an order of eviction against the appellant. -- This order was, on appeal, set aside by the appellate officer.

On '---- - if a tenancy is terminated in accordance with the terms of the tenancy agreement, it must be held to be duly terminated. Such a person was liable to be evicted under .. ,. _'.... the provisions of section 105B(1) of the Act. " ..... t The Corporation has indeed the power to order eviction on the ground of sub-lettin~ which is contrary to the terms or conditions of , --'-- y post. or by affixing a copy of it on the outer door or some other conspidous part of such premises, or in such other manner as may be provided for by regulations), order that ..... that person, as well as any other person who may be in occupation of the whole or any part of the premises, shall ~~ vacate them whithin one month of the date of the service of the notice.

(2) Before an order under sub-section (1) is made against any person, the Commissioner shall issue, in the manner hereinafter provided, notice in writing calling upon all persons concerned to :Show cause why an order of eviction should not be made.. The notice shall, (a) specify the grounds on which the order of eviction ).. _.. is proposed to be made, and (b) require all persons concerned that is to say, all persons who are or may be in occupation of, or claim interest in, the corporation premises, to show cause against the propsed order, on or before such date as is specified in the notice. (3) If any person refuses or fails to comply with an order made under sub-section (1), the Commissioner may evict that person and any other person who obstructs him and take posssession of the premises; and may for that purpose use such force as may be necessary.

" (emphasis supplied) Clause (a) of sub-section (1) of this section contains various grounds upon which a person is liable to be evicted. Clause (b) says that unauthorised occupation itself is a ground for eviction. Clause (c) provides that requirement in the public interest is a ground for evic" tion. Sub-section (2) speaks of show cause notice before an order of eviction by notice is made under sub-section (1). Sub-section (3) has conferred sufficient power on the Commissioner to enforce an order of eviction made by him under sub-section (1). For the purpose of holding an enquiry under the Act, the. Commissioner is invested with all the powers of a Civil Court. (section lOSE).

An appeal lies from every order of the Commissioner under section 105B or section lOSC to the appellate officer, namely, the Principal Judge of the City Civil Court of· Bombay (section lOSF), whose orders are final and not liable to be "called in question in any original suit, application or execution proceeding" (section lOSG). · The satisfaction of the Commissioner, which is the condition precedent to the exericse of power of eviction by the summary proce- dure prescribed by the Act, may be in respect of any of the circumstances falling under clauses (a), (b) or (c) of sub-section (1) of . section 105B. Clause (a) contemplates eviction of any person on any one of the grounds mentioned in sub-clauses (i) to (iv} thereof. These grounds relate only to a person in authorised occupation of Corporation premises. They have no application to a trespasser.

This is clear from the grounds themselves as well as from the wording of clause (a) which reads "that the person authorised to occupy .... ". Likewise, clause (c) presumably applies to authorised occupation of Corporation premises, which the Commissioner is empowered to terminate by ordering eviction of the occupant otherwise than on any of the grounds specified under clause (a), provided the Commissioner is satisfied that the permises in question are required by the Corporation in the public interest. All that the Commissioner has to satisfy himself in a case falling under clause (c) is as regards the public interest requiring eviction. Construction of parks, playgrounds, hospitalls, colleges, markets, destitute-homes and the like will indeed qualify for invoking the Commissioner's power under clause (c), Clause (b), on the other hand, is a powerful weapon for eviction of an unauthorised occupant.

This clause is applicable equally to a trespasser as it is to a person whose occupation has ceased to be an authorised occupation by reason of expiry of authority in terms thereof or due determination of authority under clause (a) or clause (c) of sub-section (1) of section 105B. If a person is in occupation without authority, as in the case of a trespasser, or if the authority under which a person has been in occupation has expired in terms thereof and he continues to remain in occupation of the permises, he will be liable to be evicted on the ground mentioned in clause (b) of sub-section (1) of section 105B, but in accordance with the procedure laid down in that section and on the satisfaction of the Commissioner, expressed by an order, as to the lack or expiry of authority.

It must however, be remembered that, except in the case of a trespasser or a person remaining in occupation even after the expiry of the period of authority, clause (b) can be invoked only where the Commissioner is satisfied and has so found be an order that any one of the grounds falling under clause (a) or clause (c) of subsection (i) for determination of authority has been established. In the absence of such a valid order invoking clause (a) or clasue (c), a person in occupation under authority, which has not expired, is not liable to be evicted under section 105B. We do not accept Mr. Bhasme's argument to the contrary on this point. , It is not the case of the Corporation that the authority under PRAKASH WAREHOUSING CO. v. MUNICIPAL CORPN. [THOMMEN, J. ] 843 k which the appellant has been in occupation has expired in terms thereof. That was not the basis upon which the enquiry was conducted and the order of eviction was made.

If that was the ground and that ground was rightly invoked, the position might well be different. The specific ground upon which eviction was sought, as seen in the order of the enquiry officer and as categorically found by the High Court, was one of sub-letting contrary to the terms or conditions of occupation. No other ground, as the High Court says, was relied upon by the >- Corporation. In the circumstances, the Commissioner (or his delegate) must be understood to have restricted the scope of the enquiry to the grnund falling under clause (a)(ii) of sub-section (1) of section 105B ... ,- for the purpose of invoking the summary power of eviction vested in him under the statute. Sub-letting as such, without more, is not a ground for eviction under clause (a)(ii). What attracts eviction in terms of that provision is sub-letting which is contrary to the terms or conditions of occupation.

The appellate officer has found that the occupation of the premises by the second respondent under the appellant was well-known to the Corporation; the terms and conditions of that occupation were closely scrutinised by the Corporation before recognising the transfer of rights and interest from the previous principal occupant to the appellant; and, it was on that basis and with that knowledge that the Corporation ).. _ authorised the occupation of the premises by the appellant in terms of the agreement dated 17. 6. 1967. In such circumstances, whatever right of occupation which the seconnd respondent enjoyed under the appellant must be deemed to have been incorporated as a term of the authority granted be the Corporation in favour of the appellant.

The appellate officer has categorically found that there was no evidence whatsoever to indicate 'v that the circumstances in which the premises had been occupied by the second respondent had in any manner, or at any time, altered so as to affect the terms or contitions under which the appellant was recognised as the principal occupant. The Corporation is, accordingly on the facts found, estopped from having recourse to the ground falling under clause (a)(ii) of sub-section (1) of section 105B. As stated by the High \,... _ Courtd,this:'as tdhbe otnhly ground on wff? ich ehvictionbwas sougbhl~' handd that groun , as 1oun y e appe11ate o icer, as not een esta is e . In proceedings under Article 227 of the Constitution, the High Court was not, in our view, justified in interfering wi~h the finding of 844 SUPR~MJ::: COURT REfO~TS A fact rendered against the Corporation ·by the 11ppellate officer. )J..

Accordingly, we set aside the impugned judgment of the High Court and restore the order of the appellate officer. The appeal is allowed in terms of what is stated above: The parties shall, however, bear their respective costs. B N. Y. K. Appeal allowed. . ~