Full Judgment Text
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PETITIONER:
PRAKASH WAREHOUSING CO.
Vs.
RESPONDENT:
MUNICIPAL CORPORATION OF GREATER BOMBAYAND ANR.
DATE OF JUDGMENT13/03/1991
BENCH:
THOMMEN, T.K. (J)
BENCH:
THOMMEN, T.K. (J)
SAHAI, R.M. (J)
CITATION:
1991 SCR (1) 829 1991 SCC (2) 304
JT 1991 (1) 631 1991 SCALE (1)416
ACT:
Bombay Municipal Corporation Act, 1888--Sections 68 and
105 A-H--Corporation premises--Eviction of unauthorised
occupants--Powers of Corporation.
Constitution of India 1950. Article 227--High Court--
Interference with finding of fact--Whether valid.
HEADNOTE:
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. Subsequently
the Corporation examined the terms and conditions of the
agreement dated 27.3.1964 and after satisfying itself the
Corporation 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 respondent as a sub tenant.
The enquiry officer, acting as a delegate in terms of
section 68 and exercising the power of Commissioner of the
Municipal Corporation of Greater Bombay, the first
respondent under section 195B, ordered eviction of the
appellant on the ground of sub-letting the premises.
The enquiry officer, on inspection, found that the
second respondent was in occupation of the premises as a
sub-lessee that the appellant
830
had sub-let the premises contrary to the terms of the
conditions of occupation and had thus become an unauthorised
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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 appellant solely on the
ground of sub-letting 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 eviction 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 105B. 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 105B 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
105B, 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. 1-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 the agreement dated 17.6.1967 the appellant
has, after the expiry of the period stipulated in
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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 105B.
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) Section 105A(d) defines
’unauthorised occupation’. This definition shows that
occupation of Corporation premises without authority for
such occupation is an unauthorised occupation. Such
occupation includes continuance in occupation by a person
after the authority under which he occupied the premises has
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"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 determination" has to be made in accordance with the
procedure prescribed by the statute. [839D-H]
3. Clause (a) of sub-section (1) of section 105B
contains various grounds upon which a person is liable to be
evicted. Clause (b) says that unauthorised occupation itself
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 Commissioner
832
under section 105B or section 105C to the appellate officer,
namely the Principal Judge of the City Civil Court of Bombay
(section 105F), 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 (a), 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’s power under clause
(c). [842C]
6. Clause (b) 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. [842D]
7. 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
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premises, 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. [842E-F]
8. Sub-letting as such, without more, is not a ground
for eviction
833
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. [843C]
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 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 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 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 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. [843H-844A]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2589 of
1979.
From the Judgement 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.
Shefali Khanna for the Respondents.
The Judgement of the Court was delivered by
THOMMEN. J. This appeal arises from the judgement of
the Bombay High Court in Special Civil Application No. 983
of 1972 setting
834
aside the order made 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
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respondent, ("the Corporation").
By the impugned judgement, 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
in 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 thereafter requested the Corporation on the ground
that Ghatge & Patil (Transport) Pvt. Ltd., the second
respondent, had been already in occupation of 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 book 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 Commissioner
835
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 that the
second respondent was in occupation of the premises as 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,
she passed an order of eviction against the appellant.
This order was, on appeal, set aside by the appellate
officer. On appreciation of the evidence on record,
including the terms of the relevant agreements, the
appellate officer held that the agreement dated 27.3.1964,
under which the second respondent occupied the premises, had
been well-known to the Corporation, and the Corporation,
having satisfied itself as to the full implication and
significance of that occupation, approved and recorded the
assignment and transfer of the right, title and interest of
Glenfied & Co. to the appellant, and recognised the
appellant as the principal occupant. The Corporation was
thus 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. Accordingly the appellate officer held that, in
the absence of any material to show that the relationship
between the appellant and the second respondent had so
altered since the appellant’s agreement with the Corporation
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as to violate the terms or conditions of occupation, the
eviction of the appellant solely on the ground of sub-
letting was unwarranted.
The reasoning of the appellate officer thus appears to
be that the Corporation having allowed the transfer of the
occupancy right of Glenfield & Co. to the appellant with the
full knowledge of the terms and conditions under which the
second respondent was already let into the premises by the
appellant, whatever be the nature of their relationship--
whether it be a lease or licence--the Corporation was
estopped from now contending that the alleged sub-letting
was contrary to the terms or conditions of the appellant’s
occupation of the premises and that the appellant had for
that reason become liable to be evicted.
836
This is what the appellate officer stated on the point:
"...There is no allegation that after the tenancy
was transferred in the name of the applicant,with
the full knowledge and consent of the Municipal
Corporation as to the terms and conditions on which
the premises were occupied by the 2nd respondent,
there has been any change in the nature of the 2nd
respondent’s occupation of the part of the premises
and also in the terms and conditions of the
occupation. Although the subsequent agreement was
entered into between the appellants and the 2nd
respondent, it was on the same terms and conditions
as the first agreement which was produced before
the ward officer before the transfer of tenancy in
favour of the appellants ....... In this case,
therefore, even if the agreement between the
appellants and the 2nd respondent is interpreted as
a sub-tenancy agreement and under the said
agreement the appellants are said to have sublet
the premises to the 2nd respondent, the said
subletting was prior to the transfer to tenancy in
favour of the appellants and was with the full
knowledge and consent of the Municipal Corporation:
and, therefore, that cannot be considered to be
subletting in breach of the agreement of tenancy so
as to enable the Municipal Corporation to evict the
appellants on that ground..."
This is essentially a finding of fact. The order of the
appellate officer is final and is not ordinarily liable to
be called in question (see section 105G). Nevertheless,
this finding was set aside by the High Court by the impugned
judgment in exercise of its jurisdiction under Article 227
of the Constitution. The High Court held:
"......Even otherwise, in our view, respondent No.1
was liable to be evicted under section 105B(1)
clause (a) subclause (ii). We are unable to agree
with the finding given by the learned Principal
Judge that no change in the circumstances under
which the tenancy had been transferred in the name
of respondent No. 1 has taken place after the grant
of the lease and, therefore, the Corporation would
be stopped from alleging that respondent No. 1 had
sublet the premises...."
The High Court thus held that the appellate officer was
wrong in
837
saying that the circumstances had not altered so as to
warrant an order of eviction on the ground or sub-lease. The
High Court also held that the lease in favour of the
appellant had been duly determined by the Corporation in
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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 105B. The
High Court stated:
"..... if a tenancy is terminated in accordance
with 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."
The Corporation has indeed the power to order eviction
on the ground of sub-letting which is contrary to the terms
or conditions of occupation. But it cannot be gainsaid that,
when by specific agreement dated 17.6.1967 the Corporation
recognised the assignment of all rights, title and interest
made by Glenfield & Co. on 13.8.1966 in favour of the
appellant in respect of the premises in question, and thus
treated the appellant as the principal occupant, the
Corporation was fully aware of the terms and conditions of
the agreement dated 27.3.1964 under which the second
respondent was already in occupation of the premises.
Nevertheless, the Corporation entered into the agreement
dated 17.6.1967 accepting the appellant as the principal
occupant in the place of Glenfield & Co. In the absence of
any evidence to show that the relationship between the
appellant and the second respondent has since altered so as
to violate the terms of the agreement of occupation dated
17.6.1967. It is not open to the Corporation to order
eviction of the appellant on the ground of sub-letting which
is alleged to be contrary to the terms or conditions of
occupation. The High Court, in our view, wrongly reversed
the finding of fact on that question by the appellate
officer. Whether the circumstances had changed or not was a
question then is, whether, as found by the High Court,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. Is clause (b)
attracted where eviction is sought to be made by
determination of authority otherwise than in terms of the
statute?
Mr. V.M. Tarkunde, appearing for the appellant, submits
that the appellate officer having found that the
Corporation was, when it
838
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 in question under the appellant, the High Court was
not justified in upholding the eviction of the appellant on
the very same ground. The application of clause (b) of sub-
section (1) of section 105B, counsel says, is confined to
persons in unauthorised occupation. Persons in occupation of
premises under authority are not liable to be evicted
otherwise than on any one of the statutorily specified
grounds.
Mr. S.B. Bhasme, appearing for the Corporation, submits
that in view of the finding that the sub-lease granted or
renewed by the appellant was contrary to clause (6) of its
agreement dated 17.6.1967 which provided.
".....I agree that this godown will not be
assigned or sub-let or allowed to be occupied by
any person and if it or any part of it is assigned
or sub-let to any other party, I will be liable to
be ejected immediately".
and also in view of clause (2) of the said agreement which
reads:
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"Each party may terminate the tenancy at the end
of any English Calendar month by giving to the
other party one month’s notice in writing".
the appellant has, after the expiry of the period stipulated
in 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 105B of the Act.
According to Mr. Bhasme, the agreement under which the
appellant occupied the premises has expired or has been duly
determined by order of the competent authority. Further
continuance by the appellant is an unauthorised occupation
so as to attract the provisions of section 105B. Apart from
the grounds mentioned in sub-clauses (i), (ii), (iii) and
(iv) of clause (a) of sub-section (1) of section 105B, the
Corporation is also empowered under clause (b) of sub-
section (1) of that section to evict any person whose
authority to occupy has expired or has been duly determined
and who thereafter remains in occupation of the premises.
The authority to occupy, he says, is duly determined even if
the determination is sought to be founded on the ground of
sub-letting contrary to the terms and
839
conditions of occupation, or on any other ground specified
in clause (a) or clause (c) of sub-section (1) 105B, and
that ground is subsequently held to be not proved and the
order of eviction on that ground is accordingly found to be
invalid. This invalidity, according to counsel, is only as
far as it related to the alleged ground. Nevertheless, he
says, such order determining authority to occupy is
sufficiently efficacious to make further occupation
’unauthorised’, so as to attract clause (b) of sub-section
(1), provided the determination of authority can otherwise
be justified in terms of the agreement of occupation. In
such circumstances, he says, clause (b) of sub-section (1)
is a potent weapon in the hands of the Corporation.
We shall now examine the relevant provisions. Section
105A to section 105H of chapter VA were inserted in the Act
in 1961 so as to provide for speedy eviction of persons in
’unauthorised occupation of Corporation premises. Section
105A (d) defines ’unauthorised occupation’ in the following
words:
"(d) ’unauthorised occupation in relation to any
corporation premises; means the occupation by any
person of corporation premises without authority
for such occupation; and includes the continuance
in occupation by any person of the premises after
the authority under which he was allowed to occupy
the premises has expired, or has been duly
determined."
The definition shows that occupation of Corporation premises
without authority for such occupation 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
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ground of either "expiry" or "due determination" has to be
made in accordance with the procedure prescribed by the
statute.
840
Section 105B, in so far as it is material, reads:
"S. 105B (1) Where the Commissioner is satisfied-
(a) that the person authorised to occupy any
corporation premises has, whether before or after
the commencement of the Bombay Municipal
Corporation (Amendment) Act, 1960,
(i) not paid for a period of more than two
months, the rent or taxes lawfully due from him in
respect of such premises; or
(ii) sub-let, contrary to the terms or
conditions of his occupation, the whole or any part
of such premises; or
(iii) committed, or is committing, such acts
of waste as are likely to diminish materially the
value, or impair substantially the utility, of the
premises; or
(iv) otherwise acted in contravention of any of the
terms, expreses or implied, under which he is
authorised to occupy such premises;
(b) that any person is in authorised
occupation of any corporation premises;
(c) that any corporation premises in the
occupation of any person are required by the
corporation in the public interest.
the Commissioner may notwithstanding anything
contained in any law for the time being in force,
by notice (served by post, or by affixing a copy of
it on the outer door or some other conspicuous 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 within one month of the
date of the service of the notice.
(2) before an order under sub-section (1) is made
against
841
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 proposed
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 possession 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
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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
Commissioner under section 105B or section 105C to the
appellate officer, namely, the Principal Judge of the City
Civil Court of Bombay (section 105F), whose orders are final
and not liable to be "called in question in any original
suit, application or execution proceeding" (section 105G).
The satisfaction of the Commissioner, which is the
condition precedent to the exercise of power of eviction by
the summary procedure
842
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
applied 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 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’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 premises, 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 sub-section (i) for
determination of authority has been established. In the
absence of such a valid order invoking clause (a) or clause
(c), a person in occupation under authority, which has not
expired, is not liable to be evicted under section 105B. We
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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
843
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 ground 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 or 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 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
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 conditions under which the
appellant was recognised as the principal occupant. The
Corporation is, accordingly on the facts found, stopped from
having recourse to the ground falling under clause (a) (ii)
of sub-section (1) of section 105B. As stated by the High
Court, this was the only ground on which eviction was
sought, and that ground, as found by the appellate officer,
has not been established.
In proceedings under Article 227 of the Constitution,
the High Court was not, in our view, justified in
interfering with the finding of
844
fact rendered against the Corporation by the appellate
officer. Accordingly, we set aside the impugned judgement of
the High Court and restore the order of the appellate
officer.
This appeal is allowed in terms of what is stated
above. The parties shall, however, bear their respective
costs.
N.V.K.
Appeal allowed.
845
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