Full Judgment Text
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PETITIONER:
M/S ASHOK CATERERS
Vs.
RESPONDENT:
MUNICIPAL CORPORATION OF GREATER BOMBAY (BEST UNDERTAKING)
DATE OF JUDGMENT: 19/02/1997
BENCH:
K. RAMASWAMY, S. SAGHIR AHMAD
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
This special leave petition arises from the judgment
and order dated January 15, 1997 passed by the learned
Single Judge of the Bombay High Court in W.P. No.6276 of
1996.
The petitioner had a lease on monthly basis and the
respondent had offered it for five years though the
petitioner had not accepted the same. Subsequently, as found
by the as found by the courts below, the lease expired in
January 1990 by afflux of time. However, the tenancy was
determined by order dated December 24, 1994. Thereafter,
summary proceedings were initiated under Section 105-B (1)
of the Bombay Municipal Corporation "Act"] and eviction
order was passed. The petitioner filed an appeal before the
civil Court which by order dated 5th December, 1996 affirmed
the eviction order. Feeling aggrieved, the petitioner filed
the writ petition which has come to be dismissed by the High
Court. Thus this special leave petition.
Shri Bhimrao Naik, learned senior counsel for the
petitioner placing reliance on a decision of this Court in
Prakash Warehousing Co. V/s. Municipal Corporation of
Greater Bombay & Anr. [(1991) 2 SCC 304], contends that the
respondent has no power to unilaterally terminate the
tenancy, after the expiry of the period of lease, unless any
of the grounds is made out either in terms of the contract
of under the statute for ejecting the petitioner. In the
light of the law laid down in the petitioner. In the light
of the law laid down in the said decision, the eviction
order is illegal. The petitioner, cannot be treated as an
unauthorised occupant and the respondent could not avail of
the summerty remedy under Section 105-B (1) of the Act. We
find no force in the contention of Shri Naik. It is seen
that the renewal made in 1985 expired in 1990. He placed
before us a copy of the lease. Admittedly, it does not
prescribe any particular period of lease but it mentions
words "from month to month". In other words, it is a tenancy
on monthly basis, Correspondence appears to have taken place
between the parties on the fixation of the period of the
lease which ultimately did not bear fruit. Be that as it
may, the question is: whether the petitioner can be treated
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as "unauthorised occupant" within the meaning of Section
105-B (1) (b) of the Act which reads as under:
"105-B (1) where the Commissioner
is satisfied -
(b) that any person is in
unauthorised occupation of any
corporation premises: the
Commissioner may not withstanding
anything contained in any law for
the time being in force, by notice
9 served by post, or by affixing a
copy of it on the outer door of
some other conspicuous part of such
premises, on in such other manner
as may be provided for by
regulations), order 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."
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 "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.
In Prakash Warehousing Co. case (supra) relied upon by
the learned counsel, unfortunately, attention of the court
was not drawn to the non obstante clause in the main part of
Section 105-B (1) while it was required to consider the
question whether the person in occupation of the premises
after the expiry of the period of the lease or its
determination could be treated as "unauthorised occupant".
It is true that under the Transfer of Property Act or the
Rent Act, the contractual or the statute envisaged
thereunder. But the non obstante clause contained in the
main part of the Section 105-B(1) takes out the wind from
the sail of the rigour of the law and enables the
Corporation-respondent to terminate the tenancy and take
back possession. After the expiry of the lease period under
the contract or its determination, the quandrum tenant
becomes unauthorised occupant. It is also true that the
authorities cannot arbitrarily determine the right or
interest created in the person in lawful possession of the
public property except either for a public purpose or for
contravention of the condition of the contract or for
violation of the statutory provisions. The lease, unlike
licence, creates intrest in immovable property which could
be put an end to by determination in accordance with law or
contract. In this case, it is pleaded that the Corporation
needs the premises for expansion of the existing bus stand.
Under those circumstances, the determination of the lease
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and initiating summary proceedings under Section 105-B (1)
of the Act is clearly in consonance with the provisions of
the Act. Accordingly, we hold that the High Court has not
committed any error of law in coming to the conclusion that
the petitioner is an unauthorised occupant.
The special leave petition is accordingly dismissed.
Six months’ time is granted to the petitioner to vacate and
hand over possession of the premises subject to its filing
the usual undertaking within four weeks from today.