M/S Ashok
Caterers Vs. Municipal Corporation of Greater Bombay [1997] INSC 184 (19 February 1997)
K.
RAMASWAMY, S. SAGHIR AHMAD
ACT:
HEAD NOTE:
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 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 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.
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