1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION WRIT PETITION NO.3632 OF 2009 M/s.Mahalaxmi Tourism Development Co.Pvt.Ltd....Petitioner Vs. Pune Municipal Corporation & Ors. ...Respondents Mr.A.V.Anturkar i/b. Mr. Sugandh B. Deshmukh Advocate for the Petitioner Mr.Prathamesh Gokhale i/b. Mr. Rajesh Behere Advocate for the Respondents CORAM: SMT. ROSHAN DALVI, J. DATED: 4TH JANUARY 2010 P.C. 1.The Petitioner was put in possession of the premises of the Respondent under a contract/agreement. The agreement expired by aflux of time in 2003. The Petitioner was holding over the premises after the expiry of the agreement. The Commissioner of the Respondent No.1, pursuant to the powers to evict under Section 81(B) of the Bombay Provincial Municipal Corporation Act, 1949, passed an order of eviction and took possession of the premises in which the Petitioner was carrying on his business. The Petitioner has challenged the order essentially upon the ground that the procedure established by law under Section 81(B) of 2 the aforesaid Act has not been complied. 2.It is the contention of the Petitioner that the procedure is mandatory and for noncompliance of the procedure the order passed by the Commissioner taking over the possession is illegal and is required to be quashed. 3.Admittedly the Respondent was issued a show-cause notice on 9th October 2003 under Section 81(B) (2) of the Act. The Respondent has not been issued a notice for vacating the premises within one month of the date of the notice under Section 81(B)(1) of the Act. The Commissioner has passed the impugned order on 7th September 2007 under Section 81(B)(3) of the Act. The entire procedure under Section 81(B) is not complied. One month period for vacating the premises required to be granted upon issue of the notice is not given. 4.The Petitioner has held over the premises years after the expiry of the agreement by aflux of time without payment of the licence fee/rent/compensation payable under the contract. The Petitioner has himself shown in Annexure-A-11 the extent of licence fee/rent/compensation remaining unpaid though payable. Further amount of licence fee/rent/compensation by way of mesne profits is also required to be paid if the 3 Petitioner holds over the premises after the expiry of the agreement by aflux of time. 5.Mr.Anturkar on behalf of the Petitioner stated that under resolution of the Respondent No.1 an accelerated amount is required to be paid if the licensee, such as the Petitioner, holds over the premises after the expiry of the period of contract. He states that the Petitioner has offered to make payment at the accelerated amount. The resolution, however, is not shown to the Court. 6.The Counsel on behalf of the Respondent No.1 seriously disputes the legal rights of the Petitioner whilst the Petitioner remains in arrears of gross amounts of licence fee/rent/compensation. 7.The Petitioner would be entitled to require the Respondent to file the mandatory procedure under Section 81(B) to recover possession. However, the Petitioner can be given any relief in the Petition only upon he depositing with the Respondents the entire amount due and payable as well as the accelerated amount as per the resolution of the Respondents. 8. Hence, the following order:- 4 1.The Petitioner shall deposit with the first Respondent the entire amount of licence fee/rent/compensation payable under the contract as also the accelerated amount payable as per the resolution of the Respondent No.1 within 4 weeks from today. 2.If the Petitioner deposits such amount within 4 weeks from today the first Respondent shall handover possession of the premises back to the Petitioner. 3.The first Respondent shall be entitled to follow the procedure prescribed under Section 81(B) of the Act to recover possession back from the Petitioner thereafter. 4.If the Petitioner does not deposit with the first Respondent the entire aforesaid arrears within 4 weeks from today the Petition shall stand dismissed. 5.The Petition is disposed off accordingly. (SMT.ROSHAN DALVI, J.)