-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5989 OF 2002 Abdul Razzaque Abdul Rahim, ) Age 60 years, Occ. Business, Dry Fish Space No. 5, Chatrapati ) Shivaji Maharaj market, Mata Ramaba Ambedkar Marg, ) Mumbai-400 001 )..Petitioner versus 1. Head Inspector, Municipal Corporation of Gr. Mumbai, ) Market Department, Chatrapati Shivaji Maharaj Market, ) Mumbai-400 001 ) 2. Assistant Commissioner’s office (Market), ) Mahatma Jyoti Phule Market, 1st floor, D.N. Road, ) Mumbai-400 001 ).Respondents WITH WRIT PETITION NO. 5990 OF 2002 1. Mohammed Shafi Machhiwala ) Age 60 years, Occ. Business ) 2. Mohammed Irfan Mohammed Shafi Machhiwala ) Occ. Business, both carrying on business at Dry Fish Space ) No.4, Chhatrapati Shivaji Maharaj Market, ) Mata Ramabai Ambedkar Marg, Mumbai-400 001 ).Respondents Mr. A.N. Mulla for the petitioners. Mr. M.M. Malvankar for the respondents. CORAM: P.B. MAJMUDAR & R.M. SAVANT, JJ. DATE: JUNE 11, 2010. -2- ORAL JUDGMENT: (Per R.M. SAVANT, J.) These petitions filed under Article 226 of the Constitution of India take exception to the orders dated 22nd August, 2002 passed by the learned Principal Judge, City Civil Court, Mumbai and the orders of the Assistant Commissioner (Markets) dated 9th July, 2002 and 1st August, 2002 (orally conveyed). By the orders dated 22nd August, 2009, the appeals filed by the petitioners abovenamed were held to be not maintainable in view of the fact that the orders against which the appeals were filed were not appealable as they were not passed under Section 105-B of the Bombay Municipal Corporation Act, 1888, hereinafter, for the sake of brevity, referred to as “the said Act”. 2. The facts in a nutshell can be stated thus:- 3. The petitioner in Writ Petition No. 5989 of 2002 claims through one Mohammed Afzal, who was allotted dry fish space stall No.5 in Chhatrapati Shivaji Market, Mumbai. It is the case of the said petitioner that the said Mohammed Afzal executed a naukarnama in favour of the petitioner. It is further the case of the petitioner that the Municipal Corporation has accepted the petitioner as a licensee and started collecting rent from him. The petitioner in the said petition was issued a show cause notice for arrears of rent. After issuance of the second show cause notice, rent was collected from the petitioner for the period April, 1996 to December, 1996. The petitioner was again issued -3- show cause notices on 18th February, 1999 and 6th March, 1999, pursuant to which the petitioner again paid the rent and Municipal Corporation accepted the same. It appears thereafter on 9th July, 2002, the respondents have passed an ex parte order and directed the petitioner to vacate the premises. It is against the said order dated 9th July, 2002 that the petitioner filed an Appeal before the learned Principal Judge, City Civil Court, Mumbai, which appeal came to be disposed of by an order dated 22nd August, 2002 on the grounds mentioned earlier. 4. In so far as petitioners in Writ Petition No. 5990 of 2002 are concerned, the said petitioners claim to be licensees of the Municipal Corporation by virtue of an oral agreement in respect of dry fish space stall No.4 in the said Chhatrapati Shivaji Market at Mumbai. It is the case of the petitioners that the rent receipts were issued in the name of the partners of the petitioners, who thereafter left Mumbai, as a consequence of which the petitioners took over the business. It is the case of the petitioners that from 1985 to 1996, respondent No.1 was regularly collecting rent and passing receipts for the same. On 3rd July, 1996, the respondents stopped collecting rent and a show cause notice came to be issued to the petitioners. Pursuant to the said show cause notice, the petitioners offered the arrears of rent which was collected by respondent No.1 by waiving the notice. The petitioners were again issued show cause notice on 18th February, 1999 and 6th March, 1999, pursuant -4- to which again the petitioners paid the rent which was collected by the respondents. Again show cause notices came to be issued to the petitioners, pursuant to which the petitioners offered the rent. However, the same was not accepted by the respondents and ultimately on 1st August, 2002 the Rent Collector of respondent No.1 orally ordered the petitioners to vacate the suit premises. By their Advocate’s letter dated 5th August, 2002, petitioners offered the rent which was refused. Ultimately, since the petitioners were asked to vacate the premises, the petitioners preferred an appeal in the City Civil Court, Mumbai, which came to be disposed of by the order dated 22nd August, 2002 on the grounds mentioned earlier. 5. In so far as the order of the learned Principal Judge of the City Civil Court is concerned, the appeals filed by the two sets of petitioners have been held to be not maintainable on the ground that the order impugned is an administrative order and not an order passed under Section 105 B of the said Act. The learned Principal Judge has held that the order not being passed by an authority designated under Section 105-B, therefore, cannot be called an order passed under the said provision. The learned Principal Judge, therefore, held that the order against which the appeal was filed being passed by Assistant Commissioner was only an administrative order against which no appeal could lie before the learned Principal Judge, City Civil Court. In our view, considering the reasons mentioned by the learned Principal Judge, City Civil Court, -5- Mumbai, for holding that the appeals filed by the two sets of petitioners abovenamed being not maintainable cannot be faulted with. A perusal of the order impugned before the learned Principal Judge would show that the said order is in the form of an administrative order. The said order does not even refer to any provisions of the said Act. The Assistant Commissioner, who passed the said order, is not the designated authority under Section 105-B of the said Act. 6. The gravamen of the allegations against the petitioners in both petitions is that they had defaulted in payment of rent as also in so far as petitioner in Writ Petition No.5989 of 2002 is concerned, it is stated that an unauthorised person was found to be occupying the premises in question, without there being any naukarnama in place. Since the reason for eviction of the petitioners was on the aforesaid grounds, in our view, it was necessary for the Corporation to proceed against the petitioners by invoking Section 105-B of the said Act. It is an undisputed fact that the petitioners are in occupation of the premises of the Corporation. The eviction of the petitioners sought on the said grounds would, therefore, entail a particular procedure to be followed wherein the petitioners can raise their defences, if any. In our view, therefore, it would be necessary for the Corporation to have a recourse to Section 105-B of the Act for the eviction of the petitioners from the premises of the Corporation rather than by way of an administrative order. As indicated above, the said action -6- would entail a procedure to be followed wherein the petitioners can also participate. We, therefore, set aside the orders passed by the Assistant Commissioner (Markets) and confirm the orders passed by the learned Principal Judge, City Civil Court, Mumbai, in the Appeals filed by the petitioners. However, we grant liberty to the Municipal Corporation to proceed against the petitioners under Section 105-B of the said Act. We do not express any opinion as regards the merits of the petitioners’ case in the above two petitions and keep the contentions of the parties open in the matter of eviction of both the sets of petitioners. We accordingly partly allow the writ petitions by making the Rule absolute to the aforesaid extent. 7. By interim orders passed in both the above petitions the petitioners were directed to pay the applicable rent to the Municipal Corporation. The said direction would continue to operate during the pendency of the proceedings under Section 105-B of the Act, if such proceedings are initiated against the Petitioners. P. B. MAJMUDAR, J. R.M. SAVANT, J.