:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 9281 OF 2007 M/s.New Aram Restaurant ...Petitioners Versus The B.E.S.T Undertaking and Ors. ....Respondents ====== Mr.Naveen Parekh with Ms.Hetal Patel i/by. Ramakant Yadav, Adv. for the petitioners. Mr.V.A.Thorat, Ld Senior Counsel with Mr.A.B.Ketkar with Mr.D.G.Dhanure i/by M/s.M.V.Kini & Co. Adv. for the respondent no.1. CORAM: S.C.DHARMADHIKARI, J. DATED: 26TH MARCH, 2008. P.C. P.C. P.C. : : : 1. Rule. Respondents waive service. By consent, Rule made returnable forthwith. 2. This Writ Petition under Article 226 and 227 of the Constitution of India is directed against the order of Eviction dated 3.8.2004 passed by the competent Authority of the B.E.S.T Undertaking. The order has been passed under Section 105-B of the Bombay :2: :2: :2: Municipal Corporation Act, 1888. An Appeal was filed being Misc.Appeal No.75 of 2004 and the Appellate Authority, the Learned Principal Judge of the City Civil Court at Bombay has dismissed the same on 17.11.2007. In other words, the order of eviction is confirmed. 3. Aggrieved by this order, the present petition. 4. It is not necessary to set out the facts in complete details, inasmuch as, it is not disputed before me that the said Undertaking had through its General Manager executed a Lease Deed in favour of the partners who constituted the partnership business of M/s. New Aram Restaurant. The lease is from 1986. The Lease was in respect of a built up portion admeasuring 93.73 sq.mts (1009 sq.ft) on the ground Floor of Mahim Bus Station at Mahim, Mumbai. The lease premises are now referred to as "the said premises". 5. It is not necessary for me to advert to the various Clauses of the Lease Deed. The order of Eviction passed against the petitioners proceeds on the :3: :3: :3: basis that the lease hold property was given to the petitioners even prior to the above mentioned Lease Deed for a period of 20 years commencing from 1.4.1986. It is alleged that M/s. New Aaram Restaurant is a partnership Firm consisting of Ramesh Bhatt, Kiran Bhatt and Smt. Kamlaben J.Bhatt. The Eviction Order proceeds on the basis that the Notice dated 31.12.2002 determines this lease. The Notice, copy of which is annexed to the Writ petition proceeds to allege that on 18.3.2002 request was made by Ramesh Bhatt, one of the partners for necessary permission from the Undertaking to approach the High Court for appointment of a Court Receiver to sort out the disputes between the said Ramesh and other partners who are Family Members. The request was that a Court Receiver could be appointed after the necessary permission is granted and he can take over the Restaurant Business and manage the same. On 22.3.2002, the other partner Smt.Kamlaben requested the Undertaking not to act on any complaint received from her Son, Ramesh Bhatt. The attention of the partners was invited to Clause 2(d) read with Clause 2(b) of the Agreement dated 5.10.1990 which prohibits subletting or parting with possession in any manner :4: :4: :4: including execution of leave and license agreement, so also, a prohibition against creating a nuisance or annoyance to any of the other tenants or occupiers or to the neighbours or injury or risk to their person or property. 6. Relying upon this correspondence and complaint made to the Police Station against the said Ramesh Bhatt, the notice proceeds to allege that the said Mr.Ramesh and his mother have committed breach of the terms of the agreement by creating nuisance and annoyance in the surrounding areas and therefore the Lease Agreement stands terminated. The petitioners were called upon to Quit, vacate and hand over vacant possession of the said premises. 7. It is not necessary to refer to the proceedings which are filed by the petitioners, inasmuch as, they have come to an end because of the statement of the Undertaking that it will abide by due process of law. Further, it is not necessary also to refer to the proceedings in this court on the Original Side, inasmuch as, what is challenged before me, is the :5: :5: :5: order of eviction which has been passed under Section 105B of the Mumbai Municipal Corporation Act, 1888, 8. The petitioner through his Advocate immediately replied to the Quit Notice and while denying that there is any family dispute which can lead to such drastic action, it was specifically urged that there is no violation of any of the Clauses of the Lease-Deed. The business is being conducted by the said Kamalaben without any obstruction ,inasmuch as, there is no nuisance or annoyance being caused by conduct of the Restaurant. That apart, it was contended that the differences and disputes between the Mother and Son are domestic and insofar as, the business is concerned, the same cannot be said to have been adversely affected. The request was not to take cognisance of any of the disputes and take action against the petitioners. 9. Since the Undertaking was not satisfied with this Explanation and Reply, a Notice was issued on 6.6.2003 in the following terms :- "Shri Kiran J.Bhatt :6: :6: :6: Partner of New Aram Restaurant Mahim Bus Station, Mori Road, Mahim, MUMBAI-400 016. WHEREAS, I the undersigned am satisfied that: (i) there are disputes between the partners of the New Aram Restaurant, for the premises stipulated in the Schedules appended hereto, and (ii) you have caused nuisance to the persons in the property of the Undertaking stipulated in the Schedules appended hereto, and thereby committed breach of clause 2(n) of the agreement executed by you with the Undertaking. (iii) the request of one of your partners Shri R.J.Bhatt, for handing over the premises to the Court Receiver, committed breach of clause (2d) of the agreement executed by you with the Undertaking. (iv) and therefore the lease Agreement was determined by the BEST Undertaking vide Notice No.AGM(C)/Dy.Supdt(Estate)/88-12/P61054/2002 dated 2.1.2003. (v) and therefore, you are in unauthorized occupation of the premises described in the schedule appended hereto. AND WHEREAS, in exercise of powers conferred on me under sub-section (2) of Section 105B of the BMC Act 1888 (as amended to date), I propose to order you (as well as persons who are in actual occupation of the whole / a part of the said premises) to vacate the said premises described in the Schedule appended hereto (hereinafter referred to as ‘the proposed order’). NOW, THEREFORE, as required by the provisions of sub-section 2 of the said section 105 B, I :7: :7: :7: call upon you, as well as all persons who are in actual occupation of the whole/a part of the said premises) to tender an explanation and to produce evidence, if any and to show cause within fourteen days from the date service of this notice why ‘the proposed order’ should not be made. SCHEDULE SCHEDULE SCHEDULE Premises admeasuring 1009 sft. (93.73 sqm) at Ground Floor at Mahim Bus Station, Mahim, Mumbai-400 016. sd/- (S.A.Nene) Dy.Superintendent (Estate) & Competent Authority " 10. Thus, terming the occupation of the said premises as Unauthorised, the Undertaking proceeded under Section 105 B. Section 105 B of the Mumbai Municipal Corporation Act confers powers to evict person from Corporation premises. Section 105 B(1) contemplates satisfacation of the Commissioner on existence of the grounds and reasons either under Sub-clause (a), (b) or (c). Thus, each are distinct and independent. The Notice in this case has been issued by the Deputy Superintendent (Estate) & :8: :8: :8: Competent Authority. The Notice proceeds as above and thereafter Sub-section 2 mandates that the ground on which the order of eviction is proposed to be made shall be specified. The Notice has to be served in the manner set out in sub-section 2 of Section 105 B. The opportunity is contemplated of permission to put in a a written statement and documents by the person to whom the Notice is addressed and that person is entitled to appear before the Commissioner through Advocate or pleader. The provisions of Section 105 B have been subject matter of several Decisions of the Hon’ble Supreme Court and this court. The said principles need not be referred to, save and except, one Decision of the Hon’ble Supreme Court reported in AIR 1974 SC page AIR 1974 SC page AIR 1974 SC page 2009 2009 2009 M.Chhagganlal vs. Greater Bombay Municipality. M.Chhagganlal vs. Greater Bombay Municipality. M.Chhagganlal vs. Greater Bombay Municipality. 11. After the Notice was issued to the petitioners they replied the same on 15.7.2003 and raised several contentions including that the lease is valid till 2006, there is no violation of the Lease-Deed or any Clauses thereof. Each of the grounds that are set out in the Notice are not enough to pass an order of eviction and therefore the proceedings be dropped. :9: :9: :9: 12. A hearing was held before the Competent Authority on several dates and the petitioners were represented by their Advocate. The competent Authority has relied upon the grounds in the Notice, the Clauses in the Lease Deed as is evident from a perusal of the order of the Competent Authority and thereafter referred to the entire record. The basis of the Order of eviction is satisfaction of the Competent Authority and in the instant case it is that the alleged disputes amongst the partners of New Aram Restaurant are continuing. One of the partners is still desirous of approaching the court and handing over the premises to Court Receiver. It is in such circumstances the Authority concludes that the partners of the Restaurant have committed breach of the terms of the Agreement. The breach is not remedied so far. It is not advisable to allow the partners to continue to run the business in the premises. In order to safeguard the interest of the Undertaking and the dispute yet to be sorted out, so also, on account of termination of lease of the Lease, the Restaurant is in unauthorised occupation of the said premises and therefore liable to be evicted :10: :10: :10: from the same under Section 105 B of the Mumbai Municipal Corporation Act. 13. Aggrieved by this order of the competent Authority, an Appeal was preferred before the Learned Principal Judge, of the City Civil Court at Mumbai. The order was stayed initially and thereafter the Appeal was placed for hearing and final disposal. In a short and cryptic order, the Learned Principal Judge dismissed the Appeal. The Learned Judge has merely relied upon the fact that Section 106 of the Transfer of Property Act enables the Undertaking to terminate the Lease and upon such Notice being issued and duly received, so also, not complied with, the Undertaking can proceed under Section 105 B of the Act and pass an order of Eviction. Merely because no reasons are assigned in the Notice to Quit, that action is not bad, inasmuch as, no reasons are required in a Notice under Section 106 is the conclusion. Reliance is placed by the Appellate Authority on the judgment of the Supreme Court in the case of Jivandas V/S. LIC reported in 1994 (SUPP) 6 SCC page 694. Further reliance was also placed upon the Decision of the Supreme Court in the :11: :11: :11: case of Ashoka Caterers V/s. Mumbai Corporation of Greater Bombay reported in (1997) 9 SCC page 220. According to the Learned Principal Judge, the period of lease having expired, the petitioner becomes an unauthorised Occupant by efflux of time and /or after termination of their tenancy. Hence, the order of eviction does not require any interference. Thus, the conclusion that is drawn is that Section 106 of the Transfer of Property Act being resorted to, the lease terminated, the Undertaking could have proceed to evict the petitioners. 14. It is this conclusion which is assailed by the petitioners before me. During several hearings, the submissions have been canvassed and one of the contention of Mr.Parikh appearing for the petitioners is that the order of eviction suffers from error apparent on the face of the record. He submits that the Appellate Authority was considering the Appeal from an order of eviction which is an drastic order. The order of eviction proceeds on the basis of a Notice to Quit dated 31.12.2002. That Notice to Quit alleges violation of the Clauses of the lease Deed. That :12: :12: :12: Notice to Quit does not determine the lease on the ground that the same has expired by efflux of time. The specific case is of violation of the terms and conditions of the lease and more particularly Clause 2(d) and Clause 2(h). In such circumstances and when the order of eviction is based upon only the satisfaction of the Competent Authority that there is violation of the terms and conditions, then, it was not open for the Principal Judge to have carved out another ground to support the eviction of the petitioners from the said premises. There was no case of any termination by account of efflux of time. Even the Notice does not proceed on the basis that the lease has come to an end, after 20 years automatically and therefore the occupation of the premises is unauthorised. In such circumstances, terming the petitioners occupation as unauthorised and evicting the petitioners from the said premises clearly violates all the statutory provisions and Article 14 of the Constitution of India. The orders of eviction are grossly unfair, unreasonable and unjust. A Public Body cannot resort to evict the petitioners at its whims and fancies. :13: :13: :13: 15. That apart, Mr.Parekh’s submission is that the Learned Judge has ignored the material that was produced with regard to the renewal o the lease. Mr.Parekh has tendered a compilation which contains the correspondence between the parties on the subject of renewal of lease. Mr.Parekh, contends that as early as on 4.12.2005 an Application was made by the petitioner for renewal of the Lease. A reply thereto was given on 24.4.2006 by the B.E.S.T. forwarding therewith a draft of the Undertaking to be given by the Lessees. There is correspondence on this issue commencing from 4.5.2006 and ending on 12.11.2007. Even thereafter there is an attempt to discuss and sort out the entire issue by negotiations. Mr.Parekh submits that the if the petitioners are indeed unauthorised Occupants and have no right to occupy the premises or their occupation is illegal after the Lease was determined by efflux of time, then, it was not necessary for a public body to have entered into such correspondence. Not only the Undertaking proceeded to entertain the Application but also considered it. There are without prejudice proposals. Merely because the petitioner is :14: :14: :14: not agreeable to exorbitant or market rate to be paid as a lease rent, does not mean that the Undertaking can proceed to evict it and by resorting to Section 105 B of the MMC Act. Reliance is placed by him on the correspondence and it is urged that the order of the Principal Judge suffers from total non-application of mind and deserves to be quashed and set aside on this ground as well. 16. Mr.Thorat, Learned Senior Counsel appearing for the Undertaking has urged that the Transfer of Property Act applies to the lease and relationship. The petitioner is neither a Tenant holding over nor a Tenant at sufferance. There is no Clause for renewal of the lease Deed. The Notice which was issued to determine the lease was challenged in a suit and in the light of the statements recorded, the suit came to be disposed off. Thereafter the action was challenged by filing a Suit on the Original Side of this court being Suit No.1815 of 2007. The request therein was that the petitioners have received a Notice dated 31.12.2002 determining the Lease. The petitioners pointed out that the eviction proceedings are pending. They do not :15: :15: :15: dispute that the Lease expired by efflux of time on 31.3.2006 and that the request in the suit was to renew the Lease. However, the interim proceedings in this Suit have come to an end, though, the Suit is pending. If the petitioners now desire that the Undertakings representations and assurances need to be adhered or complied by it, then, the remedy of the petitioners is to file a suit for specific performance. In such circumstances, the orders of eviction based upon the Notice to Quit dated 31.12.2002 requires no interference by this court in its extra ordinary jurisdiction. The said jurisdiction is discretionary and equitable. it is not as if the petitioners are not to be blamed,inasmuch as, their conduct is such that they themselves are responsible for the Lease not being renewed. The petitioners were required to bring signatures of all the partners. They have to abide by the prevalent policies and only then the lease could be renewed. Therefore on Issues which are not germane and on points which were not canvassed before the Competent authority and the Principal Judge, the Orders under challenge cannot be set aside. This is not a court of further Appeal and hence the Writ Petition should be :16: :16: :16: dismissed. 17. When this matter was placed before m earlier, I had heard both sides at length, an order was passed on 20.12.2007, so also, on 31.1.2008. My attention was invited by the Respondents to a compilation of documents which was tendered by them. It was stated before me that the entire Bus Depot at Mahim is being redeveloped. The existing structure would be pulled down and the property would be redeveloped. My attention was invited to the Tender Documents and the re-development scheme. The Scheme envisages that a new Bus Station will be constructed with separate departmental office on the first Floor at new location. The drawing was also shown to me. There is a proposal to construct separate structure for commercial utilisation at the place of existing Bus-Station Building. My order passed on 31.1.2008 records that :- ". The Tender Notice records that part portion of ground floor admeasuring 118 sq.mts (built-up) of the existing Bus-Station building has been allotted to M/s. New Aaram Restaurant by the B.E.S.T.Undertaking. Therefore, the Developer is required at its cost to accommodate M/s. New Aaram Restaurant by allotting the same built-up area on the :17: :17: :17: ground floor of the new structure under commercial exploitation. the Developer should also make suitable alternative arrangement at his cost to accommodate the said Restaurant in the same plot till completion of construction of new commercial structure by carrying out the work in suitable phases and thereafter accommodate the same in the said commercial building. 2. My attention is also invited to the terms and conditions of contract wherein the B.E.S.T has outlined the scope of the contract. " 18. It is in such circumstances, that time was taken to file an Affidavit setting out the details of the proposed development at Site and whether M/s. Parshwanath Developers Ltd have accepted the terms and conditions. Beyond making oral statement and tendering an Compilation, no affidavit has been filed. Resultantly the matter proceeded on the basis that both sides shall rely upon the compilation. Section 105 B of the MMC Act reads thus :- "105 "105 "105 B. Power to evict person from B. Power to evict person from B. Power to evict person from Corporation Corporation Corporation premises. premises. premises. -(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- :18: :18: :18: (i) not paid for a period of more than two months, [the rent, taxes, fees or compensation] lawfully due from him in respect of such premises; or (ii) sub let, ***** 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, express or implied, under which he is authorised to occupy such premises; (b) that any person is in unauthorised 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 the regulations), order that that person, as well as any other person who may be in the occupation of the whole or ay 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 any person, the Commissioner shall issue, in the manner hereinafter provided, a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made. The notice shall,- :19: :19: :19: (a) specify the grounds on which the order of eviction is proposed to be made, and (b) require all persons concerned,t hat 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. If such person makes an application to the Commissioner for extension of the period specified in the notice, the Commissioner may grant the same on such terms as to payment and recovery of the amount claimed in the notice, as he deems fit. Any written statement put in by any person and documents produced, in pursuance of the notice, shall be filed with the record of the case, and such person shall be entitled to appear before the Commissioner by advocate, attorney or pleader. The notice to be served under this sub-section shall be served in the manner provided for the service of a notice under sub-section (1); and thereupon, the notice shall be deemed to have ben duly given to all persons concerned. (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. (4) The Commissioner may, after giving fourteen clear days notice to the person form whom possession of the corporation premises has been taken under sub-section (3) and after publishing such notice in the Official Gazette and in at least one newspaper circulating in the locality, remove or cause to be removed, :20: :20: :20: or dispose of by public auction any property remaining on such premises. Such notice shall be served in the manner provided for the service of a notice under sub-section (1). (5) Where the property is sold under sub-section (4), the sale-proceeds shall, after deducting the expenses of sale, be paid to such person or persons as may appear to the Commissioner to be entitled to the same. Provided that, where the Commissioner is unable to decide as to the person or persons to who the balance of the amount is payable or as to the apportionment of the same, he shall refer such dispute to a civil court of competent jurisdiction, and the decision of the court thereon shall be final. (6) If a person, who has been ordered to vacate any premises under sub-clause (i) or (iv) of clause (a) of sub-section (1), within one month of the date of service of the notice, or such longer time as the Commissioner