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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Ranjit More, Anuja Prabhudessai, JJ.
Balwant Chatrabhuj Thakkar & Ors. - Petitioners
Versus
Commissioner, Municipal Corporation of Greater Mumbai & Ors. - Respondents
Writ Petition Lodging Nos. 1990 , 1951, 1953, 1954, 1956, 1960, 1961, 1962, 1963, 1964, 1965, 1966, 1967, 1970, 1976, 1978, 1993, 1998, 2002, 2004, 1994, 1995, 2032, 2017, 2018, 2019, 2020, 2021, 2077, 2084, 2078, 2079, 2082, 2083, 2075, 2076, 2074, 2036, 2205, 2206, 2230, 2232, 2237, 2255, 2409, 2411 of 2016; Writ RIT Petition Lodging No. 1952 of 2016
Decided On : 27-10-2016
In the instant case, the dispute is in respect of the shops which are covered by the definition of `building`. Hence the said decision in BPCL (supra) is not applicable to the facts of the case. The said shops are situated inside the subway at CST and Churchgate Railway Station, belong to and vest in the respondent Corporation. The petitioners have placed on record the layout plan, a perusal of which reveals that the aid shops were constructed at the time of construction of the subway. The said shops were not constructed on the land, which forms part of the subway over which the public had right of way but the same are abutting the subway. In the light of above, these shops cannot be considered as part of the subway or the public street but are "Corporation premises" within the meaning of Section 105-A(b) of the NMC Act. Consequently, the decisions in BPCL v. MCGM as well as Steelmax (supra) are not applicable to the facts of the case.
Mumbai Municipal Corporation Act, 1888 - Section 105-A(d)-Unauthorised occupation.-Term "unauthorised occupation" includes persons who continue to occupy corporation property after authority under which he occupied premises has expired or determined.
Corporation had inducted the petitioners in the said shops with due process of law. Thus the occupation of the premises at its very commencement was under authority, but such authority has since expired and the petitioners continued to be in possession of the Corporation premises even after the expiry of the authority. The petitioners are therefore in unauthorised occupation of the Corporation premises, which are abutting the subway/public street.
Mumbai Municipal Corporation Act, 1888 - Sections 105-A(d) and 105-B(2)-Eviction of unauthorised occupants.-Corporation, seeking eviction of unauthorised occupants from its premises must follows procedure prescribed under Section 105-B(2) of Act.
In the instant case the Corporation has sought to evict the petitioners, who are in possession of the premises for a period of over 10 years, without taking recourse to the remedy available under the statute and without following due process of law. The action of the Corporation, a statutory body, is not in consonance with the procedure prescribed by the statute. The action of the Corporation being arbitrary, in violation of principles of natural justice and contrary to the statutory provisions, the petitioners were justified in invoking the writ jurisdiction of the Court.
Under the circumstances and in view of discussion supra the petitions are allowed. The impugned notices are quashed and set aside. Court, however, make it clear that this order shall not preclude the Corporation from evicting the petitioners from the subject premises by following due process of law.
Anuja Prabhudessai, J.
Rule. Rule made returnable forthwith with consent of parties.
2. The Petitioners have filed the present writ petitions for quashing and setting aside the notices issued by the Respondent No.2 – Assistant Municipal Commissioner (Market) directing each of the Petitioners to pay the arrears of compensation charges and hand over vacant and peaceful possession of the respective shops within thirty days from the date of receipt of the notice.
3. Brief facts giving rise to these petitions are as under:-
In the year 1998 the Municipal Corporation of Gr. Mumbai (for short Corporation), Respondent No. 3 herein, had called for tenders for allotment of shops situated inside the Subway at Chatrapati Shivaji Terminus (CST) Railway Station and Churchgate Railway Station, Mumbai. The Petitioners' were successful bidders and each one of them was allotted a shop upon execution of leave and license agreement. The tenure of the said agreement for the first block period was 10 years and each subsequent block period was of 5 years.
4. The petitioners were put in possession of the respective shops within CST and Churchgate subway and they have been conducting their business in the said shops. The Corporation had extended the initial period of licence till the year 2011. Though there was no renewal of the agreement for the subsequent period, the Petitioners continued to be in possession of the subject shops on payment of compensation from time to time .
5. By the impugned notices, the Petitioners have been intimated that the respondent no.3 Corporation proposes to use the space abutting the highway for putting information kiosk, video walls for dissemination of information of civic related issues and for other civic amenities for the benefit of general public/pedestrians. The Petitioners were therefore called upon to pay the arrears of compensation charges and to vacate and hand over possession of the said shops.
6. Mr. Anturkar, the learned Senior Counsel appearing for the Petitioners submitted that MCGM has no powers to evict the petitioners from the subject shops without resorting to the procedure envisaged under section 105B of the Mumbai Municipal Corporation Act, 1888 [for short "the MMC Act"]. Shri Anturkar, the learned Sr. Counsel contends that the notice of eviction is arbitrary, in violation of principles of natural justice and without authority of law.
7. Mr. Sakhare, the learned Senior Counsel appearing for Corporation has submitted that the subject shops are in a subway, which is a public street within the meaning of Section 3(x) of the MMC Act. He therefore contends that the said shops are not covered under the definition of 'Corporation Premises' within the meaning of Section 105A (b) of MMC Act and hence the provisions under Section 105B are not applicable. He has relied upon the decision of Division Bench of this Court in BPCL v. MCGM [1984 Mh.L.J. 865], wherein it was held that underground petrol tank is not a building within the meaning of Section 3(a) of Bombay Municipal Corporation Act. The learned Sr. Counsel Shri Sakhare has relied upon the decision in Steelmax v. MCGM [1990 (2) Bom C.R. 151] wherein the single judge of this court has held that pole-ads are not premises and that upon termination of the agreement, the Commissioner has power to remove such pole-ads and clear the obstruction on public streets.
8. Mr. Sakhare, the learned Senior Counsel invited our attention to the agreements and submitted that the leave and licence agreement expired in the year 2011 and the said agreements have not been renewed and therefore the Petitioners have no legal right to continue their possession in the subject shops. He has further submitted that the rights of the petitioners are contractual rights governed by the terms and conditions of the agreements. He has brought to our notice clause 33 of the agreements and submitted that the licence period having come to end, the petitioners are liable to hand over vacant a
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