RESPONDENTMr. S v. Warad

Legal Reasoning

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 5788 OF 2016Priyadarshini Memorial Trust, NandedThrough its President-Balasaheb s/o Jalabajirao Madhaswad,Age 46 years, Occu: Business,R/o Bajrang Colony, Nanded … PETITIONER VERSUSNanded-Waghala City Municipal Corporation,Nanded, Through its Commissioner.… RESPONDENTMr. S. V. Warad, Advocate for the PetitionerMr. M. D. Narwadkar, Advocate for RespondentCORAM: R. M. JOSHI, J.DATE: 24th JULY, 2025JUDGMENT :-1.Heard learned Counsel for both sides finally at the stage ofadmission.2.This Petition takes exception to the order dated 8th January,2014 passed by the Principal District Judge, Nanded in Regular CivilAppeal No. 116 of 2007 filed by the Petitioner under Section 81F of theBombay Provincial Municipal Corporations Act (for short ‘BPMC Act’)taking exception the order passed by Municipal Commissioner, Nandedunder Section 81B of the BPMC Act, whereby the Petitioner wasdirected to be evicted from the property owned by the Corporation.919 WP 5788.2016.odt1 of 12 3.The facts which led to the filling of the Petition as narratedin the petition can be recorded in brief as under:-(i)The Petitioner is an Educational Institution and an aidedschool. The premises of the school is situated on Survey No.1 and 2admeasuring 1.5 acres at Asadullabad, Tq. and District Nanded. Thesaid land is declared reserved for the purpose of school andplayground. By resolution dated 16th October, 1992, the said landallotted to the Petitioner for charitable purpose initially for a period ofthree years on lease. It is claimed that on the basis of the said leasethe Petitioner is in possession of the subject land. The MunicipalCorporation sought recommendation of the said proposal for itssanctioned of by the State Government. Admittedly therecommendations has not been received till date. Thereafter, thePetitioner sought permission to carry out construction and someconstruction came to be carried out. The lease period came to berenewed for further three years and initially Assistant Director of TownPlanning, Nanded had determined the rent at the rate of Rs.89,650/-per annum. The Petitioner requested the Municipal Corporation forreduction in the rent amount. The Municipal Corporation passedresolution dated 30th October, 1995 fixing the lease rent at Rs.151/- permonth.919 WP 5788.2016.odt2 of 12 (ii)It is further case of the Petitioner that the said amount ofrent as per the resolution was offered to the Corporation, however, theCorporation refused to encash the cheque. It is alleged that theCorporation tried to dispossess the Petitioner and hence the suitbearing R.C.S. No. 194 of 2006 came to be filed for simplicitorperpetual injunction. Temporary injunction Application came to beallowed on 19th October, 2006 restraining the Corporation fromobstructing the possession of the Petitioner over the subject property.The challenge to the said order in M.C.A. No. 125 of 2006 wasunsuccessful.(iii)It is further case of the Petitioner that on 27th February,2006, Petitioner for the first time came to know that the Corporationhas passed order under Section 81B of the BPMC Act for eviction of thePetitioner. It is further claimed that on 28th February, 2006 request wasmade for certified copy of the said order. But the said copy was notsupplied. Petitioner being aggrieved by the order passed by theCorporation preferred Appeal on 28th September, 2007 before theDistrict Judge under Section 81F of the BPMC Act. The learned DistrictJudge, Jalgaon dismissed the appeal by passing order dated 8thJanuary, 2014 in R.C.A. No. 116 of 2007. Hence, this petition.919 WP 5788.2016.odt3 of 12 (iv)The Petition is opposed by Corporation by filing affidavit-in-reply. It is specifically alleged that the Petitioner intents to grab theMunicipal property. There is specific statement made in the affidavitthat in the larger public interest for the further expansion of airport theland is required by the airport authority and the development of airporthas been stalled. The Respondent-Corporation filed reply of EstateManager denying the contentions of the Petitioner. It is claimed thatsince the Petitioner has failed to pay the lease rent, a notice was issuedto the Petitioner on 26th September, 2001 and after giving hearing,order came to be passed by the Commissioner. It is specifically statedon oath that the Petitioner is having its own premises at Bajrangcolony, Nanded which is four storied building in RCC structure having32 rooms. It is also claimed that the Petitioner Institution is runningMarathi medium school in the said premises. The Petitioner is also saidto have been running a English medium school in the Bajrang colonynear the the Marathi medium school having 14 room with carpet areaof 3655 sq.ft.4.Learned Counsel for the Petitioner submits that theCorporation has failed to comply with the mandatory provisions ofSection 81B of the BPMC Act and the order under Section 81B of theBPMC is passed without notice and hearing to the Petitioner. It is his919 WP 5788.2016.odt4 of 12 submission that earlier the lease for 99 years was granted in favour ofthe Petitioner by the Municipal Corporation, Nanded and thereafter theMunicipal Council by passing resolution dated 30th October, 1995 hasdecided the lease rent to be Rs.151/- per month and in suchcircumstances, it was not open for the Corporation to claim the rent atthe rate of Rs. 89,650/- per annum as per the earlier lease. It is hissubmission that the Petitioner is Education Institution and hence, evenotherwise the eviction of the Petitioner from the subject property incause inconvenience to the students.5.Learned Counsel for the Respondent supported theimpugned order. It is his submission that the whole attempt of thePetitioner is to some how keep the possession of the subject property.It is his submission that the Petitioner cannot be allowed to blow hotand cold at the same time. It is argued that if the Petitioner placesreliance on the resolution dated 30th October, 1995, the said resolutionindicates that the period of the lease has already been expired. It is hissubmission that Section 81B of the BPMC Act apart from non paymentof the lease rent provides a ground of unauthorized occupation of theproperty for eviction. It is his submission by referring to the affidavit-in-reply that the document on record clearly indicates about a noticebeing issued by the Corporation to the Petitioner on 18th October, 2001919 WP 5788.2016.odt5 of 12 under Section 81B(2) of the BPMC Act. He further drew attention of theCourt to the order passed by the Commissioner indicating that thehearing was held on 4th September, 2004 and President of the PetitionerTrust was present in the said hearing. It is his submission that there isno specific denial of the said fact by the Petitioner. It is his furthercontention that the Appeal has been filed beyond period of limitationand hence the same has been rightly dismissed by the Appellate Court.It is his submission that the Principal District Judge, Jalgaon has rightlytaken into consideration the facts of the case and has dismissed theAppeal and that in exercise of writ jurisdiction no interference isrequired therein.6.In order to consider the submissions of the rival parties itwould be relevant to take note of the provision of Section 81B of BPMCAct, which reads thus:“81B. Power to evict persons from Corporation premises. - (1)Where the Commissioner is satisfied, -(a)that the person authorised to occupy any Corporationpremises has, whether before or after the commencement of theBombay Provincial Municipal Corporations (Second Amendment)Act, 1969,-(i)not paid for a period of more than two months, therent or taxes lawfully due from him in respect of suchpremises; or(ii)sub-let, contrary to the terms and conditions of hisoccupation, the whole or any part of such premises; or(iii)committed, or is committing, such acts of waste as919 WP 5788.2016.odt6 of 12 are likely to diminish materially the value of impairsubstantially 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 occupysuch premises;(b)that any person is in unauthorised occupation of anyCorporation premises,(c)that any Corporation premises in the occupation of any personare required by the Corporation in public interest,the Commissioner may, by notice served by post, or by affixing acopy of it on the outer door or some other conspicuous part ofsuch premises, or in such other manner as may be provided forby regulations, order that person, as well as any other personwho may be in occupation of the whole or any part of thepremises, shall vacate them within one month of the date of theservice of the notice.(2)Before an order under sub-section (1) is made against anyperson, the Commissioner shall issue, in the manner hereinafterprovided, a notice in writing calling upon all persons concerned toshow cause why an order of eviction should not be made.The notice shall, -(a)specify the grounds on which the order of eviction isproposed to be made, and(b)require all persons concerned, that is to say, all personswho are or may be in occupation or, of claim interest in, theCorporation 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 theextension of the period specified in the notice, the Commissionermay grant the same on such terms as to payment and recoveryof the amount claimed in the notice, as he deems fit.Any written statement put in by any person and documentsproduced, in pursuance of the notice, shall be filed with therecord of the case, and such person shall be entitled to appearbefore the Commissioner by advocate, attorney or other legalpractitioner.The notice to be served under this sub-section shall be served inthe manner provided for the service of a notice under sub-section919 WP 5788.2016.odt7 of 12 (1); and thereupon, the notice shall be deemed to have beenduly given to all persons concerned.(3)If any person refuses or fails to comply with an order madeunder subsection (1), the Commissioner may evict that personand any other person who obstructs him and take possession ofthe premises; and may for that purpose use such force as may benecessary.(4)The Commissioner may, after giving fourteen clear days'notice to the person from whom possession, of the Corporationpremises has been taken under subsection (3) and afterpublishing such notice in the Official Gazette and in at least onenewspaper circulating in the locality, remove or cause to beremoved, or dispose of by public auction any property remainingon such premises. Such notice shall be served in the mannerprovided for the service of a notice under sub-section (1).(5)Where the property is sold under sub-section (4), the saleproceeds shall, after deducting the expenses of sale, be paid tosuch person or persons as may appear to the Commissioner to beentitled to the same :Provided that, where the Commissioner isunable to decide as to the person or persons to whom thebalance of the amount is payable or as to the apportionment ofthe same, he shall refer such dispute to a Civil Court ofcompetent jurisdiction, and the decision of the Court thereonshall be final.(6)If a person, who has been ordered to vacate any premisesunder sub-clause (i) to (iv) of clause (a) of sub-section (1),within one month of the date of service of the notice, or suchlonger time as the Commissioner may allow, pays to theCommissioner the rent and taxes in arrears, or as the case maybe, carries out or otherwise complies with the terms contravenedby him to the satisfaction of the Commissioner, the Commissionershall on such terms, if any (including the payment of any sum byway of damages or compensation for the contraventionaforesaid), in lieu of evicting such person under sub-section (3)cancel his order made under sub-section (1); and thereupon suchperson shall continue to hold the premises on the same terms onwhich he held them immediately before such notice was servedon him.”7.This provision clearly indicates that in case of non payment919 WP 5788.2016.odt8 of 12 of the lease rent so also on unauthorized occupation of the propertybelonging to the Corporation, the said provision can be invoked. Recordindicates that notice dated 18th October, 2001 was issued by theCorporation to the Petitioner. This notice was duly responded by thePetitioner by letter dated 29th October, 2001. It is thus clear from thesaid record that prior taking action under Section 81B of the BPMC Act,notice was duly served upon the Petitioner. Apart from this there is aspecific mention in the order that the hearing was given to thePetitioner on 4th September, 2004 and the President of the PetitionerTrust appeared in the said hearing. It is thus not the case that theorder in question passed by the Commissioner under Section 81B of theBPMC Act has been passed without notice or without giving opportunityof hearing to the Petitioner.8.It is the case of the Petitioner that a resolution was passedby the Municipal Corporation, Nanded on 30th October, 1995, whereinthe lease rent was fixed at Rs.151/- per month, however, the period oflease was for three years. Learned Counsel for the Petitioner during thecourse of the argument has sought to make submission that in respectof the period of lease, the resolution passed by the Municipal Councilhas not been approved by the State Government and therefore thesame would not apply. If, this submission is to be accepted, needless to919 WP 5788.2016.odt9 of 12 say that the entire resolution passed by the Council has not beenapproved by the State Government and hence, question of consideringthe case of the Petitioner that the Petitioner was not liable to payRs.89,650/- per annum to the by way of lease rent also does notbecome acceptable. The Petitioner is trying to blow hot and coldsimultaneously which is wholly in permissible. The Petitioner cannot bepermitted to claim that the resolution in question passed by theMunicipal Council should be implemented in the piecemeal and only tothe extent it is beneficial to the Petitioner.9.The afore stated facts clearly indicate that the Petitionerwas duly heard before passing of the order under Section 81B of theBPMC Act. The said order came to be passed in the year 2004.Thereafter, the Petitioner filed suit against the Corporation and obtainedinterim injunction, however, no appeal was filed under Section 81F ofthe BPMC Act till year 2007. The learned Principal District Judge,Jalgaon framed issue with regard to the limitation and has recorded thefindings that the Appeal is barred by limitation. In the facts of the caseas indicated herein above, the said findings recorded by the PrincipalDistrict Judge being in consonance with the material on record requireno interference.919 WP 5788.2016.odt10 of 12 10.On the merit also the learned Principal District Judge hascarefully taken into consideration the contention of the parties andmaterial evidence on record in order to hold that no case is made outby the Appellant to cause interference in the order impugned beforehim.11.Since the order passed by the Commissioner of theMunicipal Corporation is on due compliance of provisions of Section 81Bof BPMC Act and also in view of the fact that the Petitioner isunauthorizedly occupying the subject property, the order of eviction ofthe Petitioner is fully justified. It is pertinent to note that after theexpiry of the period of lease, for years together the Petitioner has nevermade an Application to the Corporation for extension of lease. Inabsence of any such Application being made there was no obligation onthe part of the Corporation to extend the lease.12.As a result of above discussion, there is no perversity in theorder impugned passed by the learned Principal District Judgeconfirming the order passed by the Commissioner under Section 81B ofthe BPMC Act, hence petition deserves to be dismissed and Petitionstands dismissed accordingly.13.Learned Counsel for Petitioner seeks continuation of interim919 WP 5788.2016.odt11 of 12 relief for period of six weeks. Though it is claimed by the Petitioner thatschool is being run in the subject property, affidavit has been filed onbehalf of the Corporation indicating that actually the premises is notused for running a school as there are other premises in which theschool is run. There is no rejoinder to this affidavit. Hence, thecontention of the Corporation deserves acceptance. In the facts of thecase request of continuation of interim relief stands rejected. (R. M. JOSHI, J.)ssp919 WP 5788.2016.odt12 of 12