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PETITIONER:

PRAKASH WAREHOUSING CO.

Vs.

RESPONDENT:

MUNICIPAL CORPORATION OF GREATER BOMBAYAND ANR.

DATE OF JUDGMENT13/03/1991

BENCH:

THOMMEN, T.K. (J)

BENCH:

THOMMEN, T.K. (J)

SAHAI, R.M. (J)

CITATION:

1991 SCR (1) 829 1991 SCC (2) 304

JT 1991 (1) 631 1991 SCALE (1)416

ACT:

Bombay Municipal Corporation Act, 1888--Sections 68 and

105 A-H--Corporation premises--Eviction of unauthorised

occupants--Powers of Corporation.

Constitution of India 1950. Article 227--High Court--

Interference with finding of fact--Whether valid.

HEADNOTE:

The original occupant of the suit godowns had on

1.10.1963 granted to the appellant a licence in respect of

the premises and subsequently by a deed of assignment dated

13.8.1966 assigned all its rights, title and interest in the

premises in favour of the appellant. The appellant had in

the meantime by agreement dated 27.3.1964 permitted the

second respondent to store goods in the premises. The

appellant thereafter requested the Corporation to recognise

it as the principal occupant of the premises by means of a

formal agreement. This request was at first rejected by the

Corporation on the ground that the second respondent, had

been already in occupation of the premises. Subsequently

the Corporation examined the terms and conditions of the

agreement dated 27.3.1964 and after satisfying itself the

Corporation transferred the occupancy right to the

appellant on the appellant executing a formal agreement

dated 17.6.1967.

A notice dated 25.7.1969 terminating tenancy in terms

of the agreement dated 17.6.1969 was served on the

appellant. This was followed by an enquiry under the Bombay

Municipal Corporation Act 1888 which resulted in the order

of eviction dated 6.1.1971, the appellant being the

principal tenant and the second respondent as a sub tenant.

The enquiry officer, acting as a delegate in terms of

section 68 and exercising the power of Commissioner of the

Municipal Corporation of Greater Bombay, the first

respondent under section 195B, ordered eviction of the

appellant on the ground of sub-letting the premises.

The enquiry officer, on inspection, found that the

second respondent was in occupation of the premises as a

sub-lessee that the appellant

830

had sub-let the premises contrary to the terms of the

conditions of occupation and had thus become an unauthorised

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occupant liable to be evicted from the premises in terms of

section 105B, and passed an order of eviction against the

appellant.

This order was, on appeal, set aside by the appellate

officer, on appreciation of the evidence and the terms of

the agreements, the appellate officer held that the

agreement dated 27.3.1964, approved and recorded the

assignment and transfer of the right, title and interest of

the original occupant to the appellant, and recognised the

appellant as the principal occupant, and that the

Corporation was at all material times aware of the

appellant's relationship with the second respondent and the

occupation of the premises by the second respondent under

the appellant. The eviction of the appellant solely on the

ground of sub-letting was therefore unwarranted.

The High Court in exercise of its jurisdiction under

Article 227 of the Constitution held that the appellate

officer was wrong in saying that the circumstances had not

altered so as to warrant an order of eviction on the ground

of sub-lease, and that the lease in favour of the appellant

had been duly determined by the Corporation in terms of the

contract, and the appellant having thus become an

"unauthorised" occupant was as such liable to be evicted

under clause (b) of sub-section (1) of section 105B. The

High Court accordingly set aside the order made by the

appellate officer under section 105B and restored the order

of eviction made under section 105B by the Enquiry Officer.

In the appeal to this Court it was submitted on behalf

of the appellant that persons in occupation of premises

under authority are not liable to be evicted otherwise than

on any one of the statutorily specified grounds, and that

the application of clause (b) of sub-section (1) of section

105B, is confined to persons in unauthorised occupation,

and that the appellate officer having found that the

Corporation when it entered into an agreement of occupation

with the appellant on 17.6.1967 fully aware of the terms and

conditions under which the second respondent was in

occupation of the premises under the appellant, the High

Court was not justified in upholding the eviction of the

appellant on the very same ground.

On behalf of the respondent No. 1-Corporation it was

submitted that in view of the finding that the sub-lease

granted or renewed by the appellant was contrary to clauses

(6) and (2) of the agreement dated 17.6.1967 the appellant

has, after the expiry of the period stipulated in

831

the notice dated 25.7.1969, become an unauthorised occupant,

and is liable to be evicted in terms of clause (b) of sub-

section (1) of section 105B.

On the question: whether it is open to the Corporation

to have recourse to clause (b) of sub-section (1) of section

105B to order eviction of the appellant as an unauthorised

occupant, and whether clause (b) is attracted where

eviction is sought to be made by determination of authority

otherwise than in terms of the statute.

Allowing the appeal, the Court,

HELD: 1. Section 105A to section 105H of Chapter VA

were inserted in the Act in 1961 to provide for speedy

eviction of persons in unauthorised occupation of

Corporation premises. (839C) Section 105A(d) defines

'unauthorised occupation'. This definition shows that

occupation of Corporation premises without authority for

such occupation is an unauthorised occupation. Such

occupation includes continuance in occupation by a person

after the authority under which he occupied the premises has

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"expired" or it has been "duly determined". the definition

thus includes not only a trespasser whose initial and

continued occupation has never been under any valid

authority, but it also includes in equal measure a person

whose occupation at its commencement was under authority,

but such authority has since expired, or, has been duly

determined--Which means validly determined. The expiry of

authority to occupy occurs by reason of the terms or

conditions of occupation. On the other hand, the

determination of authority to occupy to be due or valid must

be founded on one of the grounds specified by the statute.

Any order of eviction on the ground of either "expiry" or

due determination" has to be made in accordance with the

procedure prescribed by the statute. [839D-H]

3. Clause (a) of sub-section (1) of section 105B

contains various grounds upon which a person is liable to be

evicted. Clause (b) says that unauthorised occupation itself

is a ground for eviction. Sub-section (2) speaks of show

cause notice before an order of eviction by notice is made

under sub-section (1). Sub-section (3) has conferred

sufficient power on the Commissioner to enforce an order of

eviction made by him under sub-section (1). For the purpose

of holding an enquiry under the Act, the Commissioner is

invested with all the powers of a Civil Court (Section

105E) An appeal lies from every order of the Commissioner

832

under section 105B or section 105C to the appellate officer,

namely the Principal Judge of the City Civil Court of Bombay

(section 105F), whose orders are final and not liable to be

"called in question in any original suit, application or

execution proceeding" (Section 105G). [841E-G]

4. The satisfaction of the Commissioner, which is the

condition precedent to the exercise of power of eviction by

the summary procedure prescribed by the Act, may be in

respect of any of the circumstances falling under clauses

(a), (b) or (c) of sub-section (1) of section 105B. Clause

(a) contemplates eviction of any person on any one of the

grounds mentioned in sub-clauses (i) to (iv) thereof. These

grounds relate only to a person in authorised occupation of

Corporation premises. They have no application to a

trespasser. [841H-842B]

5. Likewise, clause (c) presumably applies to

authorised occupation of Corporation premises, which the

Commissioner is empowered to terminate by ordering eviction

of the occupant otherwise than on any of the grounds

specified under clause (a), provided the Commissioner is

satisfied that the premises in question are required by the

Corporation in the public interest. All that the

Commissioner has to satisfy himself in a case falling under

clause (c) is as regards the public interest requiring

eviction. Construction of parks, playgrounds, hospitals,

colleges, markets, destitute-homes and the like will indeed

qualify for invoking the Commissioner's power under clause

(c). [842C]

6. Clause (b) is a powerful weapon for eviction of an

unauthorised occupant. This clause is applicable equally to

a trespasser as it is to a person whose occupation has

ceased to be an authorised occupation by reason of expiry of

authority in terms thereof or due determination of authority

under clause (a) or clause (c) of sub-section (1) of section

105B. [842D]

7. If a person is in occupation without authority, as

in the case of a trespasser, or if the authority under which

a person has been in occupation has expired in terms

thereof and he continues to remain in occupation of the

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premises, he will be liable to be evicted on the ground

mentioned in clause (b) of sub-section (1) of section 105B,

but in accordance with the procedure laid down in that

section and on the satisfaction of the Commissioner,

expressed by an order, as to the lack or expiry of

authority. [842E-F]

8. Sub-letting as such, without more, is not a ground

for eviction

833

under clause (a) (ii). What attracts eviction in terms of

that provision is sub-letting which is contrary to the terms

or conditions of occupation. [843C]

In the instant case, the appellate officer has found

that the occupation of the premises by the second respondent

under the appellant was well-known to the Corporation; the

terms and conditions of that occupation were closely

scrutinised by the Corporation before recognising the

transfer of rights and interest from the previous principal

occupant to the appellant; and, it was on that basis and

with that knowledge that the Corporation authorised the

occupation of the premises by the appellant in terms of the

agreement dated 17.6.1967. In such circumstances, whatever

right of occupation which the second respondent enjoyed

under the appellant must be deemed to have been incorporated

as a term of the authority granted by the Corporation in

favour of the appellant. The appellate officer has

categorically found that there was no evidence whatsoever to

indicate that the circumstances in which the premises had

been occupied by the second respondent had in any manner, or

at any time, altered so as to affect the terms or conditions

under which the appellant was recognised as the principal

occupant. The Corporation is, accordingly on the facts

found, estopped from having recourse to the ground falling

under clause (a) (ii) of sub-section (1) of section 105B.

[843D-G]

9. In proceedings under Article 227 of the

Constitution, the high Court was not justified in

interfering with the findings of fact rendered against the

Corporation by the appellate officer. [843H-844A]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2589 of

1979.

From the Judgement and Order dated 8.8.1977 of the

Bombay High Court in Special Civil Application No. 983 of

1972.

V.M. Tarkunde, Ms. S. Janani and Mrs. Urmila Kapoor for

the Appellant.

S.B. Bhasme, U.R. Lalit, D.N. Misra, R.A. Gupta and Ms.

Shefali Khanna for the Respondents.

The Judgement of the Court was delivered by

THOMMEN. J. This appeal arises from the judgement of

the Bombay High Court in Special Civil Application No. 983

of 1972 setting

834

aside the order made by the appellate officer, (the

Principal Judge of the City Civil Court, Bombay) under

section 105F of the Bombay Municipal Corporation Act, 1888

('The Act' whereby he allowed the appellant's appeal against

the order of eviction made against it under section 105B of

the Act by the enquiry officer, acting in terms of section

68 of the Act as a delegate of the Commissioner of the

Municipal Corporation of Greater Bombay, the first

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respondent, ("the Corporation").

By the impugned judgement, the High Court has confirmed

the order of eviction made against the appellant, the

principal occupant of two godowns belonging to the

Corporation. the original occupant of the godowns, Glenfield

& Co., had on 1.10.1963 granted to the appellant a licence

in respect of these premises and subsequently by a deed of

assignment dated 13.8.1966 assigned all its rights, title

and interest in the premises in favour of the appellant. The

appellant thereafter requested the Corporation on the ground

that Ghatge & Patil (Transport) Pvt. Ltd., the second

respondent, had been already in occupation of the premises,

and after satisfying itself as to those terms, the

Corporation transferred the occupancy right from Glenfield &

Co. to the appellant on the appellant executing a formal

agreement dated 17.6.1967. The Corporation was thus fully

aware of the terms and conditions of occupation of the

premises by the second respondent, and, with the full

knowledge of those terms, the appellant was recorded in the

Corporation's book as the principal occupant in the place of

Glenfield & Co. the second respondent was thus understood

and accepted by the Corporation to be in occupation of the

premises under the appellant. All this was in 1967.

A notice dated 25.7.1969 terminating tenancy

purporatedly in terms of the agreement dated 17.6.1967 was

served on the appellant. This was followed by an enquiry

under the Act which commenced in 1970 and resulted in the

order of eviction dated 6.1.1971. The order of eviction

refers to the appellant as the principal tenant and the

second respondent as a sub-tenant. The enquiry officer,

acting as a delegate in terms of section 68 and exercising

the power of Commissioner

835

under section 105B, ordered eviction of the appellant on

the ground of sub-letting the premises. She held that the

appellant had sub-let the premises contrary to the terms or

conditions of occupation and had thus become an unauthorised

occupant liable be evicted from the premises.

The enquiry officer, on inspection, found that that the

second respondent was in occupation of the premises as sub-

lessee. She noticed the terms and conditions of the

agreement dated 27.3.1964 under which the premises had been

allowed to be occupied by the second respondent. She

concluded that the appellant had, by reason of sub-letting

contrary to the terms or conditions of occupation, become

liable to be evicted in terms of section 105B. Accordingly,

she passed an order of eviction against the appellant.

This order was, on appeal, set aside by the appellate

officer. On appreciation of the evidence on record,

including the terms of the relevant agreements, the

appellate officer held that the agreement dated 27.3.1964,

under which the second respondent occupied the premises, had

been well-known to the Corporation, and the Corporation,

having satisfied itself as to the full implication and

significance of that occupation, approved and recorded the

assignment and transfer of the right, title and interest of

Glenfied & Co. to the appellant, and recognised the

appellant as the principal occupant. The Corporation was

thus at all material times aware of the appellant's

relationship with the second respondent and the occupation

of the premises by the second respondent under the

appellant. Accordingly the appellate officer held that, in

the absence of any material to show that the relationship

between the appellant and the second respondent had so

altered since the appellant's agreement with the Corporation

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as to violate the terms or conditions of occupation, the

eviction of the appellant solely on the ground of sub-

letting was unwarranted.

The reasoning of the appellate officer thus appears to

be that the Corporation having allowed the transfer of the

occupancy right of Glenfield & Co. to the appellant with the

full knowledge of the terms and conditions under which the

second respondent was already let into the premises by the

appellant, whatever be the nature of their relationship--

whether it be a lease or licence--the Corporation was

estopped from now contending that the alleged sub-letting

was contrary to the terms or conditions of the appellant's

occupation of the premises and that the appellant had for

that reason become liable to be evicted.

836

This is what the appellate officer stated on the point:

"...There is no allegation that after the tenancy

was transferred in the name of the applicant,with

the full knowledge and consent of the Municipal

Corporation as to the terms and conditions on which

the premises were occupied by the 2nd respondent,

there has been any change in the nature of the 2nd

respondent's occupation of the part of the premises

and also in the terms and conditions of the

occupation. Although the subsequent agreement was

entered into between the appellants and the 2nd

respondent, it was on the same terms and conditions

as the first agreement which was produced before

the ward officer before the transfer of tenancy in

favour of the appellants ....... In this case,

therefore, even if the agreement between the

appellants and the 2nd respondent is interpreted as

a sub-tenancy agreement and under the said

agreement the appellants are said to have sublet

the premises to the 2nd respondent, the said

subletting was prior to the transfer to tenancy in

favour of the appellants and was with the full

knowledge and consent of the Municipal Corporation:

and, therefore, that cannot be considered to be

subletting in breach of the agreement of tenancy so

as to enable the Municipal Corporation to evict the

appellants on that ground..."

This is essentially a finding of fact. The order of the

appellate officer is final and is not ordinarily liable to

be called in question (see section 105G). Nevertheless,

this finding was set aside by the High Court by the impugned

judgment in exercise of its jurisdiction under Article 227

of the Constitution. The High Court held:

"......Even otherwise, in our view, respondent No.1

was liable to be evicted under section 105B(1)

clause (a) subclause (ii). We are unable to agree

with the finding given by the learned Principal

Judge that no change in the circumstances under

which the tenancy had been transferred in the name

of respondent No. 1 has taken place after the grant

of the lease and, therefore, the Corporation would

be stopped from alleging that respondent No. 1 had

sublet the premises...."

The High Court thus held that the appellate officer was

wrong in

837

saying that the circumstances had not altered so as to

warrant an order of eviction on the ground or sub-lease. The

High Court also held that the lease in favour of the

appellant had been duly determined by the Corporation in

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terms of the contract, and the appellant having thus become

an "unauthorised" occupant was as such liable to be evicted

under clause (b) of sub-section (1) of section 105B. The

High Court stated:

"..... if a tenancy is terminated in accordance

with terms of the tenancy agreement, it must be

held to be duly terminated. Such a person was

liable to be evicted under the provisions of

section 105B(1) of the Act."

The Corporation has indeed the power to order eviction

on the ground of sub-letting which is contrary to the terms

or conditions of occupation. But it cannot be gainsaid that,

when by specific agreement dated 17.6.1967 the Corporation

recognised the assignment of all rights, title and interest

made by Glenfield & Co. on 13.8.1966 in favour of the

appellant in respect of the premises in question, and thus

treated the appellant as the principal occupant, the

Corporation was fully aware of the terms and conditions of

the agreement dated 27.3.1964 under which the second

respondent was already in occupation of the premises.

Nevertheless, the Corporation entered into the agreement

dated 17.6.1967 accepting the appellant as the principal

occupant in the place of Glenfield & Co. In the absence of

any evidence to show that the relationship between the

appellant and the second respondent has since altered so as

to violate the terms of the agreement of occupation dated

17.6.1967. It is not open to the Corporation to order

eviction of the appellant on the ground of sub-letting which

is alleged to be contrary to the terms or conditions of

occupation. The High Court, in our view, wrongly reversed

the finding of fact on that question by the appellate

officer. Whether the circumstances had changed or not was a

question then is, whether, as found by the High Court,it is

open to the Corporation to have recourse to clause (b) of

sub-section (1) of section 105B to order eviction of the

appellant as an unauthorised occupant. Is clause (b)

attracted where eviction is sought to be made by

determination of authority otherwise than in terms of the

statute?

Mr. V.M. Tarkunde, appearing for the appellant, submits

that the appellate officer having found that the

Corporation was, when it

838

entered into an agreement of occupation with the appellant

on 17.6.1967, fully aware of the terms and conditions under

which the second respondent was in occupation of the

premises in question under the appellant, the High Court was

not justified in upholding the eviction of the appellant on

the very same ground. The application of clause (b) of sub-

section (1) of section 105B, counsel says, is confined to

persons in unauthorised occupation. Persons in occupation of

premises under authority are not liable to be evicted

otherwise than on any one of the statutorily specified

grounds.

Mr. S.B. Bhasme, appearing for the Corporation, submits

that in view of the finding that the sub-lease granted or

renewed by the appellant was contrary to clause (6) of its

agreement dated 17.6.1967 which provided.

".....I agree that this godown will not be

assigned or sub-let or allowed to be occupied by

any person and if it or any part of it is assigned

or sub-let to any other party, I will be liable to

be ejected immediately".

and also in view of clause (2) of the said agreement which

reads:

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"Each party may terminate the tenancy at the end

of any English Calendar month by giving to the

other party one month's notice in writing".

the appellant has, after the expiry of the period stipulated

in the notice dated 25.7.1969, become an unauthorised

occupant, and is liable to be evicted in terms of clause (b)

of sub-section (1) of section 105B of the Act.

According to Mr. Bhasme, the agreement under which the

appellant occupied the premises has expired or has been duly

determined by order of the competent authority. Further

continuance by the appellant is an unauthorised occupation

so as to attract the provisions of section 105B. Apart from

the grounds mentioned in sub-clauses (i), (ii), (iii) and

(iv) of clause (a) of sub-section (1) of section 105B, the

Corporation is also empowered under clause (b) of sub-

section (1) of that section to evict any person whose

authority to occupy has expired or has been duly determined

and who thereafter remains in occupation of the premises.

The authority to occupy, he says, is duly determined even if

the determination is sought to be founded on the ground of

sub-letting contrary to the terms and

839

conditions of occupation, or on any other ground specified

in clause (a) or clause (c) of sub-section (1) 105B, and

that ground is subsequently held to be not proved and the

order of eviction on that ground is accordingly found to be

invalid. This invalidity, according to counsel, is only as

far as it related to the alleged ground. Nevertheless, he

says, such order determining authority to occupy is

sufficiently efficacious to make further occupation

'unauthorised', so as to attract clause (b) of sub-section

(1), provided the determination of authority can otherwise

be justified in terms of the agreement of occupation. In

such circumstances, he says, clause (b) of sub-section (1)

is a potent weapon in the hands of the Corporation.

We shall now examine the relevant provisions. Section

105A to section 105H of chapter VA were inserted in the Act

in 1961 so as to provide for speedy eviction of persons in

'unauthorised occupation of Corporation premises. Section

105A (d) defines 'unauthorised occupation' in the following

words:

"(d) 'unauthorised occupation in relation to any

corporation premises; means the occupation by any

person of corporation premises without authority

for such occupation; and includes the continuance

in occupation by any person of the premises after

the authority under which he was allowed to occupy

the premises has expired, or has been duly

determined."

The definition shows that occupation of Corporation premises

without authority for such occupation is an unauthorised

occupation. Such occupation includes continuance in

occupation by a person after the authority under which he

occupied the premises has "expired" or it has been "duly

determined". The definition thus includes not only a

trespasser whose initial and continued occupation has never

been under any valid authority, but it also includes in

equal measure a person whose occupation at its commencement

was under authority, but such authority has since expired,

or, has been duly determined--Which means validly

determined. The expiry of authority to occupy occurs by

reason of the terms or conditions of occupation. On the

other hand, the determination of authority to occupy to be

due or valid must be founded on one of the grounds

specified by the statute. Any order of eviction on the

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ground of either "expiry" or "due determination" has to be

made in accordance with the procedure prescribed by the

statute.

840

Section 105B, in so far as it is material, reads:

"S. 105B (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,

(i) not paid for a period of more than two

months, the rent or taxes lawfully due from him in

respect of such premises; or

(ii) sub-let, contrary to the terms or

conditions of his occupation, 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, expreses or implied, under which he is

authorised to occupy such premises;

(b) that any person is in authorised

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 regulations), order that that

person, as well as any other person who may be in

occupation of the whole or any 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

841

any person, the Commissioner shall issue, in the

manner hereinafter provided, notice in writing

calling upon all persons concerned to show cause

why an order of eviction should not be made.

The notice shall,

(a) specify the grounds on which the order of

eviction is proposed to be made, and

(b) require all persons concerned that 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.

.....................

(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."

(emphasis supplied)

Clause (a) of sub-section (1) of this section contains

various grounds upon which a person is liable to be evicted.

Clause (b) says that unauthorised occupation itself is a

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ground for eviction. Clause (c) provides that requirement in

the public interest is a ground for eviction. Sub-section

(2) speaks of show cause notice before an order of eviction

by notice is made under sub-section (1). Sub-section (3) has

conferred sufficient power on the Commissioner to enforce an

order of eviction made by him under sub-section (1). For the

purpose of holding an enquiry under the Act, the

commissioner is invested with all the powers of a Civil

Court (section 105E). An appeal lies from every order of the

Commissioner under section 105B or section 105C to the

appellate officer, namely, the Principal Judge of the City

Civil Court of Bombay (section 105F), whose orders are final

and not liable to be "called in question in any original

suit, application or execution proceeding" (section 105G).

The satisfaction of the Commissioner, which is the

condition precedent to the exercise of power of eviction by

the summary procedure

842

prescribed by the Act, may be in respect of any of the

circumstances falling under clauses (a), (b) or (c) of sub-

section (1) of section 105B. Clause (a) contemplates

eviction of any person on any one of the grounds mentioned

in sub-clauses (i) to (iv) thereof. These grounds relate

only to a person in authorised occupation of Corporation

premises. They have no application to a trespasser. This is

clear from the grounds themselves as well as from the

wording of clause (a) which reads "that the person

authorised to occupy...". Likewise, clause (c) presumably

applied to authorised occupation of Corporation premises,

which the Commissioner is empowered to terminate by ordering

eviction of the occupant otherwise than on any of the

grounds specified under clause (a), provided the

Commissioner is satisfied that the premises in question are

required by the Corporation in the public interest. All that

the Commissioner has to satisfy himself in a case falling

under clause (c) is as regards the public interest requiring

eviction. Construction of parks, playgrounds, hospitals,

colleges, markets, destitute-homes and the like will indeed

qualify for invoking the Commissioner's power under clause

(c), Clause (b), on the other hand, is a powerful weapon for

eviction of an unauthorised occupant. This clause is

applicable equally to a trespasser as it is to a person

whose occupation has ceased to be an authorised occupation

by reason of expiry of authority in terms thereof or due

determination of authority under clause (a) or clause (c) of

sub-section (1) of section 105B.

If a person is in occupation without authority, as in

the case of a trespasser, or if the authority under which a

person has been in occupation has expired in terms thereof

and he continues to remain in occupation of the premises, he

will be liable to be evicted on the ground mentioned in

clause (b) of sub-section (1) of section 105B, but in

accordance with the procedure laid down in that section and

on the satisfaction of the Commissioner, expressed by an

order, as to the lack or expiry of authority. It must

however, be remembered that, except in the case of a

trespasser or a person remaining in occupation even after

the expiry of the period of authority, clause (b) can be

invoked only where the Commissioner is satisfied and has so

found be an order that any one of the grounds falling under

clause (a) or clause (c) of sub-section (i) for

determination of authority has been established. In the

absence of such a valid order invoking clause (a) or clause

(c), a person in occupation under authority, which has not

expired, is not liable to be evicted under section 105B. We

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do not accept Mr. Bhasme's argument to the contrary on this

point.

It is not the case of the Corporation that the

authority under

843

which the appellant has been in occupation has expired in

terms thereof. That was not the basis upon which the enquiry

was conducted and the order of eviction was made. If that

was the ground and that ground was rightly invoked, the

position might well be different. The specific ground upon

which eviction was sought, as seen in the order of the

enquiry officer and as categorically found by the High

Court, was one of sub-letting contrary to the terms or

conditions of occupation. No other ground, as the High Court

says, was relied upon by the Corporation. In the

circumstances, the Commissioner (or his delegate) must be

understood to have restricted the scope of the enquiry to

the ground falling under clause (a) (ii) of sub-section (1)

of section 105B for the purpose of invoking the summary

power of eviction vested in him under the statute.

Sub-letting as such, without more, is not a ground for

eviction under clause (a) (ii). What attracts eviction in

terms of that provision is sub-letting which is contrary to

the terms or conditions or occupation. The appellate officer

has found that the occupation of the premises by the second

respondent under the appellant was well-known to the

Corporation; the terms and conditions of that

occupation were closely scrutinised by the Corporation

before recognising the transfer of rights and interest from

the previous principal occupant to the appellant; and, it

was on that basis and with that knowledge that the

Corporation authorised the occupation of the premises by the

appellant in terms of the agreement dated 17.6.1967.

In such circumstances, whatever right of occupation

which the second respondent enjoyed under the appellant must

be deemed to have been incorporated as a term of the

authority granted by the Corporation in favour of the

appellant. The appellate officer has categorically found

that there was no evidence whatsoever to indicate that the

circumstances in which the premises had been occupied by the

second respondent had in any manner, or at any time, altered

so as to affect the terms or conditions under which the

appellant was recognised as the principal occupant. The

Corporation is, accordingly on the facts found, stopped from

having recourse to the ground falling under clause (a) (ii)

of sub-section (1) of section 105B. As stated by the High

Court, this was the only ground on which eviction was

sought, and that ground, as found by the appellate officer,

has not been established.

In proceedings under Article 227 of the Constitution,

the High Court was not, in our view, justified in

interfering with the finding of

844

fact rendered against the Corporation by the appellate

officer. Accordingly, we set aside the impugned judgement of

the High Court and restore the order of the appellate

officer.

This appeal is allowed in terms of what is stated

above. The parties shall, however, bear their respective

costs.

N.V.K.

Appeal allowed.

845

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