JUDGMENT A. M. Khanwilkar, J.
1. This writ petition under Article 227 of the Constitution of India is directed against the order dated 9th February, 1995 passed by the Small Causes Court at Bombay in Municipal Appeal No. 45 of 1993.
2. The short issue that arises for consideration in the present case is whether the respondent Corporation was justified in refusing permission for storage of auto tyres in the premises occupied by the petitioner. The petitioner had made an application purported to be under section 394 of the Bombay Municipal Corporation Act. 1888 ("the Act" for short) vide Application No. 3096. The Ward Officer, B-Ward. however, was pleased to reject the said application. There is no dispute that the Ward Officer, B-Ward was delegated with the authority to decide the said application for permission. The reason thatweighed with the Ward Officer in rejecting the permission is that the petitioner was not a lawful tenant of the premises and Court cases were pending regarding the premises under reference. Against the said order, an appeal under sub-section (5) of section 394 of the Act, was filed by the petitioner, being Municipal Appeal No. 45 of 1993, before the Small Causes Court at Bombay. The Small Causes Court by its order, which is under challenge, dismissed the appeal and affirmed the reason recorded by the Ward Officer for refusing grant of permission. It is this decision which is challenged in the present petition.
3. Having gone through the judgment of the Small Causes Court, I find that the Small Causes Court has virtually treated the appeal as if it was deciding the issue as to the title of the petitioner with regard to the suit premises. In my view, this cannot be the scope of inquiry in the proceedings which are for the limited purpose for seeking permission for storage of certain notified articles in the premises. In such matters, the inquiry should be restricted as to whether the applicant is in physical possession of the suit premises for which permission for storage of articles is sought. It is wholly irrelevant as to whether the applicant is either owner of the premises or a lawful tenant. So long as there is no declaration by a Court of competent jurisdiction with regard to the determination of relationship of landlord and tenant or that the applicant is in unauthorised occupation or a trespasser in respect of the premises or that the premises are unauthorised or an encroachment, the Commissioner cannot assume to himself the role of deciding the title and make the basis for refusing the permission sought for storage of notified articles. This is the only interpretation that can be given to section 394 of the Act inasmuch as sub-section (4) thereof postulates that the Commissioner shall examine whether storage of articles is dangerous of likely to create nuisance and if he is satisfied that the same is dangerous or likely to cause nuisance, he may issue notice for taking remedial steps to the occupant of the premises. The section requires that the notice is to be given to the person keeping the articles or suffer or allow to be kept in or upon any premises any trade, process or operation or allowing it to be carried out as the case may be. From the language of this section, it is absolutely clear that the proposed action under sub-section (4) is to be directed only against the person who has stored articles for carrying on the business. If that be so, there can be no doubt that the Commissioner is duty bound to merely examine as to whether the person is in physical possession of the premises, for which the permission is sought. No other inquiry would be necessary. If the application is supported by declaration that the applicant is in physical possession of the premises in question, in respect of which storage permission is sought, that can be said to be sufficient compliance. To rebut the factum of whether the person is in actual or physical possession of the premises, the onus will be on the Corporation to rebut the same by leading positive evidence and by giving opportunity to the applicant to explain the same. No other situation can be countenanced, for it would be totally contrary to the purport and spirit of the provision in question.
4. The learned counsel for the Respondent Corporation placed emphasis on the reasoning recorded by the Small Causes Court, particularly in para 31 to contend that the petitioner did not have any right with regard to the suit premises. As already observed above, this aspect would be totally extraneous for the purposes of considering whether permission should be granted or not. All that the Commissioner has to examine is whether the person who has applied for permission is in physical occupation of the premises and is a person who has kept the notified articles or the person carrying on trade or operation or allowing it to be carried on. If there is evidence to indicate this fact, no other inquiry can be examined by the Commissioner except to examine whether the articles are hazardous and/or likely to cause nuisance. In the circumstances, the approach adopted by the Ward Officer as well as by the Small Causes Court is wholly erroneous and cannot be countenanced in law.
5. The learned Counsel for the Respondents placed reliance on the decision in Rajiv Ranjan v. State of Bihar, to contend that the Court cannot mandate grant of licence to particular person, neither can it by an interim order sanctify the carrying of a licensed activity during pendency of application for licence. In my view, the reliance placed in this decision is wholly inapplicable. The said question does not arise in the present case at all. On the other hand, we are concerned with the case where the authority has already rejected the permission and the said decision has been affirmed by the Appellate Court.
6. The learned Counsel for the Respondents also placed reliance on Circular No. 18 of 1978 issued by the Municipal Commissioner to contend that it was imperative for the Petitioner to satisfy the department about the factual occupation or possession of the Petitioner in the premises in question by producing documents referred to therein. The said Circular reads thus :
"It has been reported to me that the departments concerned with Issue of permit or licence under Section 394 of the B.M.C. Act are Insisting oh the production of landlord's consent before any permission or licence is issued under Section 390 or 394 of the B.M.C. Act. On examination of the provisions of Sections 390 and 394, it is found that the sections do not envisage such consent. However, while scrutinising the applications for such permission or licence, the department should satisfy themselves about the factual occupation or possession of the applicant In such premises by insisting on the production of satisfactory proof of such possession or occupation e.g. Rent Receipt, Agreement or any other such reliable documents.
Heads of the departments dealing with the above provisions of the Act are hereby requested to follow the above instructions in future."
In the first place, this Circular is being relied upon by the Corporation for the first time before this Court. In any case, even the Circular accepts the position that insisting on production of landlord's consent before any permission or licence is Issued under section 390 or 394 of the Act Is not envisaged by the said provision. In the circumstances, I find that the said Circular is of no avail to the Respondents to contend to the contrary or that the Petitioner ought to have established lawful possession in the premises in question. Even the said Circular clearly postulates that all that is to be examined and insisted upon is whether the applicant is in occupation or possession of the premises in question and for that purpose, production of satisfactory proof may be insisted. Therefore, from this contemporaneous document, it would be seen that the nature of inquiry to be undertaken is very limited and this inquiry cannot be translated into inquiry on investigating into the title of a person with reference to the premises in question.
7. Having considered the matter in the aforesaid perspective, I have no hesitation but to set aside the order passed by the Ward Officer as well as the impugned order passed by the Small Causes Court. However, the proper course would be to direct the Ward Officer, B-Ward to re-examine the application in accordance with the observations made in this Judgment and by permitting the Petitioner to adduce necessary materials in support of the plea that he is in physical possession of the premises in question. The Ward Officer, B-Ward may decide the said application within a period of 4 weeks from receipt of writ of this Court. The Petitioner undertakes to approach the Ward Officer, B-Ward on 12th March, 2001.