Ramchandra Jivatram Chetwani vs Pune Municipal Corporation And ...
2012 Latest Caselaw 317 Bom

                                                                            1
                                                                wp5764com.doc

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION




                                                                      
                    WRIT PETITION NO.5764 OF 2012




                                              
    Ramchandra Jivatram Chetwani
    through power of attorney holder
    Mrs.Poonam Deepak Amar                        .. Petitioner
         Versus




                                             
    Pune Municipal Corporation and Ors.           .. Respondents

    WITH




                                    
    WRIT PETITION NOS.5783, 5784, 5786 TO 5789, 5792 TO
    5794, 5798 AND 5801 OF 2012.
                        
    Mr.S.B.Deshmukh for petitioner in W.P.5764 of 2012
                       
    Mr.Mandar Goswami for petitioners in W.P. 5783, 5784, 5786,
    5787, 5788, 5798 of 2012
    Mr.P.S.Dani for petitioners in W.P.5789, 5792, 5793 and 5794
    of 2012
      

    Mr.Abhijit Kulkarni for respondent Nos. 1 to 3 in all petitions.
   



                           CORAM      : S. C. DHARMADHIKARI, J.

2nd November 2012.

P.C.:

1] In each of these matters the petitioners have been evicted

by orders of eviction passed under Chapter VIII A of the

Bombay Provincial Municipal Corporation's Act, 1949 (BPMC

Act for short). The orders of eviction passed have been

confirmed by the appellate authority and that is how these

wp5764com.doc

petitions.

2] The learned Counsel appearing for the petitioners in each

of these petitions have urged that the orders of eviction are bad

in law. These orders are not passed by the Commissioner of

Pune Municipal Commissioner but by an authority or officer

other than him which has not been delegated with the powers

of eviction. The powers under Chapter VIII A and particularly

section 81-B are quasi judicial in nature. The general power of

delegation contemplated by section 69 of the BPMC Act would

not take within its import the powers to evict unauthorised

occupants from Municipal Premises. That power being quasi

judicial in nature has to be specifically delegated. In the

absence of such specific delegation, the order passed is bad in

law. They are equally bad in law because they have been

made ignoring the requests of the petitioners that they are

ready and willing to comply with 2008 Rules and have offered

to pay the rent or arrears in respect of municipal premises,

wp5764com.doc

which offer was made prior to the impugned order being

passed. Thirdly and in any event, the Rules of 2008 are the

source of power based on which the order of eviction has been

passed and, therefore, it is not an order in terms of Chapter

VIII-A. These rules of 2008 are subject matter of challenge in

distinct legal proceedings and, therefore, no reliance should

have been placed thereon.

3] Each of these contentions have been found to be without

merit by both the authorities. The sections which are material

for my purpose are Section 81A and 81B of the BPMC Act.

They read thus:-

"81A. Definitions:- In this Chapter;-

(a) "Commissioner" in the event of any Corporation having established or acquired, or establishing or acquiring, a Transport Undertaking, in

relation to the premises of the corporation which vest in or are held by it for the purpose of the Transport Undertaking, means the Transport Manager;

(b) "Corporation premises" means any premises belonging to, or vesting in, or taken on

wp5764com.doc

lease, by the Corporation;

© "regulations" means regulations made by the Commissioner under section 81-I,

(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."

"81B. Power to evict persons from Corporation

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 Provincial Municipal Corporations (Second Amendment) Act,

1969 (Mah.VIII of 1970);-

(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 and 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

wp5764com.doc

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;

© that any Corporation premises in the occupation of any person are required by the

Corporation in public interest,

the Commissioner may, 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 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 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;

(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 or, of claim interest in, the Corporation premises, to show cause against the proposed order, on or before such date as is specified in the notice.

wp5764com.doc

If such person makes an application to the Commissioner for the 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 ecase, and such person shall be entitled to appear before the Commissioner by Advocate, attorney or other legal practitioner.

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 been 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 pemises; 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 from 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, 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).

wp5764com.doc

(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 whom 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) to (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 may allow, pays to the Commissioner the rent and taxes in arrears or as the case may be,

carries out or otherwise complies with the terms contravened by him to the satisfaction of the

Commissioner, the Commissioner shall on such terms, if any (including the payment of any sum by way of damages or compensation for the contravention aforesaid), in lieu of evicting such

person under sub-section (3) cancel his order made under sub-section (1); and thereupon such person shall continue to hold the premises on the same terms on which he held them immediately before

such notice was served on him."

4] A bare perusal of Section 81A would indicate that the term

Commissioner that is defined therein is in the event of any

wp5764com.doc

Corporation having established or acquired or establishing or

acquiring transport undertaking, in relation to the premises of

the Corporation which vest in or are held by it for the purpose

of transport undertaking, means the Transport Manager. Now

this definition is only to facilitate that person to exercise the

powers under Chapter VIII-A and because of any technical

objections with regard to his authority that he should not be

held to be possessing no such power that the Legislature

clarifies that if the Corporation has established or acquired or

establishing or acquiring a transport undertaking, then, in

relation to the premises of the Corporation, which vest in or

held by it for the purpose of transport undertaking, the

Transport Manager would be termed as the Commissioner.

Thus, to enable eviction from the premises of the Corporation

which are made over for the purpose of such transport

undertaking, that this definition is provided and equally to

designate the transport Manager as an authority to exercise

power under Chapter VIII-A that his name appears in the

wp5764com.doc

definition.

5] Beyond that what the Act provides by Section 69 is as

under:-

"69. Municipal Officers may be empowered to exercise certain of the powers, etc. of the

Commissioner or the Transport Manager:- (1) Subject to the provisions of sub-sections (2) and (3),

any of the powers, duties or functions conferred or imposed upon or vested in the Commissioner or the

Transport Manager by or under any of the provisions of this Act may be exercised, performed or discharged under the Control of the Commissioner or the Transport Manager, as the cse may be, and

subject to his revision and to such conditions and limitations, if any, as may be prescribed by rules, or

as he shall think fit to prescribe in a manner not inconsistent with the provisions of this Act or Rules, by any municipal officer whom the Commissioner or the Transport Manager generally or specially

empowers by order in writing in this behalf; and to the extent to which any Municipal Officer is so empowered the word "Commissioner" and the words "Transport Manager" occurring in any provision in this

Act, shall be deemed to include such officer.

(2) The Commissioner shall not, except with the prior approval of the Standing Committee, make an order under sub-section (1) affecting his powers, duties or functions under any of the following

wp5764com.doc

sections, sub-sections and clauses, namely:-

10(1)(h), 12(1), 18(1), 26(2), 43(2), 43(4), 43(5), 51(2), 67(3)(b), 67(3)(c), 67(3)(d), 71(2), 73, 77,

78(1), 85, 86, 87, 90, 92(2), 94, 95, 121, 122, 125, 126, 130(1), 131(1), 134, 137, 144, 152, 154, 160, 174, 176, 177, 188, 195, 196, 197, 201, 205, 207, 208, 209, 210, 212, 213, 214, 216, 220, 224, 232,

243, 268, 269, 270, 272(2), 273, 274, 275, 275(1), 277, 278, 281, 298, 300, 301, 303, 304, 305, 310, 317, 319, 321, 322, 323, 324, 325, 328, 329, 330, 331, 332, 363, 364, 371(2), 373, 386(2), 439(3),

439(4), 441, 442, 445, 466, 481 except clause (a) of sub-section (1);

(3) The Transport Manager shall not except

with the prior approval of the Transport Committee, make an order under sub-section (1) affecting his powers, duties or functions under any of the following provisions, namely:-

43(5), 67(40(b), 67(4)(c), 71(2), 73, 97, 344,

346, 348, 354, 355, 356, 358, 362, 481 except clause

(a) of sub-section (1)."

6] Section 69 follows section 68. Section 68 states that the

Commissioner to exercise powers and perform duties of

Corporation under other laws. Then comes section 69, which

states that Municipal Officers may be empowered to exercise

certain powers etc. of the Commissioner or Transport Manager.

wp5764com.doc

Therefore, subject to the provisions of sub-sections 2 and 3,

any of the powers, duties or functions conferred or imposed

upon or vested in the Commissioner or Transport Manager by

or under any of the provisions of this Act may be exercised,

performed or discharged under the Control of the

Commissioner or Transport Manager as the case may be, by

any Municipal Officer whom the Commissioner or Transport

Manager generally or specifically empower by or any writing in

this behalf.

7] It is not the contention of Mr.Deshmukh or Mr.Dani that

there is no general delegation in favour of the authority or

officer passing impugned orders. In this case, the orders have

been passed by the Deputy Commissioner, Land Acquisition

and Estate Management, of Pune Municipal Corporation. The

argument is not that there is no delegation in his favour at the

given or relevant time. The argument is that such delegation

would not enable him to exercise powers under Chapter VIII -A

wp5764com.doc

of the Act as such powers are quasi judicial in nature and they

have to be specifically delegated. That provision finding no

place under section 81(1), that the power to evict could not

have been exercised by him.

8] It is not possible to accept this argument. In fact what the

Supreme Court holds in the case of Bombay Municipal

Corporation Vs. Dhondu Narayan Choudhary (A.I.R. 1965 S.C.

1486) would squarely apply in this case. In that decision,

the Supreme Court was considering a challenge to the order of

eviction from the Bombay Municipal Corporation premises.

The proceedings were initiated by one of the officers to whom

the powers of Commissioner were delegated in terms of

general delegation flowing from section 68 which is more or

less similarly worded as sub-section 1 of section 69 of the

BPMC Act. The argument was that the orders have not been

passed by the Commissioner. The judicial function of the

Commissioner had been delegated under the Commissioner's

wp5764com.doc

control and subject to his revision. The City Civil Court

(Appellate Authority) in that case, held that the officer who has

passed the order was not properly invested with the jurisdiction

and, therefore, his order was a nullity. The same contention as

was raised by Mr.Deshmukh and supported by others was

raised before the Supreme Court.

9]

The Supreme Court reproduced section 68 and other

sections and then held that sub-sections 1 and 2 of section 68

would refer to several provisions which include section 105B to

E. Therefore, they cover delegation of judicial power. In para 3

of this decision, the Supreme Court held thus:-

"3. No question has been raised that any of the amendments is ultra vires so the words of section 68 must be reasonably construed. It goes without saying that judicial power cannot ordinarily be

delegated unless the law expressly or by clear implication permits it. In the present case the amendment of section 68 by inclusion of delegation of the functions of the Commissioner under sections 105-B to 105-E does indicate the intention that the judicial or quasi judicial powers contained in Chapter

wp5764com.doc

6-a were expressly intended to be delegated. The the delegation as such there can be no objection.

What is objected to is the provision, both in the section as well as in the order of delegation, that the

exercise of the function is to be under "the Commissioner's contrtol" and "subject to his revision". These words are really appropriate to a delegation of administrative functions where the control may be

deeper than in judicial matters. In respect of judicial or quasi judicial functions these words cannot of course bear the meaning which they bear in the delegation of administrative functions. When the

Commissioner stated that his functions were delegated subject to his control and revision it did not

mean that he reserved to himself the right to intervene to impose his own decision upon his

delegate. What those words meant was that the Commissioner could control the exercise administratively as to the kinds of cases in which the delegate could take action or the period or time

during which the power might be exercised and so on and so forth. In other words, the administrative side

of the delegate's duties were to be the subject of control and revision but not the essential power to decide whether to take ction or not in a particular case. This is also the intention of section 68 as

interpreted in the context of the several delegated powers. This is apparent from the fact that the order of the delegate amounts to an order by the Commissioner and is appealable as such. If it were

not so the appeal to the Bombay City Civil Court would be incompetent and the order could not be assailed. The order of the delegate was the order of the Commissioner and the control envisaged both in section 68 and the order of delegation was not control over the decision as such but over the

wp5764com.doc

administrative aspects of cases and their disposal. No allegation has been made that the Commissioner

intervened in the decision of the case or improperly influenced it. In these circumstances the order

impugned in the appeal cannot be sustained."

10] To my mind, it is not as if the Supreme Court has held that

there has to be reference to the provisions, enabling the

eviction from Municipal Premises, in the Authority to delegate

or empowerment to exercise the powers of the Commissioner

and general wording of sub-section 1 of section 69 in this case

would be of no assistance. The Supreme Court has relied

upon general power and the general or special empowerment

by order in writing is the requirement and based on which any

of the powers, duties or functions conferred or imposed or

vested in the Commissioner may be exercised, performed or

discharged under his control and subject to such conditions

and limitations, if any, as may be prescribed by rules by any

Municipal Officer, whom the Commissioner may specifically or

generally empower by an order in Writing in this behalf.

Therefore, far from assisting, the observations of the Supreme

wp5764com.doc

Court in para 3 of this decision, would militate against the

submission that there has been no delegation in favour of

Deputy Municipal Commissioner. He cannot be said to be

usurper or a stranger to the Act or the authority envisaged

thereby. He is no stranger to the Corporation but is very much

an officer of the Corporation. If there is a general delegation by

an order in writing empowering him to exercise the powers and

that is not disputed, then, to my mind, the order passed by the

Deputy Municipal Commissioner in this case cannot be faulted.

11] The Dist.Judge committed no error in relying upon the

wording of the provision in question and the judgement of the

Supreme Court. The learned Judge has held that the

Commissioner's powers can be delegated to other officers. If

the Commissioner's powers have been delegated and which

powers include a power to order eviction from the Municipal

Premises, then, to my mind, the reasoning in the Dist.Court's

order cannot be faulted. The first contention, therefore, must

wp5764com.doc

fail.

12] Equally, there is no merit in the contention that the

petitioners cannot be evicted once they were ready and willing

to pay the amounts of rent or compensation charged by the

Municipal Corporation in relation to the Municipal Premises.

The argument is that the Corporation in fact performs a social

duty in allotting shop premises to needy persons like the

petitioners and, therefore, even if the initial period comes to an

end as long as the petitioners are ready and willing to pay the

amount and have offered the same for continuation in the

premises, then, that would not mean that they are unauthorised

occupants.

13] This argument is only stated to be rejected because in all

cases what has been found as a fact by the authorities is that

the Municipal Premises were allotted for a specific period to all

the allottees like the petitioners. That period has come to an

wp5764com.doc

end. There is no renewal of the term. In such circumstances,

each of the premises being located in prime locality and having

tremendous market value are sought to be disposed of by the

Corporation by inviting bids from the public. There is no

question of the petitioners, then continuing and once their

authority to occupy and use the same having come to an end.

None of the petitioners could produce any documents which

would enable them to urge that their offer or payment made is

stated to be in terms of the lease or the initial authority to

occupy and, therefore, the premises are continued in their

possession and occupation as an allottee or lessee, claiming

through the Corporation. In fact in the case of Ramchandra

Chetwani, the allegation is that the lease period has expired.

The authority has come to an end. The person is in occupation

without any authority from 1st April 1994 and such prolonged

occupation was termed as unauthorised and illegal and sought

to be put an end to. To my mind, once the allotments have

been made for a specific period and the period has come to an

wp5764com.doc

end, then, even if some sporadic payments have been made

and accepted is no ground to hold that the occupation is

authorised and not unauthorised as claimed by the

Corporation. The table or chart which has been set out in para

14 of the order of the learned Judge would indicate as to how

each of the occupant was inducted way back in the premises

but their authority to occupy the same has come to an end

either in 1994 or 2004. There is no question of renewal in their

favour. In these circumstances, it is no good contending that

the premises are lawfully occupied and possessed by the

petitioners.

14] Lastly, a faint attempt is made by urging that the order is

passed not in terms of sections 81-B but in terms of the Rules

which are framed in 2008 and which are under challenge in this

Court. The order read completely and properly would indicate

that it is in terms of the powers to evict persons from

Corporation premises under section 81-B, that it has been

wp5764com.doc

passed. The reference to rules has been made only with a

view to show that even after the period has come to an end and

has expired by efflux of time, none of the persons in occupation

have in terms of the 2008 rules sought lease in their favour and

such lease has not been granted in terms of the rules. It is only

to buttress and support the conclusion that the premises are in

unauthorised use and occupation that the reference is made to

the Rules. Beyond that it cannot be said that Rules are the

source of power and not section 81-B.

15] I find that all the three contentions, which were the only

pleas raised before me are without any merit. Then, there is no

alternative but to hold that the impugned order is not vitiated as

urged and the writ petitions be dismissed. They are

accordingly dismissed.

16] However, it is directed that in the event the Corporation

desires to auction or allot the premises by inviting public bids,

wp5764com.doc

then, the petitioners are at liberty to forward their bids and

offers and together with other offers the Corporation may also

consider the bids of the petitioners and shall not omit them from

consideration only on the ground that an order of eviction has

been passed against the petitioners and the appeal preferred

as also the petition are dismissed. Without being influenced by

the eviction proceedings, their bids may be considered and in

the event petitioners' bids match the price that is determined by

the Corporation or the Highest Bid, the Corporation may

consider allotting the premises to the petitioners on such terms

and conditions as are permissible in law.

17] At this stage a request is made to continue the ad-interim

order for a period of eight weeks or atleast for a period of four

weeks. This request is opposed by Mr.Kulkarni appearing for

respondents on the ground that the petitioners have lost

through out and secondly they have not paid anything. The

Corporation premises are public premises and cannot be

wp5764com.doc

occupied free of rent or compensation. Having regard to the

fact that Diwali festival is around the corner, interest of justice

would be served if the orders of eviction are stayed for four

weeks but on each of the petitioners filing an undertaking in this

court on or before 19th November 2012 to the effect that

(I) the premises are in their occupation and

possession;

(II)

that they will not create any third party interest

in the same nor they will part with the possession,

alienate or dispose of the same in any manner;

(III) They will pay the necessary monthly

rent/compensation to the corporation.

If no undertaking is filed as stipulated above the petitioners can

be evicted immediately without any reference to this Court.

(S. C. DHARMADHIKARI, J)