Bombay High Court
Priyadarshini Memorial Trust, Nanded vs Nanded-Waghala City Municipal ... on 24 July, 2025
2025:BHC-AUG:19848
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5788 OF 2016
Priyadarshini Memorial Trust, Nanded
Through its President-
Balasaheb s/o Jalabajirao Madhaswad,
Age 46 years, Occu: Business,
R/o Bajrang Colony, Nanded ... PETITIONER
VERSUS
Nanded-Waghala City Municipal Corporation,
Nanded, Through its Commissioner. ... RESPONDENT
Mr. S. V. Warad, Advocate for the Petitioner
Mr. M. D. Narwadkar, Advocate for Respondent
CORAM : R. M. JOSHI, J.
DATE : 24th JULY, 2025
JUDGMENT :
-
1. Heard learned Counsel for both sides finally at the stage of
admission.
2. This Petition takes exception to the order dated 8 th January,
2014 passed by the Principal District Judge, Nanded in Regular Civil
Appeal No. 116 of 2007 filed by the Petitioner under Section 81F of the
Bombay Provincial Municipal Corporations Act (for short 'BPMC Act')
taking exception the order passed by Municipal Commissioner, Nanded
under Section 81B of the BPMC Act, whereby the Petitioner was
directed to be evicted from the property owned by the Corporation.
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3. The facts which led to the filling of the Petition as narrated
in the petition can be recorded in brief as under:-
(i) The Petitioner is an Educational Institution and an aided
school. The premises of the school is situated on Survey No.1 and 2
admeasuring 1.5 acres at Asadullabad, Tq. and District Nanded. The
said land is declared reserved for the purpose of school and
playground. By resolution dated 16th October, 1992, the said land
allotted to the Petitioner for charitable purpose initially for a period of
three years on lease. It is claimed that on the basis of the said lease
the Petitioner is in possession of the subject land. The Municipal
Corporation sought recommendation of the said proposal for its
sanctioned of by the State Government. Admittedly the
recommendations has not been received till date. Thereafter, the
Petitioner sought permission to carry out construction and some
construction came to be carried out. The lease period came to be
renewed for further three years and initially Assistant Director of Town
Planning, Nanded had determined the rent at the rate of Rs.89,650/-
per annum. The Petitioner requested the Municipal Corporation for
reduction in the rent amount. The Municipal Corporation passed
resolution dated 30th October, 1995 fixing the lease rent at Rs.151/- per
month.
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(ii) It is further case of the Petitioner that the said amount of
rent as per the resolution was offered to the Corporation, however, the
Corporation refused to encash the cheque. It is alleged that the
Corporation tried to dispossess the Petitioner and hence the suit
bearing R.C.S. No. 194 of 2006 came to be filed for simplicitor
perpetual injunction. Temporary injunction Application came to be
allowed on 19th October, 2006 restraining the Corporation from
obstructing the possession of the Petitioner over the subject property.
The challenge to the said order in M.C.A. No. 125 of 2006 was
unsuccessful.
(iii) It is further case of the Petitioner that on 27 th February,
2006, Petitioner for the first time came to know that the Corporation
has passed order under Section 81B of the BPMC Act for eviction of the
Petitioner. It is further claimed that on 28 th February, 2006 request was
made for certified copy of the said order. But the said copy was not
supplied. Petitioner being aggrieved by the order passed by the
Corporation preferred Appeal on 28th September, 2007 before the
District Judge under Section 81F of the BPMC Act. The learned District
Judge, Jalgaon dismissed the appeal by passing order dated 8 th
January, 2014 in R.C.A. No. 116 of 2007. Hence, this petition.
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(iv) The Petition is opposed by Corporation by filing affidavit-in-
reply. It is specifically alleged that the Petitioner intents to grab the
Municipal property. There is specific statement made in the affidavit
that in the larger public interest for the further expansion of airport the
land is required by the airport authority and the development of airport
has been stalled. The Respondent-Corporation filed reply of Estate
Manager denying the contentions of the Petitioner. It is claimed that
since the Petitioner has failed to pay the lease rent, a notice was issued
to the Petitioner on 26th September, 2001 and after giving hearing,
order came to be passed by the Commissioner. It is specifically stated
on oath that the Petitioner is having its own premises at Bajrang
colony, Nanded which is four storied building in RCC structure having
32 rooms. It is also claimed that the Petitioner Institution is running
Marathi medium school in the said premises. The Petitioner is also said
to have been running a English medium school in the Bajrang colony
near the the Marathi medium school having 14 room with carpet area
of 3655 sq.ft.
4. Learned Counsel for the Petitioner submits that the
Corporation has failed to comply with the mandatory provisions of
Section 81B of the BPMC Act and the order under Section 81B of the
BPMC is passed without notice and hearing to the Petitioner. It is his
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submission that earlier the lease for 99 years was granted in favour of
the Petitioner by the Municipal Corporation, Nanded and thereafter the
Municipal Council by passing resolution dated 30 th October, 1995 has
decided the lease rent to be Rs.151/- per month and in such
circumstances, it was not open for the Corporation to claim the rent at
the rate of Rs. 89,650/- per annum as per the earlier lease. It is his
submission that the Petitioner is Education Institution and hence, even
otherwise the eviction of the Petitioner from the subject property in
cause inconvenience to the students.
5. Learned Counsel for the Respondent supported the
impugned order. It is his submission that the whole attempt of the
Petitioner is to some how keep the possession of the subject property.
It is his submission that the Petitioner cannot be allowed to blow hot
and cold at the same time. It is argued that if the Petitioner places
reliance on the resolution dated 30 th October, 1995, the said resolution
indicates that the period of the lease has already been expired. It is his
submission that Section 81B of the BPMC Act apart from non payment
of the lease rent provides a ground of unauthorized occupation of the
property for eviction. It is his submission by referring to the affidavit-
in-reply that the document on record clearly indicates about a notice
being issued by the Corporation to the Petitioner on 18 th October, 2001
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under Section 81B(2) of the BPMC Act. He further drew attention of the
Court to the order passed by the Commissioner indicating that the
hearing was held on 4 th September, 2004 and President of the Petitioner
Trust was present in the said hearing. It is his submission that there is
no specific denial of the said fact by the Petitioner. It is his further
contention that the Appeal has been filed beyond period of limitation
and hence the same has been rightly dismissed by the Appellate Court.
It is his submission that the Principal District Judge, Jalgaon has rightly
taken into consideration the facts of the case and has dismissed the
Appeal and that in exercise of writ jurisdiction no interference is
required therein.
6. In order to consider the submissions of the rival parties it
would be relevant to take note of the provision of Section 81B of BPMC
Act, 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 Corporation
premises has, whether before or after the commencement of the
Bombay Provincial Municipal Corporations (Second Amendment)
Act, 1969,-
(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
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are likely to diminish materially the value of impair
substantially 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 occupy
such premises;
(b) that any person is in unauthorised occupation of any
Corporation premises,
(c)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.
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 case, 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
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(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 subsection (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.
(4) The Commissioner may, after giving fourteen clear days'
notice to the person from whom possession, of the Corporation
premises has been taken under subsection (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).
(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."
7. This provision clearly indicates that in case of non payment
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of the lease rent so also on unauthorized occupation of the property
belonging to the Corporation, the said provision can be invoked. Record
indicates that notice dated 18th October, 2001 was issued by the
Corporation to the Petitioner. This notice was duly responded by the
Petitioner by letter dated 29th October, 2001. It is thus clear from the
said record that prior taking action under Section 81B of the BPMC Act,
notice was duly served upon the Petitioner. Apart from this there is a
specific mention in the order that the hearing was given to the
Petitioner on 4th September, 2004 and the President of the Petitioner
Trust appeared in the said hearing. It is thus not the case that the
order in question passed by the Commissioner under Section 81B of the
BPMC Act has been passed without notice or without giving opportunity
of hearing to the Petitioner.
8. It is the case of the Petitioner that a resolution was passed
by the Municipal Corporation, Nanded on 30 th October, 1995, wherein
the lease rent was fixed at Rs.151/- per month, however, the period of
lease was for three years. Learned Counsel for the Petitioner during the
course of the argument has sought to make submission that in respect
of the period of lease, the resolution passed by the Municipal Council
has not been approved by the State Government and therefore the
same would not apply. If, this submission is to be accepted, needless to
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say that the entire resolution passed by the Council has not been
approved by the State Government and hence, question of considering
the case of the Petitioner that the Petitioner was not liable to pay
Rs.89,650/- per annum to the by way of lease rent also does not
become acceptable. The Petitioner is trying to blow hot and cold
simultaneously which is wholly in permissible. The Petitioner cannot be
permitted to claim that the resolution in question passed by the
Municipal Council should be implemented in the piecemeal and only to
the extent it is beneficial to the Petitioner.
9. The afore stated facts clearly indicate that the Petitioner
was duly heard before passing of the order under Section 81B of the
BPMC Act. The said order came to be passed in the year 2004.
Thereafter, the Petitioner filed suit against the Corporation and obtained
interim injunction, however, no appeal was filed under Section 81F of
the BPMC Act till year 2007. The learned Principal District Judge,
Jalgaon framed issue with regard to the limitation and has recorded the
findings that the Appeal is barred by limitation. In the facts of the case
as indicated herein above, the said findings recorded by the Principal
District Judge being in consonance with the material on record require
no interference.
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10. On the merit also the learned Principal District Judge has
carefully taken into consideration the contention of the parties and
material evidence on record in order to hold that no case is made out
by the Appellant to cause interference in the order impugned before
him.
11. Since the order passed by the Commissioner of the
Municipal Corporation is on due compliance of provisions of Section 81B
of BPMC Act and also in view of the fact that the Petitioner is
unauthorizedly occupying the subject property, the order of eviction of
the Petitioner is fully justified. It is pertinent to note that after the
expiry of the period of lease, for years together the Petitioner has never
made an Application to the Corporation for extension of lease. In
absence of any such Application being made there was no obligation on
the part of the Corporation to extend the lease.
12. As a result of above discussion, there is no perversity in the
order impugned passed by the learned Principal District Judge
confirming the order passed by the Commissioner under Section 81B of
the BPMC Act, hence petition deserves to be dismissed and Petition
stands dismissed accordingly.
13. Learned Counsel for Petitioner seeks continuation of interim
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relief for period of six weeks. Though it is claimed by the Petitioner that
school is being run in the subject property, affidavit has been filed on
behalf of the Corporation indicating that actually the premises is not
used for running a school as there are other premises in which the
school is run. There is no rejoinder to this affidavit. Hence, the
contention of the Corporation deserves acceptance. In the facts of the
case request of continuation of interim relief stands rejected.
(R. M. JOSHI, J.)
ssp
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