Bombay High Court
Municipal Corporation Of Greater ... vs N.A. Qureshi And Anr. on 6 March, 1986
Equivalent citations: 1986(2)BOMCR315
JUDGMENT C.S. Dharmadhikari, J.
1. This writ petition has been filed by the Municipal Corporation of Greater Bombay and others against the order passed by the Principal Judge of the Bombay City Civil Court, Bombay allowing the appeal filed by the respondent and setting aside the eviction order passed against him by the competent authority. It is an admitted position that the respondent Qureshi was an employee of the Bombay Electric Supply and Transport Undertaking. He had signed an agreement of leave and license and had agreed to abide by the occupancy rules. He retired from service of the Undertaking on attaining the age of superannuating. The competent authority, therefore, called upon him to vacate the premises allotted to him since the leave and licence agreement stood revoked on the retirement. Since no reply was received from him a show cause notice was served on him to show cause within 14 days as to why the eviction order should not be made against him. The respondent was also given a reasonable opportunity to show cause and of being heard. Ultimately an order of eviction came to be passed. Being aggrieved by this he filed an appeal before the Bombay City Civil Court, Bombay which was heard and decided by the learned Principal Judge of the Bombay City Civil Court, Bombay.
2. The learned Principal Judge allowed the appeal filed by the respondent on sole ground that no show cause notices were issued to the members of his family. It is also an admitted position that these family members had no independent right, title and interest to the suit premises nor they claimed any such right, title and interest therein. It is this finding of the leaned Principal Judge which is challenged in this writ petition. Thus the controversy raised in this petition depends upon the interpretation and construction of section 105-B of the Bombay Municipal Corporation Act.
3. The said section came up for consideration before a Single Judge of this Court (Jamdar, J.) in an Appeal No. 467 of 1984, Ajit s/o Baburao Ramchandra Sawant &others v. General Manager, Best Undertaking of the Municipal Corporation of Greater Bombay & others. After considering the various contentions raised before him in para 13 of the judgement, this is what Jamdar, J., has observed:
"13. An analysis of these definitions will make it clear that occupation of premises contemplates possession, either actual or constructive or control over, or enjoyment of the premises in pursuance to a right possess or to have control or of enjoyment real or purported. Mere residence alongwith the person who has or had a right to possess the premises, as a member of his family or with his permission does not amount to possession and much less occupation. A member of allottees family who resides in the premises alongwith the allottee cannot be said to be in possession or occupation of the premises in his or her own right. The possession and occupation is that of the allottee and not of the members of his family. It is not necessary that the right to possess or control or enjoy premises should be conferred by, or exercisable against the true owner. The right might be created by or exercisable against a person in unauthorised occupation of the premises or whose occupation has become unauthorised. A persons who claims to be in occupation in exercise of a right and on his own behalf. A member of the family residing as such with a person who is in unauthorised occupation or whose occupation has become unauthorised has no right to be in occupation either against the said person or against the true owner. Such a person cannot be said to be in occupation of the premises."
Thereafter the learned judge has made a reference toe the decision of the Supreme Court in , Upper Ganges Sugar Mills Ltd. v. Khal-ul-Rehman , Amba Prasad v. Mohammad Ali Shah and others , Raj Kumar Diwandar Singh v. State of Punjab and others , M/s. Jain Ink Mfg. Co. v. Life Insurance Corporation of India and others, as well as , Dr. Mohammad Ebrahim v. Syed Ahmed Khan, and after considering all those decision the learned judge ultimately held as under :
"20 sub-section (1) of section 150-B contemplated eviction of persons included in Clauses (a) to (b) of that sub-section alongwith all other persons, who may be in occupation of whole or any part of the premises and in view of sub-section (2) such other persons must also be served with a notice to show cause. The other persons contemplated by sub-section (1) do not cover the relations or dependents of the persons classified in Clauses (a) to (c) of sub-section (1). The operative clause of sub-section (1) covers all sub-clause of sub-section (1) and the general provision is made to empower the authority to pass an order operative not only against the persons describes in those sub-clauses but all other persons who are in 'occupation' of the premises in the legal sense other term. In a given case a persons may unauthorisedly encoach upon the Co-operation land, construct building thereon and sell the tenements to different persons. Such persons, who occupy the tenements in their own right, though available against persons had who constructed the tenements, are such other persons in occupation of the Corporation premises and if they are sough to be evicted alongwith the person who constructed they tenements they must also be served with notices to show cause. It is also pertinent to note that if Corporation premises in the occupation of any persons are required by the Corporation in the public interest, such person as well as any other person who may be in occupation of the whole or any part of the premises lawfully can be evicted under sub-section (1). Such premises might have been occupied by a person lawfully and he might have lawfully inducted sub tenants or if the premises was land, he might have lawfully constructed tenements as sold or released them out to different persons. All such persons can be evicted if the premises are required by the Corporation in the public interest. Such are the other 'persons concerned' contemplated sub-section (2) and not the relations and dependants who have to go alongwith the allotee of the premises.
21. The appellants are members of the family of the respondents and are admittedly residing in the said premises in that capacity. They do not claim to be in possession or occupation of the premises in their own right. No separate notice under section 105(2) need, therefore, be served on them. The order of eviction passed against the third respondents us binding on all of them."
Shri Vashi the learned counsel appearing for the respondents practically reiterated the arguments advanced by him before the learned Single Judge. In our view since no other view is possible of the said provision of the Act since we generally agree with the view taken by the single Judge in Appeal No. 467 of 1984, it is really not necessary to reproduce the argument before us.
4. As observed by the Supreme Court in Sheikh Gulfan and otheres v. Samat Kumar Ganguli .
"Normally, the words are used in statute have to be construed in their ordinary meaning; but in many cases, judicial approach finds that the simple device of adopting the ordinary meaning of words does not meet the ends of a fair and a reasonable construction. Exclusive reliance on the bare dictionary meaning of words may not necessarily assist a proper construction of the statutory provision in which the words occurs. Often enough in interpreting a statutory provision, it becomes necessary to have regard to the subject matters of the statute and the object which it is intended to achieve. That is why any deciding the true scope and effect of the relevant words in any statutory provision, the context in which the words occur, the object of the statute in which the provision is included and the policy underlying the statute assume relevance and become material. As Halsbury has observed the words 'should be construed in the light of their context rather than what may be either their strict etymological sense or their popular meaning apart from that context."
5. The word occupier is not defined is the Act. Chapter 5-A was inserted by the Maharashtra Act 14 of 1961 to provide for speedy remedy for eviction of the persons in unauthorised occupation of the Corporation premises. Therefore, if the construction suggested by Shri Vashi is accepted then the very purpose the Act will be frustrated.
6. The learned Counsel has to placed reliance upon the decision of the Supreme Court in A.I.R. 1980 S.C. 1856, Industrial Supplies Pvt Ltd. and another v. Union of India & others . In Industrial Supplies Pvt. Ltd's case the Supreme Court has held that raising contractor who in actual use and physical possession and enjoyment of colliery is occupier within the said expression as used is section 3(a) of the Cooking Coal Mines Nationalisation Act, 1972 read with section 2(1) of the Mines Act, 1952. However, it is pertinent to note that it was so held by the supreme Court because the petitioner therein were in possession of colliery in their own right, by virtue of the substantial rights acquired by them under the agreement and were not in possession on behalf of somebody else. This clearly shows that to be an occupier the person the must be in possession in his own right and should not be in possession on behalf of somebody else. If he is in possession on behalf of somebody, then he cannot claim that he is in occupation of the premises. In our view some principal should apply to the present case also. The possession on behalf of somebody else was not in contemplation of Legislature so as to equate such possession with occupation within the contemplation of section 105-B of the Act. Section 105-B Sub-section (2)(b) reads as under ---
"2(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.
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 pleader.
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.
7. If the words and expressions used in this section are read together and harmoniously then the obligation to serve notice, is qua those persons who claim independent right to occupation or interest in the Corporation premises. Otherwise notice will have to be given to a guest or servant or children. This will result in absurdity and the provision will also become impossible of compliance. The members of the family of the Licensee live in the premises on his behalf and have no independent right or interest. They swim or sink with the Licensee. Therefore, a conclusion is inevitable that the members of the family who are not claiming any independent right or interest cannot be said to be the persons in occupation or persons claiming an interest in the Corporation premises. Hence in our view the view taken by Jamdar, J., in Appeal No. 467 of 1984 is the only possible view of the matter and it does not require any reconsideration.
In the result, therefore, Rule is made absolute and the order passed by the Principal Judge of the Bombay City Civil Court, Bombay dated 7th March, 1984 is set aside and the order of eviction passed against the respondent is restored. However, in the circumstances of the case there will be no order, as to costs.
After the judgment was delivered Shri Vashi the learned Counsel appearing for the respondents orally prays for leave to Supreme Court. Leave refused. However, Shri Singhavi the learned Counsel appearing for the petitioners Municipal Corporation makes a statement that the Municipal Corporation shall not execute the order of eviction against the respondent for a period of one month from today. This is subject to the condition that before moving the Supreme Court the respondent shall serve at least four clear days notice upon the petitioners-Municipal Corporation. Shri Vashi agrees to do so.