Holding

Clause (b) of section 105B is applicable only when the Commissioner is satisfied that a prior valid determination of authority under clause (a) or (c) has rendered the occupation unauthorised; in this case, such a determination was absent, so the eviction order was improper.

Summary

The appellant, Prakash Warehousing Co., obtained a licence and later an assignment of rights over two corporation godowns and, with the corporation’s knowledge, allowed a second respondent to store goods under an agreement. The corporation later formalised the appellant’s status as principal occupier by a deed dated 17 June 1967, but served a notice of termination on 25 July 1969 and, after an enquiry, ordered eviction on the ground of sub‑letting contrary to the terms of occupation, deeming the appellant an unauthorised occupant under section 105B. The appellate officer set aside the eviction, finding that the corporation was fully aware of the sub‑tenant arrangement and that no change justified a determination of unauthorised occupation. The High Court, invoking Article 227, reversed this finding and held that the lease had been duly terminated, making the appellant liable to eviction under clause (b) of section 105B. The Supreme Court held that clause (b) can be invoked only after a valid determination of authority under clause (a) or (c), which was absent here, and therefore restored the appellate officer’s order. Consequently, the appeal was allowed and the High Court’s judgment set aside.

Issues considered

Whether clause (b) of sub‑section (1) of section 105B of the Bombay Municipal Corporation Act can be invoked to evict a person when the eviction is based solely on sub‑letting contrary to the terms of occupation.
Whether the High Court, under Article 227 of the Constitution, can interfere with the factual findings of the appellate officer in a summary eviction proceeding.
How ‘unauthorised occupation’ is defined under section 105A(d) and its applicability to occupants whose authority has expired or been duly determined.
Whether sub‑letting per se constitutes a ground for eviction under clause (a)(ii) of section 105B or only when it contravenes the specific terms of occupation.

Legislation cited

Bombay Municipal Corporation Act, 1888s. 105A, s. 105B, s. 105C, s. 105E, s. 105F, s. 105G, s. 105H, s. 68
Bombay Municipal Corporation (Amendment) Act, 1960
Constitution of Indias. Article 227

Subjects

unauthorised occupationevictionsub‑lettingsummary procedureBombay Municipal Corporation Actsection 105BArticle 227high court interferenceauthority to occupycivil appeal

Judgment

PRAKASH WAREHOUSING CO.
V.
A
MUNICIPAL CORPORATION OF GREATER BOMBAY
AND ANR.

MARCH 13, 1991
[T. KOCHU THOMMEN AND R.M.SAHAI, JJ .] B

Bombay Municipal Corporation Act, 1888-Sections 68 and 105A-
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. C
_.. The original occupant of the suit godowns had on 1.10.1963
granted to the appellant a licence in respect of the premises and subse-
quently 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 appel-
lant had in the meantime by agreement dated 27.3.1964 permitted the D
second respondent to store goods in the premises. The appellant there-
after requested the Corporation to recognise it as the principal occu-
pant 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. Subse-
\_ _ quently thedCodrp ora tion examdinefdt thet~efr~s ~tnd fcothndiCtions oft~he E
/ agreement ate 27. 3 .1964 an a er sa 1s ymg 1 se 1 e orpora mn
transferred the occupancy right to the appellant on the appellant ex-

- ecuting 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 F
followed by an enquiry under the Bombay Municipal Corporation Act
1888 which resulted in the order of eviction dated 6.1.1971, the appel-
lant being the principal tenant and the second repondent as a sub
tenant.

The enquiry officer, acting as a delegate in terms of section 68 and G
exercising the power of the Commissioner of the Municipal Corporation
of Greater Bombay, the first respondent under section 1958, ordered
eviction of the appellant on the ground of sub-letting the premises.

The enquiry officer, on inspection, found that the second respon-
dent was in occupation of the premises as a sub-Jessee that the appeJJant H

829
830 SUPREME COURT REPORTS (1991] 1 S.C.R.

had sub-let the premises contrary to the terms of conditions of occupa-
A tion and had thus become an unauthorised 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
B appreciation of the evidence and the terms of the agreements, the appel-
late 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
c appellant. The eviction of the appellan~ 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
D the circumstances had not altered so as to warrant an order of evicti~n
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
1058. The High Court accordingly set aside the order made by the
E appellate officer under section 105B and restored the order of eviction
made under section lOSB 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
F grounds, and that the application of clause (b) of sub-section (1) of
section lOSB, 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 appel-
G lant, the High Court was not justified in upholding the eviction of the
appellant on the very same ground.

On behalf of the respondent No. I-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 tpe agreement dated
H 17.6.1967 the appellant has, after the expiry of the period stipulated in
PRAKASH WAREHOUSING CO. v. MUNICIPAL CORPN . 831

.~ the notice dated 25.7.1969, become an unauthorised occupant, and is
A
liable to be evicted in terms of clause (b) of sub-section (1) of section
1058.

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 B
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
c
unauthorised occupation of Corporation premises. (839C]

2. Section 105A(d) defines 'unauthorised occupation'. This defi-
nition shows that occupation of Corporation premises without authority
for such occup.ation is an unauthorised occupation. Such occupation D
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 occupa-
tion at its commencement was under authority, but such authority has E
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 determina-
tion 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 detemination" has to be made in F
accordance with the procedure prescribed by the statute. [839D-H1

3. Clause (a) of sub-section (1) of section lOSB contains various
grounds upon which a person is liable to be evicted. Clause (b) says that
unauthorised occupation itself is a ground for eviction. Clause (c) pro-
vides that requirement in the public interest is a ground for eviction. G
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 Commis- H
832 SUPREME COURT REPORTS (1991] 1 S.C.R.

sioner under section 1058 or section 105C to the appellate officer, ':Ii_
A namely, the Principal Judge of the City Civil Court of Bombay (sec-
tion IOSF), whose orders are final and not liable to be "called in
question in any original suit, application or execution proceeding"
(Section 105G). [841E-G]

B 4. The satisfaction of the Commissioner, which is the condition
precedent to the exercise of power of eviction by the summary proce-
dure prescribed by the Act, may be in respect of any of the circums-
tances 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 pre-
c mises. They have no application to a trespasser. [ 841H-842B]

5. Likewise, clause (c) presumably applies to authorised occupa-
tion of Corporation premises, which the Commissioner is empowered to
terminate by ordering eviction of the occupant otherwise than on any of
D the grounds specified under clause(~), 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
E the Commissioner'!! power under clause (c). [842C]

6. Clause (b) is a powerful weapon for eviction of an unauthori-
sed 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
F authority under clause (a) or clause (c) of sub-section (1) of section
IOSB. [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
G occupation of the premises, he will be liable to be evicted on the ground
menti.oned in clause (b) of sub-section (1) of section 105B, but in accor-
dance with the procedure laid down in that section and on the satisfa- -~
tion of the Commissioner, expressed by an order, as to the lack or
.expiry of authority. (842E-F]

H. 8. Sub-letting as such, without more, is not a ground for evktion
.. ~
PRAKASH WAREHOUSING CO. v. MUNICIPALCORPN. [THOMMEN,J.]

under clause (a) (ii). what attracts eviction in terms of that provision is
833

sub-letting which is contrary to the terms or conditions of occupation. l 843C]
A

In the instant case, the appellate officer has found that the occu-
pation of the premises by the second respondent under the appellant
was well-known to the Corporation; the terms and conditions of that
occupation were dosely scrutinised by the Corporation before recognis- B
ing the transfer of rights and interest from the previous principal oc-
, >- cupant to the appellant; and, it was on that basis and with that
knowledge that the Corporation authorised the occupation of the pre-
mises 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 c
favour of the appellant. The appellate officer has categorically found
~"'-(
that there was no evidence whatsoever to indicate that the circums-
tances in which the premises had been occupied by the second respon-
dent 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 D
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 E
against the Corporation by the appellate officer. l 843H-844A1

- CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2589
of 1979.

From the Judgment and Order dated 8.8. 1977 of the Bombay F
\.-' 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. Shef- G
')..__ ali Khanna for the Respondents. ·

The J udgrrient of the Court was delivered by

THOMMEN. J. This appeai arises from the judgment of the
Bombay High Court in Special Civil Application No. 983 of 1972 set- H1
A
834 SUPREME COURT REPORTS [1991] 1 S.C.R

ting aside the order inade 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 Munici-
B pal Corporation of Greater Bombay, the first respondent, ("the
Corporation'').

By the impugned judgment, 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 appel-
c lant a licence i::i 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 had in the
meantime by agreement dated 27 .3.1964 permitted the second respon-
dent to store goods in the premises. The appellant thereafter
o 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 Ghatge & Patil (Trans-
port) Pvt. Ltd., the second respondent, had been already in occupa-
tion of the premises. Subsequently the Corporation examined the
terms and conditions of the agreement dated 27.3.1964 (as renewed
E from time to time) upon which the second respondent was allowed to
occupy 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,
F and, with the full knowledge of those terms, the appellant was
recorded in the Corporation's books 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.

G 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
H terms of section 68 and exercising the power of the Commissioner
PRAKASH WAREHOUSING CO. v. MUNICIPALCORPN. [THOMMEN,J.) 835

under section 105B, ordered eviction of the appellant on the ground of
A
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 the second respon- B,
dent was in occupation of the premises as a 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 respon-
dent. 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, slte passed an order of
eviction against the appellant. c
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 pre- D
mises, 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 reco-
~ gnised the appellant as the principal occupant. The Corporation was
thus at all material times aware of the appellant's relationship with the E
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 as to violate the terms
or conditions of occupation, the eviction of the appellant solely on the F
""~ 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 G
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 con-
trary 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. H
836 SUPREME COURT REPORTS [1991] 1 S.C.R

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 appellants, 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 occuRation of the
part of the premises and also in the terms a~d conditions
of the occupation. Although the subsequent agreement was
entered into between the appellants and th.e 2nd respon-
dent, it was on the same terms and conditions as the first
agreement which was produced before the ward officer
c before the transfer of tenancy in favour of the appellants
........ In this 'case, therefore, even if the agreement bet-
ween 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
D 2nd respondent, the said subletting was prior to the trans-
fer of tenacy 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 tltat
E ground ... "

This is essentially a fin.dirig of fact. The ord_er 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
F 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(l) clause (a) sub-
clause (ii). We are unable to agree with the finding given by
the learned Principal Judge that no change in the circumst-
G ances 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 estop-
ped from alleging that respondent No. 1 had sublet the
premises ..... "

H The High Court thus held that the appellate officer was wrong in
..
~

.,Ar(
PRAKASHWAREHOUSINGCO. v. MUNICIPALCORPN. [THOMMEN,J.] 837

saying that the circumstances had not altered so as to warrant an order
A
of eviction on the ground of sub-lease. The High Court also held thai
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
stated: B
>- if a tenancy is terminated in accordance with the
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."
t
The Corporation has indeed the power to order eviction on the
,
ground of sub-lettin~ 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 D
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 occupa-
tion 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 evi- E

-
deuce 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 Corpo-
ration to order eviction of the appellant on the ground of sub-letting
which is alleged to be contrary to the terms or conditions of occupa-
tion. The High Court, in our view, wrongly reversed the finding of fact F
v on that question by the appellate officer. Whether the circumstances
had changed or not was a question of fact and that fact has been
decided in favour of the appellant by the highest fact finding authority
under the Act. The question then is, whether, as found by the High
Court, it is open to the Corporation to have recours~ to clause (b) of
sub-section ( 1) of section 105B to order eviction of the appellant as an G
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 H
838 SUPREME COURT REPORTS [1991] 1 S.C.R.
~
A
entered into an agreement of occupation with the appellant on
D.6.1967, fully aware of the terms and conditions under which the
x
second respondent was in occupation of the premise~ 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
B 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 ill

c
view of the finding that the sub-lease granted or renewed by the appel-
!ant 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 perso.n and if it or any
y
part of it is assigned or sub-let to any other party, I will be
D liable to be ejected immediately".

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

"Each party may terminate the tenancy at the end of any
English Calendar month by giving to the other party one ~
E 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.
F
According to Mr. Bhasme, the agreement under which the
appellant occupied the premises has expired or has been duly deter-
~
mined by order of the competent authority. Further continuance by
_the appellant is an unauthorised occupation so as to attract the provi-
sions of section 105B. Apart from the grounds mentioned in sub-
G 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 occuption of the premises. The authority to occupy, he
says, is duly determined even if the determination is sought to be
H founded on the ground of sub-letting contrary to the terms and condi-
PRAKASHWAREHOUSINGCO. v. MUNICIPALCORPN. [THOMMEN,J.] 839

tions of occupation, or on any other ground specified in clause (a) or A
clause (c) of sub-section (1) of section 105B, and that ground is subse-
quently 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 B
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 c
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 occupa-
tion' in the following words:
D
"(d) 'unauthorised occupation in relation to any corpora-
tion premises; means the occupation by any person of
corporation premises without authority for such occupa-
tion; 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
E
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
F
has been "duly determined". The definition thus includes not only a
trespasser whose initial and continued occupation has never been
under any valied 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
G
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. H
840 SUPREME COURT REPORTS [1991] 1 S.C.R.

Section 105B, in so far as it is material, reads:
A
"S. 105B ( 1) Where the Commis~ioner is satisfied-

(a) that the person authorised to occupy any corpo-
ration premises has, whether before or after the com-
B mencement of the Bombay Municipal Corporation
(Amendment) Act, 1960, .

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

-
months, the rent or taxes lawflilly due from hill) in
respect of such premises; or
~-~
c (ii) sub-let, contrary to the terms or conditions
of his occupation, the whole or any part of such pre-
mises; or
y
(iii) committed, or is committing, such acts of
D 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; _-(
E
(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 the public
--
F interest.

the Commissioner may notwithstanding anything contained -~·
in any law for the time being in force, by notice (served l;>y
post. or by affixing a copy of it on the outer door or some
other conspidous part of such premises, or in such other
G 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 whithin one month of the date of the service of
the notice.

H (2) Before an order under sub-section (1) is made against
PRAKASH WAREHOUSING CO. v. MUNICIPALCORPN. [THOMMEN. J.] 841

any person, the Commissioner shall issue, in the manner A
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, B
(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 in-
terest in, the corporation premises, to show cause against C
the propsed order, on or before such date as is specified in
the notice.

(3) If any person refuses or fails to comply with an order D
made under sub-section (1), the Commissioner may evict
that person and any other person who obstructs him and
take posssession of the premises; and may for that purpose
use such force as may be necessary."
(emphasis supplied)
E
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 ground for eviction. Clause (c)
provides that requirement in the public interest is a ground for evic"
tion. 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 f
conferred sufficient power on the Commissioner to enforce an order of
eviction made by him under sub-section (1). For the purpose of hold-
ing an enquiry under the Act, the. Commissioner is invested with all the
powers of a Civil Court. (section lOSE). An appeal lies from every
order of the Commissioner under section 105B or section lOSC to the
appellate officer, namely, the Principal Judge of the City Civil Court of· G
Bombay (section lOSF), whose orders are final and not liable to be
"called in question in any original suit, application or execution pro-
ceeding" (section lOSG). ·

The satisfaction of the Commissioner, which is the condition
precedent to the exericse of power of eviction by the summary proce- H
842 SUPREME COURT REPORTS [1991] I S.C.R~

A dure prescribed by the Act, may be in respect of any of the circums-
tances 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 Corpora-
tion premises. They have no application to a trespasser. This is clear
B
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 applies to authorised occupation of Corporation
premises, which the Commissioner is empowered to terminate by or-
dering eviction of the occupant otherwise than on any of the grounds
specified under clause (a), provided the Commissioner is satisfied that
c the permises 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 evic-
tion. Construction of parks, playgrounds, hospitalls, colleges, mar-
kets, destitute-homes and the like will indeed qualify for invoking the
Commissioner's power under clause (c), Clause (b), on the other
D
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 autho-
rity under clause (a) or clause (c) of sub-section (1) of section 105B.
E
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 occu-
pation has expired in terms thereof and he continues to remain in
occupation of the permises, 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
F
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-
G
section (i) for determination of authority has been established. In the
absence of such a valid order invoking clause (a) or clasue (c), a person
in occupation under authority, which has not expired, is not liable to
be evicted under section 105B. We do not accept Mr. Bhasme's argu-
ment to the contrary on this point. ,
H
It is not the case of the Corporation that the authority under
PRAKASH WAREHOUSING CO. v. MUNICIPAL CORPN. [THOMMEN, J.] 843

k which the appellant has been in occupation has expired in terms A
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. B
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
grnund 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. c
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 of occupation.
The appellate officer has found that the occupation of the premises by
the second respondent under the appellant was well-known to the D
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. E

In such circumstances, whatever right of occupation which the
seconnd respondent enjoyed under the appellant must be deemed to
have been incorporated as a term of the authority granted be the
Corporation in favour of the appellant. The appellate officer has
categorically found that there was no evidence whatsoever to indicate F
'v 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 contitions under which the appellant was recog-
nised 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. As stated by the High G
\,..._ Courtd, this :'as tdhbe otnhly groun d on wff?ich ehvictionbwas sougbhl~' handd that
groun , as 1oun y e appe 11 ate o icer, as not een es ta is e .

In proceedings under Article 227 of the Constitution, the High
Court was not, in our view, justified in interfering wi~h the finding of
H
844 SUPR~MJ::: COURT REfO~TS

A fact rendered against the Corporation ·by the 11ppellate officer. )J..
Accordingly, we set aside the impugned judgment of the High Court
and restore the order of the appellate officer.

The appeal is allowed in terms of what is stated above: The
parties shall, however, bear their respective costs.
B
N.Y.K. Appeal allowed. .
~