Final Order 2

Order Details: Copy of Judgment
Pdf Text: Presented on 02/04/2019
Registered on 10/04/2019
Decided on 25/06/2019
Duration Yrs. M. Days
00 02 16
CNR No. MHCC010037792019
EXH.9
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
MISCELLANEOUS APPEAL NO. 119 OF 2019
IN
ENQUIRY NO. A/17/MKT OF 2017
Rajendra Kumar Mangala.
Shop No.34, Chhatrapati Shivaji Maharaj Terminus,
Subway, Mumbai – 400 001. ...Appellant.
V/s.
The Municipal Corporation of Greater Mumbai.
Having offices at Municipal Head Offices,
Mahapalika Bhavan,
Mahapalika Marg, Fort,
Mumbai – 400 001. ...Respondent.
Appearances:
Learned Adv. Mr. G.V. Murti alongwith learned Adv. Mr. Mohan Rao &
learned Adv. Mr. R.A. Malandkar I/b MSR Associates for appellant.
Learned Adv. Mr. A.V. Diwte for respondent/MMC.
CORAM : HIS HONOUR JUDGE
SHRI SADRUDDIN A. QUAZI
(C.R.No.04).
DATED : 25th June, 2019.
: J U D G M E N T :
1. This is appeal under section 105F of the Mumbai Municipal
Corporation Act (hereinafter it shall be referred to as "Corporation
Act"). The appellant is aggrieved by the order dated 15.03.2019 passed
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and by the subsequent issuance of notice dated 15.03.2019 under
section 105B(2)(1) respectively of the said Corporation Act. The
impugned order is passed by the Enquiry Officer duly delegated with
the powers of Municipal Commissioner under section 105B of the
Corporation Act. By the impugned order, the Enquiry Officer Shri
Vaidya has directed the appellant to vacate the enquiry premises within
one month from the date of service of the notice under section 105B
(1) of the Corporation Act. Consequent to the impugned order, the
impugned notice has been issued under section 105B(1) of the
Corporation Act by the Enquiry Officer addressing the appellant and
calling upon the appellant to vacate the enquiry premises. In the
impugned order, the Enquiry Officer has held that the appellant is liable
to be evicted on the following grounds :
(1) The appellant is in unauthorised occupation of the enquiry
premises.
(2) The enquiry premises is required for public purpose i.e. for
safety of the public as to avoid over crowing and congestion of the
CST subway situated within Mumbai city.
2. The appeal No.114/2019 to 130/2019, 132/2019, 134/2019 to
137/2019 including the instant appeal, have been heard together as
most of the facts, evidence and documents and submissions are
common in all these appeals. The parties of all the appeals have also
relied and referred to compilation of documents and evidence filed by
appellant in appeal No.114/2019. This compilation comprises of
VolumeI, II and III and documents with the list exhibit6 of the record
of appeal No.114/2019. The parties have also relied on the documents
and evidence of each appeal.
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3. Following facts can be said to be not in dispute between the
parties :
(a) The respondent corporation is constituted under the
provisions of Mumbai Municipal Corporation Act. Near about 51 shops,
each admeasuring approximately 15 Sq. Mtrs., have been constructed
by the respondent on the sides of the subway situated at Chhatrapati
Shivaji Maharaj Terminus, Mumbai (CST). The appellant had filed
copies of resolution No.43 and 72 passed by the improvement
committee of the Municipal Corporation on the Municipal
Commissioners proposals dated 11.05.2001 and 28.06.2001 for
allotment of the shops of the said subway to the tenderers etc. But the
Enquiry Officer did not allow the appellant to rely on these documents
and Enquiry Officer has also not sent these documents produced by the
appellant to this Appellate Authority. The learned Advocate of the
appellant has produced those copies in this appeal before this Appellate
Officer/Authority and sought permission to rely on these documents.
The learned Advocate of the respondent has conceded that these
documents were produced before the Enquiry Officer. Therefore, the
appellant is allowed to produce the said documents and the parties are
allowed to rely on it, in view that, they are concerned to the issues
involved. The facts mentioned in these copies of resolution No.43 and
72 are summarized as under :
Initially the corporation had called tenders thereby inviting offers
from public for allotment of 47 shops on leave and licence. On
27.03.2000, improvement committee of the Municipal Corporation by
resolution No.142 accorded sanction under section 92(c) of the
Corporation Act for allotment of 7 shops by accepting offers of the
tenderers. The allotment of each of those 7 shops was with condition of
payment of one time royalty amount of the Rs.79,200/ per Square
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Meter and compensation amount at the rate of Rs.660/ per Square
Meter. Thereafter, again the tenders were called for offers so as to
reach to the Corporation on 02.02.2000, for allotment of the remaining
shops. This time, 4 tenderers submitted tenders. Out of them, 3
withdrew their offers and only one tenderer was alloted one shop with
the sanction of the improvement committee vide resolution dated
13.03.2001. As at this time, the response from the public was very low
to submit their tenders, opinions of private valuers and Land
Acquisition and Development Department were taken by the
Corporation and considering the same, the Corporation reduced the
minimum one time royalty amount to Rs.46,650/ per Square Meter
and monthly compensation to Rs.390/ per Square Meter. With these
changes, again tenders were invited from the public for allotment of the
remaining shops. At this time, 83 tenders were received and out of
them, only 12 had offered more amount than the minimum royalty. So
their tenders were accepted and 12 shops from the remaining shops
were alloted to those 12 tenderers on leave and licence basis, with
condition that the monthly compensation shall be increased by 50%
after each 5 years block period. This was done with the sanction of
improvement committee of the Corporation by their resolution No.43
under section 92 (c) of the Corporation Act. Even, after allotment of the
20 shops, 27 shops remained at the said subway, without allotment. So,
to make the tender notice attractive to public, some modifications were
thought to be made in the tender notice, in respect of the remaining 27
shops, about liberty to the higher bidders to choose the shops for
allotment to them. With this modification and fixing minimum royalty
amount at the rate of Rs.46,750/ per Square Meter, the tenders
inviting offers from public to reach to the corporation on 21.03.2001,
were called for allotment of the shops. The said tenders were called on
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conditions mentioned in the tender notice, published by the Municipal
Corporation. This time, 24 persons submitted 34 tenders for 27 shops
quoting more than the prescribed minimum amount of one time
royalty. The shops were alloted to them with the sanction of
improvement committee under section 92 (c) of Corporation Act, as per
resolution No.72 on leave and licence basis and as per terms and
conditions of the tender notice.
(b) There is also no dispute about existence of tender
document exhibitA produced by the Corporation before the Enquiry
Officer. It is copy of tender document. Tender document comprises of
(1) general directions to the tenderers, (2) form of tender, (3) special
conditions (terms and conditions), (4) agreement form, (5) letter of
offer, (6) annexures, (7) contract directions showing details of the
shops in the subway. As per the tender notice, reffered to above, the
appellant purchased the tender document by paying its cost and by
depositing earnest money of Rs.2,00,000/, refundable if tender is not
accepted. Then, he submitted his tender duly filled in to the
Corporation. The Corporation accepted it and alloted enquiry
premises/shop to the appellant. As per the terms of the tender
document and its annexures, the appellant executed document of
agreement regarding leave and licence. The agreement contains various
terms and conditions. The said agreement is marked as exhibitB. On
execution of the said agreement, the enquiry premises was given to the
appellant and appellant came to be in occupation thereof accordingly.
This premises is the subject matter of the instant appeal and it shall be
referred to as enquiry premises.
4. It appears from the record and proceedings of the Enquiry Officer
that the respondent Corporation submitted the presentation form and
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documents to the Enquiry Officer proposing to pass order to evict the
appellant from the enquiry premises under section 105B of the
Corporation Act. In the presentation form, it is submitted that the
enquiry premises is required in public interest and occupation of the
appellant over enquiry premises is unauthorised. Thereupon, Enquiry
Officer served a notice under section 105B(2) of the Corporation Act,
stating that he is satisfied to propose to pass such order on the ground
of appellant being in unauthorised occupation and also on the ground
that the enquiry premises is required in public interest to avoid over
crowding and congestion in the subway.
The case of the respondent Corporation is stated by their witness
and also as stated in documents referred to by him before the Enquiry
Officer, may be stated as under :
(a) Enquiry premises was alloted to the appellant on leave and
licence basis as per the aforesaid agreement executed between the
parties. The commercial as well as central/state/semi state and also
corporate offices are located at CST. Nearby, 30 to 35 lakh people
commute to CST subway. It has been always over crowded and
congested because of continues and unending flow of people. The
respondent Corporation therefore, intends to use the shops in the form
of open spaces, exclusively for the purpose of lakhs of pedestrians
coming to this subway. The witness of the respondent has stated that
the corporation proposes to get enquiry premises and other nearby
premises (in respect of which other enquiries were separately held and
the order of Enquiry Officer is challenged in the connected appeals)
vacated. It is stated by the witness of the respondent that the area
would be used as open space for providing several services like putting
information like kiosks, video walls, dissemination of information of
civil related issues etc. According to the respondent, this measure is
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taken to avoid any inconvenience to the pedestrians.
(b) The witness of the respondent corporation has also stated
before the Enquiry Officer that clause (32) of the leave and licence
agreement of the appellant clearly states that the licence shall be
revoked, withdrawn or terminated with one months notice in writing,
without assigning any reason what so ever.
(c) The witness of the corporation has stated that in the
aforesaid facts, the Municipal Corporation has taken decision not to
renew the agreement of the appellant. The said decision vide No.
MGC/F/7039 dated 08.07.2015 is taken by the Municipal
Commissioner on the proposal of Assistant Municipal Commissioner.
Thereafter, the corporation issued notice dated 23.06.2016 asking the
appellant to vacate the premises for aforesaid reasons. The appellant
had challenged this notice by filing Writ Petition in the Hon'ble High
Court. The Hon'ble High Court has set aside that notice observing that
Corporation is not precluded from evicting the appellant from the
enquiry premises by following due process of law.
(d) After the said order of the Hon'ble High Court, the
respondent Corporation has issued notice dated 29.04.2017, calling
upon the appellant to give vacate and peaceful possession of the
enquiry premises to the respondent corporation on or before
31.05.2017. The appellant has given reply to that notice and thereby
refused to comply that notice. Therefore, the respondent Corporation
proposed to the enquiry officer that an order be passed for the eviction
of the appellant from the enquiry premises. The witness of the
Corporation relied on the documents as referred to above, which are as
under :
(1) Tender notice calling offers from public for allotment of
shops.
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(2) Agreement between the appellant and the respondent of the
year 2001.
(3) Copy of sanction of Municipal Commissioner dated
08.07.2015 in respect of getting enquiry premises and other
premises vacated.
(4) Copy of notice dated 23.06.2016 whereby the corporation
called upon the appellant to vacate the premises in public interest
to avoid over crowding in the subway.
(5) Copy of order dated 27.10.2016 passed by the Hon'ble High
Court in Writ Petition No.1990 of 2016 in respect of the setting
aside of the aforesaid notice dated 23.06.2016, giving liberty to the
Corporation to evict the appellant by following due process of law.
(6) Copy of notice dated 29.04.2017 issued by the Corporation
to the appellant calling upon him to evict the premises and hand
over possession thereof to the corporation.
(7) Reply of the appellant given to the respondent's notice dated
29.04.2017.
(e) In the aforesaid documents of Sr. No.3,4 and 6, the
Corporation has observed that the leave and licence agreement of the
year 2001, in respect of the enquiry premises was only for 10 years
block period and the said period has expired in the year 2011 and
thereafter, the licence period has not been extended by executing any
fresh agreement for further period. In the aforesaid documents, the
Corporation has also observed that the requests have been made by the
association of the shopkeepers including the appellant for renewing the
agreements, but as the Corporation has taken decision not to renew
agreement, the occupation of the appellant has become unauthorised
and enquiry premises is required for public interest to avoid over
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crowding. Therefore, the appellant is liable to be evicted. Therefore, the
respondent Corporation has requested to Enquiry Officer to exercise the
powers under section 105B under subsection (2) and to initiate
proceedings and to pass order of eviction under subsection (1) of
section 105B of the Corporation Act.
5. As noted herein earlier, the Enquiry Officer served notice under
subsection (2) of section 105B of the Corporation Act, to the appellant
proposing to pass eviction order on the grounds stated herein earlier,
asking the appellant to show cause as to why such order should not be
passed.
6. The appellant gave reply to this notice in detail. The appellant
has also examined himself as witness in the course of the enquiry and
has also produced the documents, before the Enquiry Officer . The sum
and substance of his reply and his evidence may be stated as under:
(a) The appellant is not unauthorised occupier of the enquiry
premises as alleged by the respondent corporation. According to the
appellant, the allotment of the enquiry premises to him was on
permanent lease basis, though the agreement of the year 2001 is
purporting to be a leave and licence agreement in as much as the initial
period of 10 years agreement was to be extended by 5 years block
period after expiry of each such block period. The respondent
corporation has accepted rent from the appellant even after expiry of
the first block period of 10 years. By the said action of accepting rent,
the respondent corporation is deemed to have extended the lease for
the block period from 2016 to 2021, being third block period of lease
and fourth block period on rental. Hence, the purported termination of
this agreement by the respondent by issuing notice dated 29.04.2017 is
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totally arbitrary, illegal, malafide and contrary to law. The agreement
will have to be read in toto alongwith other documents of tender notice
and tender form and terms and conditions mentioned therein. The true
construction of the documents if read in toto alongwith the surrounding
circumstances is that it is lease and not leave and licence agreement.
(b) The huge amount of non refundable royalty, forfeiture of
security deposit in case of default of any of the terms and conditions of
the licence and tender notice etc. are the surrounding circumstances
which lead to the above construction of the agreement that the
agreement is for permanent lease.
(c) The said subway was constructed at considerable cost to
the corporation and in order to recover the construction cost of the
subway, the then improvement committee, standing committee and
general body of the Municipal Corporation had approved the proposal
that the said shops be given on long lease on such terms of payment of
royalty and rent as may be approved by the improvement committee
and general body of the corporation. The tenders were floated for
allotment of 47 out of 51 shops. As the shops were allotted with
sanction of improvement committee, standing committee, without their
sanction the shops cannot be taken back by terminating or revoking the
agreement by the Municipal Commissioner. In this regard, reference is
made to section 69 and 92 (c) of the 105B of the Corporation Act.
(d) In the year 2009, before the expiry of first block period of
10 years, the corporation had issued notice to the appellant and
occupants of other shops in the subway. Thereby, the corporation had
proposed to terminate the agreement after expiry of 10 years block
period. Then, meeting was held between the parties on 15.10.2010.
Subsequent to it, the said notice was withdrawn and shopkeepers were
assured that renewal of lease as per the agreement for further period of
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5 years each would be entered in due course of time and they should
continue to be in possession and pay rent as per the terms of the
original agreement. Respondent should produce minutes of the said
meeting, according to the appellant. However, after the year 2011, the
formal agreement of renewal of lease was not entered into by the
corporation, even though several requests were made by the association
of the shopkeepers of the subway. In fact, the appellant has paid the
rent at enhanced rate and invested huge amounts of money on the said
premises, on the promises made by the officers of the corporation that
the said lease period will be extended from time to time, as per the
agreement after expiry of each 5 years block period. Hence, being
“state” within the meaning of the term “state” given under Article12 of
the Constitution of India, the corporation cannot act arbitrarily and
high handedly and it cannot go back of the said promises of its officers.
The action of the corporation to terminate the lease of the appellant is
also bar under principles of “legitimate expectations” and “promissory
estoppal”.
(e) The matter regarding renewal of agreements of
shopkeepers was dealt with by officers of the corporation from
15.03.2010 onwards on various dates. Ultimately, Assistant
Commissioner (market) put up proposal for renewal of agreement of 46
shopkeepers after expiry of first block period of 10 years on 08.05.2012.
The then DMC(special) forwarded the said proposal to the then
Additional Commissioner (W.S.)with recommendation on 19.05.2012.
The proposal as recommended to the Additional Commissioner was to
renew the agreements of 46 shopkeepers on same terms and conditions
as of the original agreement. Thereafter, proposal of the market
department dated 20.08.2012 was approved by the Assistant
Commissioner under No.AC/Mkt/3390/L9 dated 21.03.2013 and on
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same date, he forwarded the papers to the Additional Municipal
Commissioner (W.S.) for his order/approval. As per the said proposal, it
was decided that the corporation will invite fresh tenders for allotment
of 46 shops by incorporating the specific condition of first right of
refusal to the existing occupants of each of the shops and to continue
the existing shopkeepers till the finalization of the tender process with
payment of increased rate of rent as per the earlier agreement. The then
Additional Municipal Commissioner (W.S) on 06.09.2013 had approved
the said proposal and had directed his subordinate to do needful on
priority basis. Thereafter, the department and the corporation did not
comply with the said order of Additional Municipal Commissioner. The
appellant and the occupiers of the other shops were awating the said
orders of the Additional Municipal Commissioner to be implemented.
Thereafter, the several representations were made by the shopkeepers
through their association for implementation of the said orders, but the
same were kept pending.
(f) By the letter dated 02.07.2013, the corporation had called
upon the shopkeepers through their association, to pay the enhanced
rent upto 2013. The association of shopkeepers by its letter dated
16.07.2013 informed to the corporation that rents at the old rates had
already been paid by the shopkeepers and only differential amount was
required to be paid. The association also forwarded the individual
cheques of the shopkeepers for amount actually due and payable. The
corporation on its part accepted the said payment without any
intimation that the acceptance is without prejudice to their rights.
Subsequent to the said order of 2013 also, the appellant has been
paying the rent regularly. In view of this, the corporation is deemed to
have extended the period of agreement. Hence, it cannot be said that
the occupation of the appellant is unauthorised.
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(g) From the year 2010 till 2015 to 2016, there was no
complaint with regard to the alleged increased foot fall in the subway
nor was their any complaint about over crowding in the subway. The
footages of CCTV cameras installed in the subway would indicate that
there was never any congestion or over crowding in the subway from
the year 2010 onwards. It appears that sometime on letter dated
02.02.2015 of Mr. Yashodhar Phanse, Chairman of the standing
committee, and pursuant to the point of order raised by Mr. Ganesh
Sanap in market and garden committee meeting held on 13.05.2014,
the Assistant Commissioner put up report on 29.09.2015. There in the
Assistant Commissioner stated that shops in the subway is absurd and
against the convenience of pedestrians. In that report, the Assistant
Commissioner therefore, proposed to evict the shopkeepers. He has also
reported that the offices of the corporation be shifted to those shops in
the subway. That report is not commenting about the earlier decision of
the Additional Commissioner taken out in the year 2013 in respect of
the calling of fresh tenders with liberty to the occupiers in respect of
first right of refusal and to continue in occupation till finalization of
tender process. Without considering the said earlier decision, it appears
that the orders were passed by the commissioner in the year 2015 for
eviction of the shopkeepers. This clearly shows malafide intention of the
officers of the corporation. The purpose of vacating shop premises in
this report of the Assistant Commissioner, is contradictory to the
purpose of avoidance of alleged over crowding. So called over crowding
attributed to the unauthorised hawkers is due to in action on the part of
the corporation officers against such hawkers.
(h) The existence of shops of appellant and other occupiers of
the shops of the subway, does not cause any hindrance to the
pedestrians as their shops are situated at distance from the pillars
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abutting to the subway. Width of the subway is 40 feet on one point
and 30 feet on the other point, which is more than sufficient to handle
crowd. In support of the above contentions, the appellant has referred
to the report of Mumbai Rail Vikas Corporation Ltd. It is with regard to
the passengers using the suburban rail services. This report shows that
number of passengers using the CST station during 14 hours i.e. from
8 a.m. to 10 p.m. is much less than 35 to 40 lakh, as alleged by the
corporation. Hence, the contention of the corporation that 35 to 40
lakh passengers use the CST station is totally incorrect and hyped up
figure without any basis. Further it is submitted that the CST station has
7 entry/exist points. All the passengers exiting out of CST station at
entry point of subway, do not use the subway alone. They can also use
the other options available to proceed towards Crawford market,
Ballard Pier etc. The persons using the subway do not loiter or linger
away in the subway, so as to over crowd the subway. It is submitted
that even on Morcha days and particularly on 6th December every year
being “Mahaparinirvan Diwas”, when people arrive in city, the subway
is not over crowded. The appellant and other shopkeepers have
installed CCTV cameras in the subway and recorded the amount of
crowd using the subway and have produced the recording before the
Enquiry Officer. It shows that no over crowding, even during the peak
hours of the use of subway, occur. The corporation should produce such
record and data in support of their claim about over crowding.
(i) It is submitted that the shopkeepers through their
association are maintaining subway and keep it in clean and hygienic
condition. They always keep it well lit and safe and passengers
patronize such maintenance of the subway. The corporation does not
maintain the cleanliness and other infrastructure facilities within the
subway and does not release the funds for payment of electricity bills
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etc. The corporation had requested the association of the shopkeepers
of the subway to take over the maintenance of the subway, which
include the huge electricity bills towards the air blowers, conditioners
fitted in the subway etc. All the expenditure of the maintenance,
electricity, minor repairs, security, cleaning etc. is being done by the
association of the shopkeepers. The corporation was not put to any
expense for maintaining the subway, since the entire maintenance was
being done by the association of the shopkeepers.
For all these reasons, the appellant has pleaded before the
Enquiry Officer that the proposal to pass order of eviction of the
appellant under section 105B of the Corporation Act is liable to be
rejected.
7. The Enquiry Officer recorded the evidence of both the parties and
also heard their arguments. After considering the submissions of the
parties and the evidence on record, the Enquiry Officer has come to the
conclusion that the enquiry premises is required in public interest to
avoid over crowding and congestion in the CST subway. The Enquiry
Officer has also held that after expiry of the first 10 years block period
having expired in the year 2011, the corporation has not executed any
agreement for the further period. Therefore, the notice dated
29.04.2017 terminating the agreement and calling upon appellant to
vacate the premises is valid and after such steps of the corporation, the
occupation of the appellant is unauthorised over the enquiry premises.
Therefore, under subsection (1) of section 105B of the Corporation
Act, an order should be passed by the Enquiry Officer for eviction of the
appellant. Accordingly, the impugned order has been passed directing
that the appellant shall vacate the enquiry premises within one month
from service of notice under section 105B(1) of the Corporation Act.
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Consequent to this order on 15.03.2003, the Enquiry Officer has issued
impugned notice dated 15.03.2013 directing the appellant to vacate the
premises within one month, failing which further action to evict the
occupant/appellant and to take possession of the premises will be taken
under section 105B (3) of the Corporation Act. This order and the
notice have been challenged in the instant appeal.
8. Number of grounds have been taken and mentioned by the
appellant in the appeal memo, which have also been pointed out by the
appellant's Advocate in the course of the argument.
9. I have heard the arguments advanced by the learned Advocate of
the appellant as well as learned Advocate of the respondent
corporation.
10. The learned Advocate of the appellant has submitted that the
impugned order is not at all justifiable. It is submitted that the Enquiry
Officer has not taken into consideration all the material documents and
evidence on record, but has appreciated only those evidences, which
support to the corporation. Therefore, it is submitted that the impugned
order is liable to be set aside by allowing this appeal. The sum and
substance of the points raised by the learned Advocate of the appellant
may be stated as under :
(a) The tender document including tender notice, terms and
conditions of tender, acceptance thereof and agreement of leave and
licence entered into between the appellant and the corporation in the
year 2001 have to be read and appreciated with the contents of each
other and also together with the resolutions of the improvement
committee by which improvement committee has approved the
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proposal of the Municipal Commissioner for allotment of the shops. In
this regard, the learned Advocate of the appellant has referred to the
copies of resolutions of the improvement committee, which were
submitted before the Enquiry Officer, but the Enquiry Officer did not
allow the appellant to rely on them and which have been produced by
the appellant of group of appeal of appeal No.114 of 2019 to 130 of
2019 before this Appellate Authority. (Contents of those resolutions
have been herein earlier noted in detail).
(b) Though the agreement of leave and licence entered into
between the appellant and corporation states it to be on leave and
licence basis, in fact, it is in nature of lease for indefinite period. This
interpretation can be assigned taking into consideration that in the
agreement it is mentioned that the first block period of licence would
be for 10 years on payment of monthly compensation at Rs.390/ per
Square Meter and per month for the first 5 years and for the next 5
years by increase of monthly compensation by 50% and the period of
licence shall be extended for further periods after expiry of each 5 years
block period. It is also submitted that royalty amount received by the
corporation from the appellant is huge and non refundable. This also
supports the above interpretation. The learned Advocate of the
appellant has referred to clause 1,5,6,7,23 & 24 of the agreement in
support of the aforesaid submissions.
(c) The learned Advocate of the appellant has also submitted
that the appellant has been making representations through the
association of the shopkeepers of the subway to the corporation that the
period of licence be extended after expiry of the first block period of 10
years, but the corporation did not take any decision thereon and kept
on demanding and accepting the compensation amount from the
appellant and the other shopkeepers of the subway. This indicates that
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the intention of the corporation at the time of issuing the initial tender
notice and executing the leave and licence agreement with the
appellant was that the corporation was bound to extend the licence
period by 5 years on expiry of each block period in future.
(d) The learned Advocate of the appellant has also submitted
that the correspondence produced by the appellant show that the
appellant and the other shopkeepers were pursuing the corporation to
extend the period of licence as per the terms of the agreement, but no
decision of the corporation was intimated to the appellant and the other
shopkeepers for a long time. Therefore, the appellant being citizens had
legitimate expectations from the corporation, which is a state within the
meaning of Article12 of the Constitution of India, that the corporation
will extend the time of licence or lease.
(e) The learned Advocate of the appellant has referred to the
copies of representations and letters from the association of the
shopkeepers of the subway addressed to the corporation dated
09.07.2010, 28.08.2010 and 01.03.2011 to contend that since prior to
expiry of the first block period of 10 years, the appellant and the other
shopkeepers were requesting the corporation to extend the period of
lease as per the terms of the agreement. He has also referred to the
copy of proposal dated 24.02.2012 at exhibit16 presented by the
Assistant Commissioner to his superior officers that it will be feasible to
enhance the monthly compensation of the shops as per the prevailing
terms and conditions of the agreement and further increase the rate of
monthly compensation by 10% after expiry of over one year period. On
this proposal, the DMC had given direction to hold meeting and thus,
the said proposal was kept pending. The learned Advocate of the
appellant has also referred to copy of proposal exhibit17. It was with
reference to the renewal of licence of the 46 shops. In this proposal
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also, the extension of period of licence was recommended on certain
conditions as to payment of royalty and monthly compensation. The
learned Advocate of the appellant has also referred to the proposal of
the Deputy Superintendent (Market) of the Corporation dated
20.08.2013, which proposes to invite fresh tenders for allotment of 46
shops incorporating a specific condition of first right of refusal to the
existing occupants of the shops and to continue the existing
shopkeepers till finalization of tender process with increase in rent as
indicated in the table annexed to this proposal. It is submitted by
learned Advocate of the appellant that this proposal was approved by
the Additional Municipal Commissioner on 06.09.2003 and the
Assistant Commissioner of Market was directed to implement the said
decision. The learned Advocate of the appellant has submitted that
Additional Commissioner is equivalent to the Municipal Commissioner
and, therefore, it can be said that the corporation had decided to invite
fresh tenders and to continue the existing shopkeepers till finalization
of the tender process. It is submitted that after such decision, the
corporation cannot take decision to terminate the agreements and
licence, without implementing the aforesaid decision of calling fresh
tenders giving certain rights to the existing shopkeepers to remain in
possession, pending the said process. Therefore, it is submitted that
subsequent order of the Municipal Commissioner on 08.07.2015, to
terminate the agreement and to get the enquiry premises vacated is
illegal.
(f) It is submitted by the learned Advocate of the appellant
that by a notice dated 02.07.2013, the corporation had required the
appellant to pay the monthly compensation which means that the
corporation made the shopkeepers to believe that the further block
period of licence has been extended as per the terms of the agreement
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and, therefore, the shopkeepers have paid compensation upto the year
2016. The learned Advocate of the appellant has submitted that
therefore, doctrine of estoppal and legitimate expectations from a
public authority is applicable and operates against the corporation. It is
submitted that decision of the Municipal Commissioner dated
08.07.2015 on the proposal of the Assistance Commissioner dated
29.06.2015 has been taken to get the shops vacated in public interest.
The said decision is illegal and cannot be implemented against the
corporation's, earlier decision to call the fresh tenders and to continue
the existing shopkeepers till finalization of the tender process. It is
submitted that this decision dated 08.07.2015 is taken, without
considering the earlier decision of 2013 and this has been admitted by
the witness of the corporation in crossexamination that the earlier
decision was not brought to the notice of the Municipal Commissioner,
who took the aforesaid decision for eviction of shops on 08.07.2015, on
the ground that the premises is required in public interest.
(g) The learned Advocate of the appellant has also submitted
that the corporation officials while taking the aforesaid decision for
eviction of the shops of subway, have acted malafide against the
appellant and other shopkeepers of the subway by suppressing material
facts. It is submitted that in the course of inquiry before the Enquiry
Officer, the corporation has produced only proposal of Deputy
Superintendent of Market dated 20.08.2013 about calling fresh tenders
etc. and has not produced the decision taken by the Additional
Commissioner thereon. The decision taken by the Additional
Commissioner thereon on 06.09.2013 was produced by the appellant
before the Enquiry Officer. Pointing out these circumstances, the
learned Advocate of the appellant has submitted that the officials of the
corporation have not acted fairly while deciding to get the enquiry
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premises and other premises in the subway evicted.
(h) The learned Advocate of the appellant has submitted that
the ground of public interest mentioned in the decision of the Municipal
Commissioner dated 08.07.2015 on the proposal of the Assistant
Commissioner dated 29.06.2015 is without any sort of material in
support. Only observations of the corporation officials that there is over
crowding in the subway was the basis on which such decision has been
taken by the Municipal Commissioner on 08.07.2015. The Enquiry
Officer has not considered this aspect of the case while passing the
impugned order and issuing the impugned notice for vacating the
enquiry premises. The learned Advocate of the appellant has referred to
the documents produced by the appellant before the Enquiry Officer,
which include the copy of the report of Mumbai Railway Vikas
Corporation Ltd.(exhibit2) and copy of computer hard disk showing
the movement of people in the subway. The learned Advocate of the
appellant has also played the said computer hard disk in the course of
hearing of the appeal to show that this has been recorded by CCTV
cameras fixed in the subway. It is submitted that the said CCTV
footages have been recorded on various occasions during the course of
one week. It is at exhibit6. The learned Advocate of the appellant has
submitted that in the aforesaid hard disk, movement of people is shown
and the number of people moving in the subway shown in the said
footages, show that there is no over crowding and people are easily
moving through the subway without any hindrance. The learned
Advocate of the appellant has submitted that even the witness of the
corporation has admitted that his statement is false that 30 to 35 lakh
people visited to CST and, therefore, there is over crowded, is false. The
learned Advocate of the appellant has also submitted that the report of
the Mumbai Railway Vikas Corporation Ltd. (exhibit2) shows that only
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06,36,661 passengers used the CST station. It is submitted that out of
them only some use the subway because the subway is close to only one
exit gate and, there are other six exit gates to the CST station. It is
submitted that the said report is about daily number of passengers and,
therefore, this number of passengers is not of one time or one occasion
of the day. These aspects have not been considered by the Enquiry
Officer, while holding that over crowding occurs in the subway and,
therefore, the shops are required to be evicted to ease the flow of traffic
and pedestrians in the subway.
For all these reasons, the learned Advocate of the appellant has
submitted that the impugned order is liable to be set aside by allowing
the instant appeal.
The learned Advocate of the appellant has referred to following
decisions in support of his aforesaid submissions.
Sr.
No.
Particulars
1 Bank of India V/s. K. Mohandas &Ors.
[2009(5) SCC 313].
2 Senior Divisional Commercial Manager &Ors. V/s. S.C.R. Caterers,
Dry Fruit Juice Stalls Welfare Association &Anr.
[2016 (3) SCC 582].
3 Prakash Warehousing Co. V/s. MCGB &Anr.
[1991 (2) Bom. C.R. 102].
4 Janab Salehbhai Saheb Safiyuddin V/s. The MCGB &Ors.
[1993 (3) Bom. C.R. 282].
5 Bharmal Medical Store, Civil Hospital, Badnagar &Ors.V/s. State of
Madhya Pradesh &Ors.
[2018 (9) SCC 617]
6 Vishal N. Kalsaria V/s. Bank of India &Ors.
[2016 (3) SCC 762]
7 State of Punjab V/s. Bandeep Singh &Ors.
[2016 (1) SCC 724]
8 State of Kerala &Ors. V/s. Kerala Rare Earth &Minerals Ltd. &Ors.
[2016 (6) SCC 323]
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11. On the other hand, the learned Advocate of the respondent
corporation has opposed the aforesaid contentions raised by the learned
Advocate of the appellant in the appeal. The learned Advocate of the
respondent has supported the impugned order and the impugned notice
strongly by referring to the provisions of section 105A and 105B of the
Corporation Act. He has submitted that admittedly the enquiry premises
is owned by the Municipal Corporation and the same was given in
occupation of the appellant in terms of the agreement. He has
submitted that admittedly the tender notices were issued calling
invitations from public for allotment of the shops. It is submitted that
the tender notices, tender documents and the annexures thereto and
the agreement, ultimately executed show that, the corporation was
intending to call the tenders for giving the shops on leave and licence
agreement for a block period of 10 years. Contents of all these
documents are to the effect that the intention of the parties was that the
subsequent extension of time for leave and licence, would be by
executing fresh agreement and it would be completely at the option of
the corporation. The learned Advocate of the respondent has submitted
that admittedly the first block period of 10 years, for which the
agreement of the year 2001 was executed by the appellant and the
other shopkeepers/tenderers, has expired in the year 2011. The learned
Advocate of the respondent has submitted that after expiry of the said
period, admittedly no agreement has been executed for extension of
further block period of leave and licence. Therefore, it is submitted that
the appellant has no right to remain in occupation of the enquiry
premises. In such circumstances, the learned Advocate of the
respondent has submitted that the decision taken by the Municipal
Commissioner on 08.07.2015 to get the enquiry premises evicted
suffers from no illegality as is urged by the learned Advocate of the
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appellant. It is submitted that the corporation being a licenser and
owner of the enquiry premises, has exclusive right to either extend the
licence period or to continue. It is submitted that the tender documents
and the agreement clearly show that the corporation shall be at liberty
to revoke, withdraw or terminate the licence with one month's notice in
writing, without assigning any reason whatsoever. In this regard, the
learned Advocate of the respondent has heavily relied on clause (32) of
the agreement and the related clauses of the tender document produced
by the corporation at “exhibitC”. The learned Advocate of the
respondent has also submitted that in clause (36) of the said agreement
wherein, it is provided that in case of dispute, the decision of the
Municipal Commissioner or the Additional/Joint Commissioner shall be
final and binding on both the licenser and licensee/s. In view of this
provision in the agreement, according to the learned Advocate of the
respondent, the decision of the Municipal Commissioner dated
08.07.2015 to get the enquiry premises evicted is final and binding on
the appellant and the appellant has to follow it, even as per the terms of
the agreement.
The learned Advocate of the respondent has submitted that the
decision of the Municipal Commissioner dated 08.07.2015 is produced
by the respondent and it is part of exhibitC in the enquiry papers. It is
submitted that the said decision is taken by the Municipal
Commissioner by considering the necessity to address the problem of
public inconvenience caused in the CST area and the subway due to the
over crowding in the subway. The learned Advocate of the respondent
has heavily relied on the provisions of clause (c) of subsection (1) of
section 105B of the Corporation Act, which says that on satisfaction,
the Municipal Commissioner may order the person in occupation of the
corporation premises to vacate the premises on the ground that the
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corporation premises is required by the corporation in the public
interest. Referring to this provision, the learned Advocate of the
respondent has submitted that the Enquiry Officer having been
delegated with the powers of the Municipal Commissioner under
section 105B of the Corporation Act, has rightly passed the impugned
order.
The learned Advocate of the respondent has submitted that after
taking the aforesaid decision dated 08.07.2015, the corporation had
issued notice to the appellant and the other shopkeepers dated
23.06.2016 (ExhibitD). By that notice, the respondent had
communicated to the appellant that the respondent corporation has no
intention to renew the agreement of leave and licence and that the
premises is required in public interest and, therefore, the appellant was
called upon to evict the enquiry premises. This notice was challenged by
the appellant in Writ Petition No.1990 of 2016. The learned Advocate
of the respondent has referred to the decision of Hon'ble High Court
dated 27.10.2016 passed in the said Writ Petition. The learned
Advocate of the respondent has submitted that the Hon'ble High Court
has observed in this judgment that clause (33) of the licence agreement
provides that whenever licence is revoked, withdrawn or terminated by
the licenser, the licensee shall hand over the vacant and peaceful
possession of the shop and in default the licenser or the competent
Municipal officer shall be entitled to enter the said shop and occupy the
same. The learned Advocate of the respondent has submitted that the
Hon'ble High Court has observed in this judgment that in the instant
case, licence was valid till the year 2011. The corporation had not
withdrawn or revoked or terminated the licence but even after the
expiry of initial authorization, the respondent corporation allowed the
petitioners to continue to occupy and conduct business in the premises
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on accepting additional 50% compensation charges. The learned
Advocate of the respondent has also referred to the aforesaid decision
to contend that the Hon'ble High Court in para No.14 of the judgment
has observed that the term “unauthorized occupation” within the
meaning of section 105A (d) of MMC Act, not only covers persons in
occupation of corporation property without authority but also includes
persons who continue to occupy the premises after the authority under
which he occupied the premises has expired or has been determined.
The Hon'ble High Court has further observed in the said judgment that
in the instant case, the corporation had inducted the petitioners in the
said shops with due process of law. Thus, the occupation of the
premises at it's very commencement was under authority, but such
authority has since expired and the petitioners continued to be in
possession of the corporation premises even after the expiry of the
authority. The petitioners are therefore in unauthorized occupation of
the corporation premises, which are abutting the subway/public street.
With these observations, the Hon'ble High Court has further observed
that the corporation will have to follow procedure laid down in section
105B of the Corporation Act to evict the person in unauthorised
possession of the corporation premises etc. Therefore, the Hon'ble High
Court has set aside the said notice dated 23.06.2016. The learned
Advocate of the respondent has submitted that thereafter, the notice
dated 29.04.2017 has been issued, which is produced by the respondent
in the enquiry proceedings at exhibitF. In this notice, the corporation
has called upon the appellant to pay the due compensation upto
30.04.2017 and vacate the premises on or before 31.05.2017 on the
grounds mentioned in the notice including that the appellant's
occupation is unauthorised and the premises is required for public
interest to avoid over crowding in the subway.
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The learned Advocate of the respondent has submitted that the
Enquiry Officer has examined and appreciated the material on record
and has rightly come to the conclusion that the appellant is liable to be
evicted from the enquiry premises, on the aforesaid grounds. The
learned Advocate of the respondent has submitted that Enquiry Officer
has rightly interpreted that as per the terms of the tender documents
and the agreement of leave and licence, it was at the option of the
Municipal Corporation to either extend the period of licence after
expiry of 10 years first block period or to get fresh agreement executed
or to get the premises evicted. The corporation has opted the former
option and the appellant cannot claim any right to continue with the
occupation of the enquiry premises. The learned Advocate of the
respondent has submitted that the admission of the witness of the
corporation that the earlier decision of 2013 taken by the Additional
Commissioner for calling fresh tenders, would not make any difference,
because there was no such decision taken but only proposal to call fresh
tenders and to continue the appellant with the occupation of the
enquiry premises till finalization of the fresh tender, which was not
finalized by the Municipal Commissioner. It is submitted that even if, it
is a final decision, the subsequent decision of the Municipal
Commissioner taken in 2015 to get the enquiry premises vacated would
supersede the said earlier decision of 2013. Therefore, there is no
reason to say that the decision of the Municipal Commissioner dated
08.07.2015 violates any right of the appellant or any legal provision or
any term and condition of the leave and licence agreement. The learned
Advocate of the respondent has submitted that the evidence of the
appellant is without any support of document about the alleged
promises having been made by officers of the corporation for extending
the period of licence, after expiry of the first 10 years block period and,
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therefore, the oral evidence of the appellant is not believable. It is
submitted that the appellant has referred to various meetings, in which
such decisions of extension for licence period were allegedly taken, but
the appellant has not produced any document of minutes of such
meetings with the corporation officials in this regard.
The learned Advocate of the respondent has submitted that the
enquiry officer is having delegated powers of the Municipal
Commissioner conferred on the Municipal Commissioner under section
105B for directing eviction of corporation premises by following due
process of law laid down in subsection (2) of section 105B of the
Corporation Act. Accordingly, the Enquiry Officer exercising the powers
of Municipal Commissioner has issued valid notice under subsection (2)
of the said section and initiated the enquiry and by giving full
opportunity of hearing to the appellant, the Enquiry has been
conducted and all the principles of natural justice have been followed
by the Enquiry Officer. The Enquiry Officer has rightly found that the
enquiry premises is required in public interest to avoid over crowding
and has also rightly found that the occupation of the appellant, after the
expiry of the agreement period is unauthorised. Therefore, the
impugned order cannot be found fault with. The learned Advocate of
the respondent has submitted that though the examinationinchief of
witnesses of the parties have not been affirmed before any competent
authority, the Enquiry Officer can take the same into consideration as
evidence, because in such type of enquiries, rules of Indian Evidence
Act are not required to be followed. In this regard, the learned Advocate
of the respondent has referred to the decision of Hon'ble Supreme Court
in the case of Union of India V/s. T.R. Varma [AIR 1957 SCC 882].
The learned Advocate of the respondent has also relied on the decision
of Hon'ble Supreme Court in the case of Ashok Caterers V/s.
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Municipal Corporation of Greater Bombay (Best Undertaking)
[1997 (9) SCC 220], in support of his submissions that the Municipal
Commissioner has powers to evict any person from corporation
premises in public interest under section 105B of the Corporation Act,
notwithstanding any other law or the contract to the contrary.
For all the aforesaid reasons, the learned Advocate of the
respondent has submitted that the appeal is liable to be dismissed.
12. I have examined the submissions of the parties while going
through the record and proceedings and the impugned order of the
Enquiry Officer. Following points arise for my determination and I
record my findings on the points thereon for the reasons mentioned in
the subsequent paras :
POINTS FINDINGS
1 Whether the corporation has proved that
the enquiry premises is required to the
corporation in public interest i.e. for
safety of public by avoiding over
crowding and congestion in the CST
subway and therefore, he is liable to be
evicted ?
In Negative
2 Whether the corporation has proved that
the appellant is in unauthorised
occupation of the enquiry premises and
therefore, he is liable to be evicted ?
In Negative
3 Whether the impugned order is liable to
be set aside ?
In Affirmative
4 What order ? Appeal is allowed is
allowed in terms of
the operative order
being passed herein
below.
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: R E A S O N S :
13. Before discussing and appreciating the evidence on record, with
particular reference to each of the above said points for determination,
it is beneficial to first notice the relevant law as laid down in the
relevant sections of Corporation Act and the principles as laid down in
the decisions referred to by the parties. As the impugned order is passed
and impugned notice is issued with reference to section 105A & 105B
of the Corporation Act, the relevant provisions of those sections are
noted as under :
“105A. Definitions.
(a) “Commissioner” in relation to premises of the corporation which
vest in it for the purposes of th 2[Brihan Mumbai Electric Supply
and Transport Undertaking, means the General Manager;]
(b) “corporation premises” means any premises belonging to, or
vesting in, or taken on lease by, the corporation;
(c) “regulations” means regulations made by the Commissioner
under section 105H;
(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.”
“105B. Power to evict person 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
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Municipal Corporation (Amendment) Act, 1960.
(i) not paid for a period of more than two months, 1[the rent,
taxes, fees or compensation] lawfully due from him in
respect of such premises; or
(ii) sub let, 2* * * 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 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 the public interest,
the Commissioner may notwithstanding anything contained in any law for
the time being in force, 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 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 subsection (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.
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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 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 ntice, 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 subsection shall be served in the
manner provided for the service of a notice under subsection (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 the purpose use such force as may be necessary.
(4)...
(5)...
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(6) If a person, who has been ordered to vacate any premises under sub
clause (i) or (iv) of clause (a) of subsection (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 subsection (2), cancel his order made under subsection (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.”
14. learned Advocate of the appellant has referred to the following
decisions :
(a). Bank of India V/s. K. Mohandas (2009 (5) SCC 313) :
In this case, under the Banking Companies Act, the bank had
made pension Regulations 1995 which provided for pension on
superannuation under Reg. 28 & voluntary retirement on completion of
20 years under Reg. 29. Service benefits provided under Reg.29 were
not found to be attractive by employees and did not help the bank in
right sizing it's manpower. So bank adopted Special VRS 2000 for a
limited period from 15.11.2000 to 14.12.2000. Reg. 28 was amended in
2002 w.e.f. 01.09.2000, providing pension for opting retirement on
completion of 15 years service under any scheme that may be framed by
the bank. The optees of retirement were given benefit under VRS 2000
except benefit of pension under Reg.29 (5), which provided for
entitlement for increase of five years in qualifying service rendered by
employee.
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The question arose was whether benefit of increase in qualifying
service under Reg.29(5) was available to employees opting for
retirement before age of superannuation under said amendment in
Reg.28.
In the above background, it was held (i) that the VRS 2000 was
an invitation for offer containing a term that optee of VRS would also
be eligible for pension under pension regulations and employees
application for voluntary retirement was a proposal or offer and upon
acceptance of the application and upon communication of that
acceptance to employee, the concluded contract come into existence.
The Court need to examine the contract and circumstances in which it
was made in order to see whether or not from the nature of it, the
parties must have made their bargain on the footing that a particular
thing or state of things would continue to exist.
(ii) that the true construction of a contract must depend upon the
import of the words used and not upon what the parties choose to say
afterwards, nor does subsequent conduct of the parties in the
performance of the contract affect the true effect of the clear and
unambiguous words used in the contract. The intention of the parties
must be ascertained from the language they have used, considering in
the light of the surrounding circumstances and the object of contract.
The nature and purpose of the contract is an important guide in
ascertaining the intention of the parties.
(iii) It is also a well recognized principle of construction of a
contract that it must be read as a whole in order to ascertain the true
meaning of it's several clauses and the words of each clause should be
interpreted so as to bring them into harmony with the other provisions
if that interpretation does no violence to the meaning of which they are
naturally susceptible.
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(iv) The fundamental position is that it is the banks who were
responsible for formulation of the terms in the contractual scheme that
the optees of voluntary retirement under the scheme will be eligible to
pension under the Pension Regulation, 1995. Therefore, they bear the
risk of lack of clarity, if any. It is wellknown principle of construction of
contract that if the terms applied by one party are unclear, an
interpretation against that party is preferred.
(v) In the light of above principles, it was held that if about
pension, the intention of the banks at the time of introduction of the
VRS 2000 was not to give pension as provided in Reg. 29(5), they could
have said so in the scheme itself. Act of amendment in Reg.28 was a
subsequent act, when employees had already opted for VRS thinking
that benefit under Reg.29 of pension Reg. was available to them.
Therefore, it was unreasonable to apply subsequent amended Reg.28 to
the employees who had opted for VRS 2000.
(vi) The banks were public sector banks and states within the
meaning of Art. 12 of the Constitution and their action even in
contractual matters had to be reasonable, lest. Any interpretation of
VRS 2000, although contractual in nature, must meet the test of
fairness. It must be interpreted in a manner to avoid arbitrariness and
unreasonableness on the part of public sector banks, who brought out
VRS 2000 with an objective of right sizing its man power.
(b) Senior Division Commercial Manager V/s. SCR Caterers, Dry
Fruits, Fruit Juice Stalls Welfare Association [AIR 2016 (SC) 668].
In this case, the petitioners were given licences for running units
in Railway Stations, and they were renewed under catering policy of
2005. Policy of 2005 was replaced by policy of 2010. Those licences
were renewed for 3 years till 20.07.2013. On 26.04.2013 the then Com.
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Manager, Railway issued notice for inviting bids from catering service
providers for providing catering services for establishing catering stalls
at Railway Stations. The case of petitioners association before Court was
that in terms of catering policy 2010, the existing licencees were
entitled for renewal of their licences for a period of three years and
hence, they prayed for direction to renew their licences. In the facts of
that case it was held that circular of Railway Board issued on
09.08.2010 clarified that the renewal of existing licences was required
to be granted to all the existing licences, under the catering policy 2010
of the Railways. The learned Advocate of appellant in the instant case,
referred to the following observations of the Hon'ble Supreme Court :
“Article 14 of the Constitution of India, mandates that State
action must not be arbitrary and discriminatory. It must also not be
guided by extraneous considerations which are antithetical to equality.”
(c) Prakash Warehousing Co. V/s. The Municipal Corporation
Greater Bombay [1991 (2) Bom. C.R.].
In this case the premises of the Mumbai Municipal Corporation
was in occupation of original Glen field & Co. That original occupant
had granted licence to the appellant on 01.10.1963 in respect of said
premises. On 27.03.1964, the appellant permitted Ghatge & Patil
Transport Pvt. Ltd., to store goods in the premises. Then, on
13.08.1966, the original occupant assigned all it's rights, title and
interest in favour of appellant. Then, by agreement dated 17.06.1967,
the Municipal Corporation accepted the appellant as principal occupant
of the premises knowingly that appellant had permitted Ghatge & Patil
to store goods therein. However, on 25.07.1969, the Commissioner of
Corporation issued notice terminating tenancy of appellant purportedly
in terms of agreement dated 17.06.1967 on the ground that appellant
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had sublet the premises to Ghatge Patil & Transport Pvt. Ltd. in
contravention of the agreement. This followed enquiry under section
105 (B) of M.M.C. Act and resulted into orderly eviction. This order was
subject matter of challenge before Hon'ble Supreme Court. The Hon'ble
Supreme Court has held that
16. The satisfaction of the Commissioner, which is the
condition precedent to the exercise of power of eviction by
the summary procedure prescribed by the Act, may be in
respect of any of the circumstances falling under clauses
(a), (b) or (c) of subsection (1) of section 105B. Clause
(a) contemplates eviction of any person on any one of the
grounds mentioned in subclause (i) to (iv) thereof. These
grounds relate only to a person in authorised occupation of
Corporation premises. They have no application to a
trespasser. This is clear 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 ordering eviction of the
occupant otherwise than on any of the grounds specified
under clause (a), 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, hospital,
colleges, markets, destitutehomes and the like will indeed
qualify for invoking the Commissioners power under clause
(c). Clause (b), on the other hand, is a powerful weapon
for eviction of an unauthorised occupant. This clause is
applicable equally to a trespasser as it 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 authority under clause (a) or clause (c)
of subsection (1) of section 105B.
17. 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
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and he continues to remain in occupation of the premises,
he will be liable to be evicted on the ground mentioned in
clause (b) of subsection (1) of section 105B, but in
accordance with the procedure laid down in that section
and on the 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 foundly an order that any one of the grounds falling
under clause (a) or clause (c) of subsection (1) for
determination of authority has been established. In the
absence of such a valid order invoking clause (a) or clause
(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. Bhasmes argument to the contrary on
this point.
(d) Janab Salehbhai Saheb Safiyuddin V/s. The Municipal
Corporation of Greater Bombay & Ors. [1993 (3) Bom. C.R. 282].
In this case, the Muncipal Corporation had sanctioned report of
Municipal Commissioner and set apart a plot of land situated at Sewri,
Mumbai of extrust for the purpose of a cemetery for Daweedi Bohra
Community. The matter was under consideration of the corporation for
giving the land on lease in perpetuity to the trust composed of Dawoodi
Bohra Community for use as cemetery for dead of the said community.
The health officer of the corporation wrote letter to the persons of the
said community that pending the finalisation and execution of lease, the
Commissioner would consider handing over of the cemetery to the
persons of said community appointed as trustees of the cemetery,
provided the trustees gave undertaking that they would execute the
trust deed, maintain the cemetery and hold the said land as bare
licencees, pending the execution of the lease deed. The trustees gave
such undertaking and took possession of the land. While the execution
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of lease deed was pending, there were certain complaints against the
management of the cemetery. Therefore, the corporation issued notice
dated 19.03.1982 alleging mismanagement of cemetery and calling
upon the trustees to hand over the land for the purpose of taking over
the management of the cemetery departmentally so as to render proper
facilities for the burial of dead bodies. This notice was challenged in
Writ Petition before the Hon'ble High Court and upon statement of the
corporation that it would not take over the management of the
cemetery until it adopted legal proceeding for ejectment and succeeded
in it, the said Writ Petition N.878/1982 was rejected as premature by
holding that “If and when proceedings for eviction are initiated, it will
be open for the petitioner either to face them or to challenge their
legality if the same are found not warranted by law. The petition, being
immature at this stage, is rejected.” Then, a notice dated 23.11.1982
under section 105 (B) of Bombay Municipal Corporation Act was issued
by the commissioner to the trustees threatening their eviction on the
ground that petition/trustee was in unauthorised occupation of the land
and the land was required for public interest i.e. for taking over
management and possession of the cemetery.
The said notice was challenged in Writ Petition before the Hon'ble
Bombay High Court. In the aforesaid background of that case, the Hon'ble
High Court has held that :
(i) In view of principles laid down by Hon'ble Supreme Court
in the cases of (a) Express Newspapers Pvt. Ltd. V/s. Union of India
[AIR 1986 SC 872] & (b) M. Chhagganlal V/s. The Gr. Bombay
Municipality [AIR 1974 SC 2009], section 105(B) of Bombay Municipal
Corporation Act is not right remedy to evict the petitioner from the land
and this is one of the exceptional cases, where if at all the corporation
wanted to evict the petitioner, it ought to have resorted to a regular suit
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as the dispute involved complicated issues of law.
(ii) The corporation is “state” within the meaning of the terms
as defined under Article12 of the constitution of India. It has to follow
principles of natural justice & anything falling short of that would
amount to arbitrary action on it's part, which would be hit by Article14
of the Constitution. In the facts of that case, it is held that assuming that
there were legitimate complaints made to the corporation with regard
to irregularity in management of the cemetery, principles of natural
justice required that such complaints & any material in support ought to
have been disclosed to the petitioner & he ought to have been given
opportunity of making a representation against the proposed
termination of licence. Without any further ado, the corporation chose
to issue notice dated 19.03.1982, abruptly, arbitrarily and unilaterally
terminating the licence. It was held that this was the infirmity in the
notice dated 19.03.1982, and therefore, the notice was bad in law and
contrary to the established principles of law.
(iii) In para 36 of this decision, it was observed as under :
“The petitioner then impugns the notice dated 23rd November,
1982, issued under section 105B of the Act. A reading of this
notice would suggest that the notice is based upon two
grounds :
“(i) that the petitioner is in unauthorised occupation of the land
in question.
(ii) that the land in question is required by the corporation in
public interest, viz., for taking over possession and management
of the cemetery.
The first one is the direct consequence of the arbitrary action on
the part of the corporation. The corporation first arbitrarily
terminates the licence of the petitioner by it's notice dated 19th
March, 1982, and then issues a notice under section 105B that
it proposes to evict the petitioner as an unauthorised occupant.
The vice affecting the former must necessarily vitiate the latter.”
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(iv) In the facts of the case before the Hon'ble High Court and
referring to the decision of Nagpur High Court in Dwarka S/o
Kaludin Ahir V/s. Gauri Shankar Thakur S/o Sunder [ 3, AIR (30)
1943 Nagpur77] , the Hon'ble Bombay High Court has further held
that the licence granted to the petitioner and other cotrustees, though
styled as “bare licence”, under the peculiar circumstances of the case,
amounts to an irrevocable licence within the meaning of section 60 (b)
of the Indian Easement Act.
(v) The Hon'ble High Court has set aside both the notices dated
19.03.1982 & 23.11.1982.
(e) Bharmal Medical Store, Civil Hospital Badnagar V/s. State of
Madhya Pradesh [2018 (9) SCC 617].
In this case, the appellants were lessees of the state Government
for the shop premises, within the compound of the District Hospital,
Ujjain, Civil Hospital, Nagda, Khachrod, Mahidapur, Badnagar etc. It
was settled with the appellants by open bid in 2000/2001. The lease
period had been expired and no steps had been taken for renewal by
the appellants. The state issued notice to the appellants to vacate the
shop, as shop was permitted at a time when patients had to procure
medicines on their own, and because of introduction then of the new
scheme of Government for supply of medicines private shop was not
required, and the shop premises could be utilised to facilitate supply of
free medicines, and also on the ground that lease had long expired & no
steps were taken by appellants for renewal. In the above facts, the
Hon'ble Supreme Court has held that the laudable objective of the
government to ensure availability of free medicines to the patients in
the hospital would have to be balanced with the competing interests of
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the appellants to earn their livelihood. The eviction notice was not
sustainable also for the reason that it was issued without an opportunity
to the appellants for representing their case and convincing the
authorities not to remove them. Considering that lease had long expired
& no steps were taken for renewal, and considering that rent was
Rs.300/ to 400/ and at the time of initial settlement also, it was done
with the appellants on the basis of open bid, the Hon'ble Supreme Court
directed that “it shall be open for the respondents to hold an open bid
for the shops in question inside the hospital premises. The appellants
can also participate in the same. Needless to say that the settlement will
have to be made with the highest bidder.” It was directed further that
“till such fresh bids are held, the appellants shall not be disturbed but
shall continue to pay the enhanced rate of rent in the manner provided
for in the agreement with effect from the date of the present order. If
there are any arrears of rent, it shall also be deposited at the agreed rate
within a period of 4 weeks. The impugned orders of the High Court are
set aside. The appeals are allowed.”
(f) Vishal Kalsaria V/s. Bank of India & Ors. [2016 (3) SCC 762].
In this case, the principle to interpret precedents is in laid down.
It has been held that judgment cannot be interpreted and applied by
reading it as a statute. One cannot pick up a word or sentence from a
judgment to construe that it is the ratio decidendi.
(g) State of Punjab V/s. Sandeep Singh [2016 (1) SCC 724].
In this case, writ petitioner's bids were highest in the auction sale
of two properties of Punjab State leather corporation Ltd., However, the
authorities rejected the same and directed to conduct reauction on the
ground that the petitioner's bids were only marginally higher than the
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reserve price. In such facts of that case, the Hon'ble Supreme Court has
held that every decision of an administrative or executive nature must
be a composite and self sustaining one and it should contain all the
reasons which prevailed on the official taking the decision to arrive at
his conclusion. Authority cannot be permitted to travel beyond the
stand adopted and expressed by it in the impugned action. When a
statutory functionary makes an order based on certain grounds, it's
validity must be judged by the reasons so mentioned and cannot be
supplemented by fresh reasons in the shape of affidavit or otherwise.
Otherwise, an order bad in beginning may, by the time it comes to
Court on account of a challenge, get validated by additional grounds
later brought out. In this regard, reference was made to earlier decision
of Hon'ble Supreme Court in Commissioner of Police V/s. Govardhan
Das [AIR 1952SC 16], in which, the decision in Mohinder Singh V/s.
Chief Electric Officer (1978) (1) SCC 405 was referred, in which it was
held that public orders, publicly made in exercise of statutory authority
cannot be construed in the light of explanations subsequently given by
the officer making the order of what he meant, or what was in his mind,
or what he intended to do. Public orders made by public authorities are
meant to have public effect and are intended to affect the actings and
conduct of those to whom they are addressed and must be construed
objectively with reference to the language used in the order itself.
(h) State of Kerala V/s. Kerala Rare Earth & Minerals Ltd. [2016
(6) SCC 323].
In this case, the state of Kerala on 15.09.2004, had sanctioned the
grant of mining lease for ilmenite, rutile etc. for a period of (20) years
under it's powers under section 11 (5) of the Mines & Minerals
(Development and Regulations) Act,l 1957, in favour of the writ
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petitioners. Shortly after issue of the sanction order, however, the state
government by another order dated 25.09.2004 stayed further action in
the matter on the ground that a detailed study on the environmental
impact of the proposed leases needed to be under taken. Then, in 2006,
the state communicated that it did not consider it to grant mining leases
for minerals to private parties. The dispute went to Hon'ble Supreme
Court, where the plea about estoppal against the state was rejected. The
Hon'ble Supreme Court had referred to it's earlier decision in Mannet
Ispal case [2012 (11) SCC 11], to observe that where one party has by
his words or conduct made the other a clear and unequivocal promise,
which is intended to create legal relations or affect a legal relationship
to arise in future, knowing or intending that it would be acted upon by
the other party to whom the promise is made and it is, in fact, so acted
upon by other party, the promise would be binding on the party making
it and he would not be entitled to go back upon it, if it would be
inequitable to allow him to do so having regard to the dealings which
have taken place between the parties, and this would be so irrespective
of whether there is any preexisting relationship between the parties or
not. In no case this doctrine of promissory estoppal can be pressed into
aid to compel the government or a public authority to carry out a
representation or promise, which is contrary to law.
15. The learned Advocate of the respondent referred to the following
decisions :
(a) Ashok Caterers V/s. Municipal Corporation of Greater Bombay
(Best Undertaking) [1997 (9) SCC 220].
In this case, the petitioner had a lease on monthly basis of the
premises of Bombay Municipal Corporation. The lease expired on
January 1990, by efflux of time. However, the tenancy was determined
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by order dated 24.12.1994. Thereafter, summary proceeding was
initiated under section 105(B) (1) of the Bombay Municipal
Corporation Act and eviction order was passed against the petitioner. In
appeal & Writ Petition, the eviction order was confirmed. When, the
matter was taken upto Hon'ble Supreme Court, it was submitted relying
on earlier decision of Hon'ble Supreme Court in Prakash Warehousing
Company V/s. Municipal Corporation of Gr. Bommay [1991 (2) SCC
304], that the corporation had no power to unilaterally terminate the
tenancy, after expiry of period of tenancy, unless any of the grounds is
made out either in terms of the contract or under the statute for ejecting
the petitioner. The Hon'ble Supreme Court rejected these submissions
observing that the renewal made in 1985 expired in 1990. Copy of lease
did not prescribe any particular period of lease, but mentioned words
“from month to month.” In other words it was tenancy on monthly
basis. The occupation of petitioner was held to be unauthorised after
expiry of tenure & determination thereof. In para (5), the Hon'ble
Supreme Court has observed as under :
(5) In Prakash Warehousing Co. case1 relied upon by the learned
counsel, unfortunately, the attention of the Court was not
drawn to the non obstante clause in the main part of Section
105B(1) while it was required to consider the question whether
the person in occupation of the premises after the expiry of the
period of the lease or its determination could be treated as
“unauthorised occupant”. It is true that under the Transfer of
Property Act or the Rent Act, the contractual or statutory
tenancy is required to be determined for noncompliance of any
of the conditions of the contract or the statute envisaged
thereunder. But the non obstante clause contained in the main
part of Section 105B(1) takes out the wind from the sail of the
regour of the law and enables the Corporationrespondent to
terminate the tenancy and take back possession. After the expiry
of the lease period under the contract or its determination, the
quondam tenant becomes an unauthorised occupant. It is also
true that the authorities cannot arbitrarily determine the right
or interest created in the person in lawful possession of the
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public property except either for a public purpose or for
contravention of the conditions of the contract or for violation
of the statutory provisions. The lease, unlike licence, creates
interest in immovable property which could be put an end to by
determination in accordance with law or contract. In this case,
it is pleaded that the Corporation needs the premises for
expansion of the existing busstand. Under those circumstances,
the determination of the lease and initiating summary
proceedings under Section 105B(1) of the Act is clearly in
consonance with the provisions of the Act.
(b) Union of India V/s. T.R. Varma [1958 SCR 99].
In this case, it was held that the respondent sought to quash
the order of his dismissal from service on the ground that in the
enquiry, the evidence was not taken in the mode prescribed in the
Indian Evidence Act. The Hon'ble Supreme Court has held that
though the procedure laid down in that Act was not strictly
followed, the respondent was given a full opportunity of placing
his evidence before the Enquiring Officer. The Evidence Act has no
application to enquiries conducted by Tribunals. The law only
requires that tribunals should observe rules of natural justice such
as that the party should have the opportunity of adducing all
relevant evidence on which he relied; that the evidence of the
opponent should be taken in his presence and that he should be
given opportunity of cross examining the witnesses examined by
other party etc. If these rules are satisfied, then enquiry is not open
to attack on the ground that procedure laid down in Indian
Evidence Act for taking evidence was not strictly followed.
16. Having noted the law and the principles of law as laid down
in the aforesaid decisions, it is also necessary at this stage to
observe that both the parties have submitted that the
examinationsinchief of witnesses of the parties were in the form
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of statements which were neither recorded before the Enquiry
Officer nor were affirmed as affidavits before any authority
empowered to record the affirmation. However, the parties have
submitted that due to such procedure having been adopted in the
enquiry, they have no grievances. The learned Advocate of the
respondent has referred to the decision of Hon'ble Supreme Court
in the case of Union of India V/s. T.R. Varma (supra) and
submitted that such defect in the enquiry may not be given much
importance to find fault with the enquiry done by the Enquiry
Officer. In view of this and in view of the aforesaid decision, I hold
that the above defect in the enquiry held by the Enquiry Officer
would not cause any prejudice to the parties and hence, it may be
ignored.
17. The learned Advocate of the appellant has also submitted
that the notice served on the appellant to initiate enquiry under
section 105B (2) of the Corporation Act used words that “I, the
under signed, am satisfied” and then, the grounds to propose order
for eviction are mentioned in the notice and the appellant is asked
to explain why proposed order of eviction should not be passed. He
submits that it shows that the notice was issued under
predetermination to evict the appellant and thus, enquiry was
simply a show off. On the other hand, the learned Advocate of the
respondent opposes the aforesaid contentions of the learned
Advocate of the appellant. He has submitted that even for issuing
notice satisfaction of the Enquiry Officer is required and
accordingly, such satisfaction is mentioned in the above notice. I
find merits in the above submissions of the learned Advocate of the
respondent, as it appears that the Enquiry Officer used the
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aforesaid words to show that the notice is issued on being satisfied
for asking the appellant to explain why eviction order should not
be passed, on the grounds mentioned in the notice under
subsection (1) of section 105B of the Corporation Act. The said
notice was also issued with a view to initiate enquiry under
subsection (2) of section 105B of the Corporation Act. In the
course of enquiry, the appellant was given full opportunity of
hearing and adducing evidence. Hence, the above submission of
the appellant is rejected.
Before recoding reasons for findings, with reference to the
particular point of determination, it is also necessary to address the
point raised by the learned Advocate of the appellant that the
termination of leave and licence agreement of the appellant
requires sanction of the standing committee or improvement
committee under section 92 (c) of the Corporation Act. I have
examined the submissions of both the parties on this point. I find
merits in the submissions of the learned Advocate of the
respondent that sanction of the improvement committee or
standing committee or other committees or general body of the
Municipal Corporation is required only for disposing of the
property of the corporation. Section 92 does not say that such
permission is also required for taking back the property of
corporation. In view of section 105A and 105B of the Corporation
Act, the Municipal Commissioner is empowered to get the
corporation premises vacated after due enquiry laid down in
subsection (2) of 105B of the Corporation Act. In view of this, the
submissions of learned Advocate of the appellant on the aforesaid
point are rejected.
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REASONS FOR THE FINDINGS ON POINT NO.1 :
18. The notice under section 105B of the Corporation Act is about
requirement of the enquiry premises in public interest and hence,
eviction is sought on that ground by issuing the said notice. According
to the corporation, the subway is situated at CST area, where various
offices are situated. It is necessary to keep the surrounding area of the
subway open for easy movement of the pedestrians through the subway.
The witness of the corporation in this regard, has relied on the
observations of the corporation officials in their proposals and has
stated that commercial as well as the central/state/semi government
and also corporate offices are loated at Chhatrapati Shivaji Terminus
and nearby 30 to 35 lakhs people commute every day at Churchgate
and Chhatrapati Shivaji Terminus subway. It has been always over
crowded and congested, because of continues and endless flow of
people. The corporation intends to use space of the subway exclusively
for the purpose of lacks of pedestrians coming to this subway daily. The
witness has stated that the applicant corporation proposed to vacate the
said shops and use the open space for providing civic services like
putting information kiosks, video walls for dissemination of information
of civil related issues etc., which will avoid causing any nuisance to the
pedestrians.
19. There are documents produced by the corporation in respect of
the issue about over crowding in the subway stating that there is need
to get the enquiry premises and other premises evicted. This document
is in the form of submission of DMC (Special) of the corporation to his
superior officers. It is dated 24/6/2015. In this proposal, the DMC
has stated that there are two subways. One is at Chhatrapati Shivaji
Terminus and another is at Churchgate. Both the subways belong to the
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MCGM. Approximately 15 to 20 lacs people use both the subways
everyday. These subways are always full of people and are over
crowded. The idea of constructing shops in these subways and,
thereafter, giving them to the public on licence, does not appear to be
very practical. The said stations still have a NorthSouth pattern and
about 30 to 35 lac people commute everyday to Churchgate and CST.
The areas around Churchgate and CST happens to be the oldest
commercial business district of Mumbai. Nariman Point got added to
this commercial district sometime in 1970s. Apart from Mantralaya and
the MCGM Head Quarters, Head Offices of several other Government,
semigovernment bodies as also corporates are located in this area
which falls under "A" ward. The Heard Offices of most of the
Nationalized and private banks are also located in this area. There are
many other offices and organizations located in this area. These
subways therefore always remain overcrowded and congested because
of the continuous and unending flow of people. Construction of shops in
these subways has led to further crowding of these subways and has
added to the problems of the commuters. The shopkeepers have
encroached upon approximately 2 meters of area in front of their shops.
Hawkers have occupied the area beyond that and they hawk their wares
during peak hours. Instances of eve teasing have also been reported
from these subways. It is further stated in the said report by DMC that it
will be in the fitness of things if the tenures of these shops are
terminated and these shops are demolished after getting them vacated.
In the above proposal of DMC (Special) reference has been made
to (1) letter of Shri Yashodhar Phanse, Chairman, Standing Committee
dated 02.02.2015, (2) Point of order raised by the Councillor Shri
Ganesh Sanap in the Markets & Garden Committee meeting dated
13.05.2014, (3) Note from Assistant Municipal Commissioner (Market)
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dated 26.04.2015 and (4) Minutes of meeting dated 27.01.2015 of
Standing Committee.
20. The above proposal of DMC (Special) was placed before the
Additional Municipal Commissioner, who on 06.06.2015 endorsed as
"please discuss." Then the remarks of Assistant Municipal Commissioner
is called on this proposal. On 29.06.2015, Assistant Municipal
Commissioner gave his remarks proposing that he is in total agreement
with the observations of the DMC (Special) in his note dated
04.06.2015. The subways at CST and Churchgate are possibly the
highest footfall area in the country where not less than 30 to 40 lakh
people use it twice in a day i.e. coming to office and then going back
from the office. There is no reason as to continue the idea of convenient
shopping in the subway. That idea is totally absurd & against the safety
& convenience of the huge load of pedestrian traffic witnessed by these
subway. There is no reason why it should be continued further for a
pittance sum of Rs.1.50 crore per year. The shops at CST and
Churchgate can be used for some suitable use of the corporation itself, if
structurally it is not possible to demolish & add that width in the
existing width. These shops can be used to create CFC like service
centers for the huge crowd which uses them. The corporation can use
the shop for corporation related exhibitions & public relations
initiatives. The Assistant Commissioner has also stated in his above
report that staff of the encroachment department has reported that the
shop owners are harbouring the hawkers in the subways & creating lots
of mess & unhygenic conditions inconveniencing the pedestrians. By
terminating licence and taking over of the shops, the corporation will be
able to keep areas and roads leading to the high footfall local station
areas free from the hawkers, as per order of the Municipal
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Commissioner. In this way, the Assistant Commissioner, “A” ward
requested to the DMC (Special)/Additional Commissioner (WS) and
Municipal Commissioner to approve proposal dated 04.06.2015 of the
DMC (Special).
21. It appears from the documents of said proposals of DMC (Special)
and Assistant Municipal Commissioner that on the proposal of Assistant
Municipal Commissioner dated 29.06.2015, the Additional Municipal
Commissioner made following remarks on 07.07.2015 : “The matter is
discussed. I am in agreement with the views of Assistant Commissioner
(A ward). The existence of these shops have become hindrance in flow
of pedestrians, who are using subway. It would be proper in my opinion
if the shops premises are used for service provided by MCGM by
providing it to chowki etc.” Below the said remarks and signatures of
the Additional Municipal Commissioner, there is signature of the
Municipal Commissioner bearing date as 08.07.2015.
22. On the basis of the aforesaid proposals of DMC (Special) and
Assistant Municipal Commissioner and orders of the Additional
Municipal Commissioner and Municipal Commissioner, the notice dated
29.04.2017 was issued by the corporation to the appellant and other
shopkeepers stating that the premises is required in public interest for
avoiding over crowding in the subway. That notice is also produced by
the corporation. Admittedly, the appellant gave reply to the said notice
and denied that there is any problem of over crowding and there is
necessity to require the shops for avoiding over crowding. This reply is
also produced by the corporation and marked it as “exhibitG”.
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23. The learned Advocate of the appellant has submitted that no
statistical data supporting the above views of the DMC and Assistant
Municipal Commissioner is produced before the Additional Municipal
Commissioner and Municipal Commissioner to show that there is really
a problem of over crowding. Even, the letters and notice referred to in
the above proposals are not produced before the Enquiry Officer. The
earlier decision of Additional Municipal Commissioner dated
06.09.2013 to call fresh tenders and to continue occupation of the
appellant till finalization of the tender process was not placed before
the Municipal Commissioner, when the order dated 08.07.2015 was
passed by the Municipal Commissioner. In absence of such material, the
above documents cannot be sufficient evidence to hold that the shops
are requited for addressing an public problem of over crowding, so as to
attract clause (c) of subsection (1) of section 105B of the Corporation
Act.
24. The learned Advocate of the respondent has submitted that
Municipal Commissioner is the authority to decide whether a premises
is required for public purpose and when, the premises is required for
public purpose, the powers under clause (c) subsection (1) of section
105B read with subsection (2) of the 105B of the Corporation Act can
be exercised. In this regard, the learned Advocate of the respondent has
referred to the decision of Hon'ble Supreme Court in the case of Ashok
Caterers V/s. Municipal Corporation of Greater Bombay (Best
Undertaking) [1997 (9) SCC 220], as noted herein earlier.
25. I have examined the aforesaid submissions of the parties. I am
convinced with the above submissions of the learned Advocate of the
appellant. The reason being firstly that except the above two proposals
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of the DMC and Assistant Commissioner and endorsement of approval
of Additional Municipal Commissioner and Municipal Commissioner
thereon, there is no statistical data on record to show that there is really
any problem of over crowding at CST subway and the shops are
required to avoid over crowding in public interest. Even if, the above
documents of proposals are considered, it can be seen from them that
the case of the corporation about extent or amount of crowd is self
contradictory. DMC says in his report that 30 to 35 lakh people
commute everyday to Churchgate and CST Railway stations. Whereas,
the Assistant Municipal Commissioner in his proposal or report says that
30 to 40 lakh people daily commute the CST and Churchgate stations.
26. Secondly, the instant case relates to CST station. No bifurcated
information exclusive to the CST station is available with the
corporation to ascertain exact figure of the commuters visiting the CST
station. Similarly, no statistical data is available as to how many people
can use the subway at a time and how much time is required to pass
through the subway. The parties have submitted in the course of
argument that the subway is having length of about 100 feet and width
of 50 feet on one point and 40 feet on the other point. To pass such
subway, one may require at least 1 or 2 minutes. During this period,
what is the capacity of this subway for using it to pass through, is not
available on record. However, if such is the size of the subway, in my
opinion, 200 to 300 people may pass through this subway, at a time.
The corporation has not produced any statistical data as to how many
people during a time of 1 or 2 minutes are normally passing through the
subway.
The record and proceedings of enquiry No.A2 pertaining to the
connected appeal No.114 of 2019 shows that corporation's witness has
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stated that it is true that what he had stated in his examinationinchief
regarding 30 to 35 lakh people commute everyday to CST subway is
false. He further says that he cannot say from where the figures of 30 to
35 lakh people is taken and mentioned in his examinationinchief. He
says that figure is mentioned in “exhibitC” in which the aforesaid 2
proposals of DMC and Assistant Municipal Commissioner are located.
The witness of the corporation says that he has seen over crowded CST
subway. However, he cannot say whether 30 to 35 lakh people
commute everyday from CST subway. The witness has admitted that
there was no such over crowding situations everyday in CST subway.
The witness has further stated that the corporation never issued any
notice to the appellant and other shopkeepers in past, alleging the
inconvenience being caused to the commuters. As these circumstances
appear in the evidence produced by the corporation, which shows that
the evidence cannot be believed to say that 30 to 35 lakh or 30 to 40
lakh people commute in CST station, it cannot be said that therefore,
there is situation of over crowding in the CST subway and shops are
required in public interest to avoid the alleged over crowding.
27. The third reason to accept the aforesaid submissions of learned
Advocate of the appellant in respect of the ground of requirement of the
premises in the public interest is that evidence of the corporation about
alleged over crowding in the subway is that the witness Rajendra,
Assistant Superintendent of Market is not author of the said proposals,
on which the Additional Municipal Commissioner and the Municipal
Commissioner have endorsed their approval. The said witness admits
that he has deposed only on the basis of records. Therefore, his
evidence would not prove the contents of these reports/proposals about
over crowding. The corporation should have examined the DMC and the
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Assistant Municipal Commissioner concerned, to prove the contents of
the said proposals dated 24/6/2015 and 29.06.2015. Failure to
examine these witnesses, certainly affects the credibility of the case of
the corporation about over crowding in the subway and requirement of
the shops for avoiding such over crowding for the public interest.
28. The fourth reason to accept the aforesaid submissions of the
learned Advocate of the appellant to discard the evidence of
corporation's witness about alleged over crowding is that the
reports/proposals of the DMC and Assistant Municipal Commissioner do
not appear to be based on any statistical data and research or any video
graphy record, showing the scenes about use of the subway. Such video
graphy or CCTV footage could be produced by the corporation as the
appellants and other shopkeepers have produced which is being
discussed in the later part herein. Therefore, the opinions given by the
DMC and Assistant Commissioner appear to be merely on surmises and
without any material in support thereof. They have referred to letter of
Chairman of standing committee, point of order raised by the councilor,
note from Assistant Municipal Commissioner (Market), minutes of
meeting of standing committee in their proposals as noted herein
earlier. But none of these documents is produced before the Enquiry
Officer to ascertain what were the driving forces for the DMC and
Assistant Municipal Commissioner (“A” ward) to propose to the
Additional Municipal Commissioner and to the Municipal Commissioner
to take decision to get the shops vacated from the appellant and the
other shopkeepers.
29. Fifth reason to discard the corporation's evidence about alleged
over crowding and requirement of the premises in public interest is that
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the case of the corporation about purpose for which the shops are
required in public interest, varies from time to time, as it is seen from
the reports of DMC and Assistant Municipal Commissioner and the
evidence of the witness of the corporation. The report of the DMC is
that there is over crowding due to the encroachment of the space by the
shopkeepers in front of their shops and hawkers using space beyond
that and it causes inconvenience to commuters to use the subway and,
therefore, the shops are required to be vacated and demolished. Thus,
as per this report, over crowding is due to the encroachment and
hawkers using the area in front of the enquiry shops. As far as, the
allegation about encroachment of the shopkeepers is concerned, the
corporation ought to have brought on record any instance of issuance of
notice to the appellant and other shopkeepers to remove the alleged
encroachment by them. No such record is brought on record by the
corporation in the course of enquiry. Therefore, this allegation about
encroachment is without any material evidence and will have to be
rejected. The second reason of over crowding as per the report of DMC
is that the hawkers are using the space in front of the shops. If it is so, it
is for the Municipal Corporation to take action against the hawkers for
removing them from there. shopkeepers cannot be punished for the use
of the spaces in front of their shops by the hawkers. The DMC (Special)
has opined that the shops are required to be demolished to increase
space in the subway. However, the Assistant Municipal Commissioner in
his report says that the shops can be used for suitable use for MCGM, if
demolition is not possible. He says that shops can be used to create CFC
like service centers for the huge crowd, which uses them. He also says
that corporation can use shops for MCGM related exhibitions and public
related initiatives. If, as per this suggestions of Assistant Municipal
Commissioner, the shops are to be used for exhibitions and public
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related initiatives etc., the alleged over crowding would still exist,
because for such exhibitions, people would naturally gather in the
subway on invitation of the corporation. Thus, reports of DMC and
Assistant Municipal Commissioner about purpose for requiring the
shops in question is varied as is rightly submitted by the learned
Advocate of the appellant.
30. If the evidence of the appellant is seen, it is found that the
appellant has stated that there is no over crowding in th subway. In
support, the appellant has produced copy of report of Mumbai Railway
Vikas Corporation Ltd. It is at exhibit2. It is based on statistical and
factual study and research done with objectives of (1) to assess the
present travel pattern of suburban rail passengers, (2) to estimate peak
hour and peak directional flow of passengers, (3) to assess the crowd
level in suburban trains, entry/exit points, stations and foot over
bridges, (4) to suggest measures to reduce congestion on foot over
bridges and (5) to know opinion of passengers on various aspects of the
suburban rail system. The said report says that the suburban rail service
in Mumbai is spread over 319 route kms on three corridors, i.e. Wstern,
Central and Harbour. There are 51 stations over Central line. CST is
situated on Central line. Central railway has 875 daily services. The
Mumbai Railway Vikas Corporation Ltd. has done survey in 20112012
to achieve the above objectives. In this report, the table is given about
hourly distribution of passengers traveling on Central line. The said
table shows that at peak hours between 9 a.m. to 10 a.m., the
maximum passengers travel between the 51 stations on central line are
213846. All these passengers are pertaining to 51 stations including
CST. The said figure is not exclusive to the CST station alone. The
figure for CST, would be much less than the above figure. Much lesser
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figure would be in respect of persons using the subway at CST, because
CST has in all 7 exit entry points and only one of them is near to the
CST subway in question. The corporation has not produced any such
statistical data to show the exact number of people using subway at a
time.
31. The learned Advocate of the respondent has submitted in the
course of argument that the appellants of appeals No.135/2019 to
137/2019 have filed document of information as to yearwise figures of
commuters from 201112 to 201718. This document was obtained by
the appellants from the Railway Department. If calculation is made, as
per these informations, the average figures of commuters using the
subway at a time during each minute, would be as under : For the year
201112 =211 commuters, 201213 =186 commuters, 201314 =164
commuters, 201415 =157 commuters, 201516 =139 commuters,
201617 =138 commuters, 201718 =131 commuters. I think these
figures are based on number of sale of passengertickets during these
years. It does not appear to be sold exclusively from CST station.
Therefore, the said figure, cannot be used to ascertain the number of
commuters per minute, at the CST station. It also cannot be used to
ascertain, how many persons pass through the subway every minute, as
CST has 7 entry/exit points & only one of them is near the subway.
However, the aforesaid information provided by the Railway
Department filed by the appellants in appeal Nos.135/2019 to
137/2019 and the above statistics given in the report of Mumbai
Railway Vikas Corporation Ltd., show certainly that the case of the
corporation that 30 to 35 lakh commuters are using the CST subway, is
definitely much exaggerated.
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32. The Enquiry Officer has not at all appreciated and discussed the
above report of Mumbai Railway Vikas Corporation Ltd. Hence, the
submissions of learned Advocate of the appellant, appear to be
acceptable that the Enquiry Officer has ignored this most important
evidence to record any findings about it.
33. The appellant has also produced the Hard Disk, which was played
in the Court in presence of the parties during the hearing of the appeal.
There is no dispute about its authenticity and it shows that the record of
CCTV footages recorded on various occasions, during a period of one
week. This was recorded from various CCTV cameras from various
angles. I have observed on watching these footages that the commuters
are using the CST subway easily and conveniently. No situation of rush
or over crowding or inconvenience to the commuters can be seen from
these CCTV footages. The Enquiry Officer has observed about this
evidence that the recording is of certain dates only and from this, it
cannot be inferred that the position as shows in the CD is same on
different dates and times and therefore, the Enquiry Officer has refused
to accept this evidence. I do not find these reasons being sound to
discard the aforesaid evidence of CCTV camera recordings. The
corporation could have produced their own recordings, if they are not
satisfied with such recordings produced by the appellant.
34. I am not convinced with the submissions of the learned Advocate
of the respondent that the decision relied upon by him in the case of
Ashok Caterers V/s. Municipal Corporation of Greater Bombay (Best
Undertaking) [1997 (9) SCC 220], is applicable to the aforesaid facts
and circumstances of the instant case. In the instant case, it is not
proved that the enquiry premises is required for any genuine public
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interest. Therefore, with respect, I hold that the said decision is not
applicable to the facts of the instant case.
35. For all the aforesaid reasons, I am unable to agree with the
findings recorded by the Enquiry Officer that the premises is required by
the corporation for public purpose i.e. for safety of public to avoid over
crowding and congestion in the CST subway. The reasons recorded by
me above show that if the evidence on record is examined in the
aforesaid manner, one would come to the conclusion that the
corporation has failed to prove that the enquiry premises is required in
public interest to avoid over crowding as alleged by the corporation.
Accordingly, I have recorded that the said fact is not proved. Hence, I
have recorded negative findings on the aforesaid point No.1.
REASONS FOR THE FINDINGS ON POINT NO.2 :
36. This point is about claim of the corporation that the occupation of
the appellant over the enquiry premises is unauthorised, after the expiry
of first 10 years block period in the year 2011. As noted herein earlier,
it is not disputed that the enquiry premises and other shops were
constructed by the corporation. As per the Municipal Commissioner's
report and approval thereof by the improvement committee of the
corporation, in the year 20002001, the corporation had intention to
give these shops on leave and licence basis. Therefore, tender notices
were issued from time to time and in the course thereof, the appellants
submitted their tenders, as per the terms and conditions of the tender
notice and, thereafter, tenders were accepted by the corporation and
consequently, the appellant and other shopkeepers have executed the
agreement. The agreement for 10 years on leave and licence basis with
certain conditions, which are being discussed herein after.
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37. Both the parties have referred to the tender notice and it's
annexures which include form of agreement to be executed if tender is
accepted. The contention of the corporation is that as per terms and
conditions of the tender notice and agreement executed between the
parties, the agreement was for leave and licence for 10 years block
period and extension of this block period by 5 years block period and
extension thereafter on expiry of each block period, would be at the
option of the corporation. The case of the appellant is that the
corporation agreed that on expiry of first 10 years block period, it shall
be binding on the corporation to extend the licence period for 5 years
block period each in future. There is no dispute that on expiry of first 5
years of the first 10 years block period, the appellant would pay the
compensation increased by 50% and similar increase will be applicable,
if licence period is extended after the first 10 years block period.
38. Thus, the dispute is whether the corporation is under contractual
obligations to extend the block period of licence, after expiry of first 10
years block period, as per the terms and conditions of the contract
between the parties, which admittedly was entered into in the year
2001. In this context, the evidence in examinationinchief of the
witnesses of the parties is as per their aforesaid respective contentions.
39. The witness of the corporation has deposed that clause (5) & (6)
of the agreement state about the renewal of agreement and the
compensation to be paid for further extended block period of 5 years,
after expiry of the period of the agreement. The witness has also stated
that the Municipal Commissioner has taken decision not to renew the
agreement. The decision of Municipal Commissioner is dated
08.07.2015. According to the witness of the corporation, clause (32) of
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the agreement clearly states that the licence shall be revoked,
withdrawn or terminated with one month's notice in writing without
assigning any reason. The corporation has revoked, withdrawn and
terminated the agreement as per the aforesaid decision of Municipal
Commissioner. Hence, notice dated 29.04.2017 has been issued to the
appellant calling upon him to vacate the enquiry premises on or before
31.05.2017.
40. Now, it is beneficial to note the relevant terms and conditions of
tender document and the consequent agreement between the parties.
The tender document comprises of (1) index of documents, (2) tender
notice, (3) form of tender, (4) terms and conditions of tender notice,
(5) agreement form to be executed if tender is accepted by corporation,
(6) form of letter of offer to be filled and signed by the tenderer and (7)
annexures about discussion of shops.
41. By the tender notice, the tenders were invited for allotment of
shops on payment of rent per month and on one time royalty basis. In
the tender notice, it was stated that tenderer would have to deposit
amount of Rs.2,00,000/ as earnest money deposit, the minimum
specific royalty (one time) would be Rs.46,750/ per Sq. Mt. of carpet
area of the shop and monthly compensation (rent) shall be Rs.390/ per
Sq. Mt. of carpet area of the shop. Terms and conditions of the tender
are stated to be 23 in number. Condition No.8 is to the effect that the
royalty amount shall be one time payment. For the purpose of licence,
the first block period shall be 10 years and each subsequent period shall
be 5 years each. The successful bidder will have to enter into agreement
with MCGM as a licensee of the shop alloted to him. However, after
expiry of first block period of 10 years and also after expiry of each
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subsequent 5 years of block period, the licensee will have to enter into
fresh agreement every time with MCGM. Legal charges will be born by
the licensee, in this regard. This term is also stated in the agreement of
leave and licence in clause (6) thereof. In clause (9) of the terms and
conditions of the tender notice, it is provided that for the purpose of
monthly compensation, the first and subsequent block period will be of
5 years. The amount of monthly compensation shall be revised after
every 5 years and the increase shall be 50% of the total amount of
initial 5 years block period. Clause (10) of the terms and conditions of
the tender notice is to the effect that the successful bidder will have to
pay an amount equal to 3 months compensation as permanent security
deposit which shall be liable to be forfeited for breach of any of the
licence conditions. Successful bidder would not sublet or dispose off the
shop alloted to him, except with written permission from the Municipal
Commissioner. In case, the licensee desires to terminate his agreement
before the expiry of the block period and transfers his licence to the
new purchaser, the new purchaser shall abide by all the terms and
conditions of the agreement of the original licensee and for such
transfer the original licensee will have to seek permission from the
corporation to transfer his licence to new purchaser, who shall be
awarded the status of a licensee of the corporation. The expenditure
due to water, electricity etc., will be borne by the licensee. In case of
dispute, decision of Municipal Commissioner shall be final and binding.
42. In the agreement of leave and licence, the terms are to the effect
that the corporation has accepted the tender of the licensee as per the
resolution of the improvement committee. It is agreed that the licenser
shall grant the licence and the licensee shall accept licence for the shop
for a period of 10 years from the date of receipt of allotment letter by
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the successful tenderer purely on leave and licence basis. As per clause
4,5 & 6, the licensee shall pay monthly compensation of Rs.390/ per
Sq. Mt. The amount of net compensation shall be revised after every 5
years and the licensees shall have to pay additional amount of 50% of
the initial 5 years block period. In clause (7), it is provided that in case
the licensee complies all of agreement and hands over vacant
possession after expiry of period of licence, the licenser shall refund the
security deposit amount to the licensee. In clause (23), it is provided
that the agreement shall be for 10 years between the dates mentioned
in this clause. It will be at the option of the licenser to renew the licence
on which terms and conditions as licenser deemed fit. In clause (24) of
the agreement, it is provided that in case of licensee terminating this
agreement before expiry of the licence period or the extended period of
licence period, the licenser shall forfeit the security deposit. In clause
(35), it is provided that this agreement will come to end by eflux of
time, after expiry of period of this agreement. In clause (32), it is
provided that the license shall be revoked, withdrawn or terminated
with one month's notice in writing without assigning any reason,
whatsoever. In clause (36), it is provided that in case of disputes, the
decision of the Municipa Commissioner or the Additional/Joint
Municipal Commissioner shall be final and binding on both the licenser
and the licensee.
43. In the light of the principles laid down by the Hon'ble Supreme
Court in the case of Bank of India V/s. K. Mohandas & Ors. (supra),
in respect of construction of a contract that it must be read as a whole
in order to ascertain true meaning of its several clauses and the words
of each clause should be interpreted, so as to, bring them into harmony
with the other provisions, if that interpretation does no violence to the
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meaning of which naturally susceptible, as relied upon by learned
Advocate of the appellant, I have examined the above documents
pertaining to the tender and the leave and licence agreement. On
reading these documents, what I find is that the intention of the
corporation from starting point of issuing tender notice was to allot
shops on leave and licence basis to the successful tenderers for a period
of 10 years block with a term that at the option of the corporation, the
said period would be extended for further period each of 5 years block
period and for each such extended block period, the parties shall
execute fresh agreement on same terms as in the earlier agreement
except about rate of compensation. For each such extended block
period, the intention was to increase compensation by 50% of
compensation which would be fixed for initial 5 years block period. This
intention of the corporation was very much expressed in the terms and
conditions of the tender notice and accordingly, the same was
incorporated in the agreement in various clauses. Clause (23) will have
to read to bring it into harmony with all those clauses, which are
naturally susceptible to aforesaid meaning that the extension of lease
period would be at the option of the corporation. I do not find any
ambiguity about such terms in the tender notice and the agreement of
leave and licence. There is no scope to infer that at some place in those
terms, it is provided that the agreement will be for permanent lease as
stated by the appellant in his evidence and as argued by his Advocate.
Merely because there are terms to the effect that successful tenderer
shall have to pay non refundable royalty amount to bear electricity
charges, minor repairing charges, telephone charges etc., it cannot be
said that it was a lease for perpetuity and not leave and licence
agreement for fixed period with aforesaid terms of extension of period
at the option of the corporation. Therefore, the decision cited supra in
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the case of Bank of India V/s. K. Mohandas & Ors., does not support
the submissions of learned Advocate of the appellant that the
documents of tender and agreement have ambiguity and as the
corporation was responsible for formulation of the terms of the
agreement, any interpretation against the corporation on the aforesaid
point would be preferred. What was agreed by the parties by the said
agreement executed between them was that the licence would be for 10
years tenure and if corporation opts, it may extend the period as stated
above. In such facts of the instant case, with respect, I hold that the
decision of Hon'ble Bombay High Court in the case of Janab Salehbhai
Saheb Safiyuddin V/s. The MCGB & Ors. (supra), is not helpful to the
appellant in contending that the licence was granted to the appellant in
perpetuity.
44. Having held as above, next point arises for consideration is
whether the occupation of the appellant is unauthorised after expiry of
first block period of 10 years, so as to satisfy the Enquiry Officer to
exercise powers under section 105B (1) (b) of the Corporation Act. The
answer to this question will have to be in negative. The reasons for this
view are being recorded in the following paras.
45. It may be noted that it is not disputed that the first block period
of 10 years as mentioned in the agreement was to expire in the year
2011 or 2012, in respect of the shopkeepers of the subway. Before 2
years of expiry of this period, a notice was issued by the corporation in
the year 2009 asking the appellant to vacate the premises on expiry of
the agreement period. The agreement had provided that at the option
of the corporation, the period would be extended for 5 years block
period and if the corporation exercises that option, the appellant would
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have to pay compensation at the rate as described in the agreement
clause (5) and (6) as noted herein earlier. In the facts appearing from
the evidence on record, it appears that the corporation had opted for
extension of license period with certain modifications that the licence
period would be till finalization of the fresh tender process as described
in the proposal dated 20.08.2013 submitted by Dy. Superintendent
(Market) of the corporation with endorsement dated 21.08.2013 made
by DMC (Special) and approved by the Additional Municipal
Commissioner (WS) on 06.09.2013. Copy of it is produced by the
appellant (exhibit3 in the connected appeal No.114/2019). It is not
disputed that since year 2009, the appellant through the association of
the shopkeepers of the subway, had been giving representations to the
corporation for extending the licence period and for executing fresh
agreement as per the terms of the initial agreement. In the said
representations, the association of the shopkeepers had stated that it
was obligatory on the part of the corporation to extend the licence
period and to execute the agreement, but as noted herein earlier that
extension of the period of licence is within option of the corporation,
the said contention of the appellant in the representations could not
have been accepted. However, the said proposals of the association of
the shopkeepers for extension licence period, were under consideration
of the corporation. The report dated 24.02.2012, 08.05.2012 produced
on record show that officials of the corporation were discussing the
subject about renewal of licence agreements of the shopkeepers.
Pending the corporation's aforesaid decision on shopkeepers
representations, on 02.07.2013 the corporation's Deputy
Superintendent (Market) issued letter dated 02.07.2013 (exhibit4) to
the association of the shopkeepers. In the said letter, the Deputy
Superintendent called upon the shopkeepers including the appellant to
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pay the arrears of compensation as per the increased rate by 50% for
the third block period of 5 years. Admittedly, the appellant and other
shopkeepers have paid the compensation as per said letter. Some of
them have paid upto the year 2016 and some of them have paid upto
initial months of the year 2017. After the above letter dated
02.07.2013, the Dy. Superintendent (Market) of the corporation
submitted his report and proposal to the Assistant Municipal
Commissioner (Market). The said proposal was with reference to the
subject of renewal of licence agreements of appellant and other
shopkeepers, with reference to their above said representations. The
Deputy Superintendent (Market) proposed the following, in his said
proposal dated 20.08.2013.
“(1) To invite fresh Tenders for allotment of 46 shops at C.S.T.
Subway by incorporating a specific condition of First Right of
Refusal to the existing occupants of each shops.
(2) To continue the existing Shop Keepers till the finalization of
Tender process with increased rent as shown in the Table “A”.
Submitted for perusal & approval of Sr. no.1 & 2 above of A.C.
(Mkts)/D.M.C. (Spl)/Hon. Addl. M.C. (WS).
On receipt or orders fresh Tenders will be invited within one
month.
Submitted please.”
46. On the aforesaid proposal, the Assistant Municipal Commissioner
(Market) signed on 21.08.2013. The said signature appears to be of the
Assistant Municipal Commissioner (Market) Mr. Chore. Then, DMC
(Special) endorsed “as proposed submitted for approval pl.” Then, the
proposal was placed before the Additional Municipal Commissioner
(WS), who approved the aforesaid proposal of the Dy. Superintendent
regarding calling of the fresh tenders and continuing the existing
shopkeepers till finalization of the tender process. The Additional
Municipal Commissioner (WS) approved the aforesaid proposal in the
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words “approved as proposed. Process on priority.” Thereafter, file went
to the Assistant Municipal Commissioner (Market) for compliance of
above order of the Additional Municipal Commissioner. He then
processed the matter for further implementation to the other officials.
47. After the said order of the Additional Municipal Commissioner to
call fresh tenders and for permitting the appellant and other
shopkeepers to occupy their respective shops till finalization of fresh
tender process, the Additional Municipal Commissioner submitted the
proposal of Assistant Municipal Commissioner, “A” ward, Shri Chore
dated 29.06.2015 for approval to the Municipal Commissioner. The said
proposal of the Assistant Municipal Commissioner Shri Chore is dated
29.06.2015 and it is to the effect that the Assistant Commissioner is in
total agreement with the proposal of DMC(Special) that the subway is
facing over crowding problem and, therefore, the shops are required to
be vacated to avoid over crowding in the public interest. It may be
noted that the Assistant Municipal Commissioner, “A” ward, Mr. Chore
is the same person, who on 21.08.2013 endorsed the proposal of the
Deputy Superintendent (Market) for inviting fresh tenders and for
continuing the existing shopkeepers till finalization of the fresh tender
process. Within a period of 2 years between 2013 to 2015, the said
Assistant Municipal Commissioner has changed his mind in respect of
calling of fresh tenders for giving the shops on leave and licence
without pointing out, how the problem of over crowding has started
after Mr. Chore's earlier proposal of 21.08.2013. Therefore, the action
of the corporation to take decision to evict the shopkeepers does not
appear to be bonafide.
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48. It is the aforesaid proposal of Assistant Municipal Commissioner
Shri Chore dated 29.06.2015, which was approved by the Additional
Municipal Commissioner for placing the matter before the Municipal
Commissioner for approval. The Additional Municipal Commissioner
(WS) endorsed that “The matter is discussed. I am in agreement with
the views of Assistant Commissioner (A ward). The existence of these
shops have become hindrance in flow of pedestrians, who are using
subway. It would be proper in my opinion if the shops premises are
used for service provided by MCGM by providing it to chowki etc.” This
endorsement of the Additional Municipal Commissioner is dated
07.07.2015 and it is signed by him. Below this endorsement and
signature of Additional Municipal Commissioner, there is signature of
the Municipal Commissioner and that signature is dated 08.07.2015.
On the basis of this order of the Municipal Commissioner, the notice
dated 26.06.2016 was issued to the shopkeepers asking them to vacate
the premises. This notice was challenged before the Hon'ble Bombay
High Court in various Writ Petitions including Writ Petition No.1990 of
2016. The Hon'ble High Court has set aside that notice giving liberty to
the corporation to evict the shopkeepers by following due process of
law. Thereafter, the notice dated 29.04.2017 was issued by the
corporation to the appellant and other shopkeepers stating that the
Municipal Commissioner has taken a decision not to renew the
agreement and after the earlier agreement, no fresh agreement has
been executed and therefore, under clause (32) of the agreement, the
corporation has revoked, withdrawn and terminated the agreement and
revoked the licence to occupy the shop. By the said notice, the appellant
was called upon to vacate the enquiry premises on or before
31.05.2017.
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49. As noted earlier, the corporation is insisting for vacating the
enquiry premises on the basis of the aforesaid order dated 08.07.2015
of the Municipal Commissioner on the proposal of the Additional
Municipal Commissioner dated 07.07.2015 and Assistant Municipal
Commissioner (Market) dated 29.06.2015 as described herein earlier.
However, the above order of the Municipal Commissioner dated
08.07.2015 cannot be said to valid to hold that the occupation of the
appellant is unauthorised. The reason being that the earlier order of
Additional Municipal Commissioner dated 06.09.2013 gives certain
rights to the appellant and other shopkeepers of the subway. Firstly, the
right given is to have a right of refusal when the fresh tenders are called
and secondly, the right to occupy the premises till finalization of the
process of the fresh tender, was also given. This appears to be a
contractual right of the appellant in the context of their earlier
agreement. What was provided in the earlier agreements of 2001 and of
2002 in some cases, was that at the option of the corporation, the
period of licence may be extended. The appellant and the other
shopkeepers had already given representations through their
associations giving an offer for extension of period of licence in terms of
the initial agreement. The corporation through the Additional
Municipal Commissioner accepted the same in terms as stated above in
his order dated 06.09.2013 for calling fresh tenders and giving right of
first refusal to the appellant and other shopkeepers and to continue
them with the occupation of the premises till finalization of the tender
process. Therefore, a valid contract appears to have come into existence
between the parties creating an obligation on the corporation to allow
the appellant to occupy the premises till finalization of the fresh
tenders. Admittedly, such tenders are neither called nor the process
thereof is completed. Therefore, till such time the occupation of the
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Judgment .. 73 .. Misc. Appeal No.119/2019
appellant is authorised and cannot be termed as unauthorised
occupation as defined under clause (d) of section 105A of the
Corporation Act and section 105B of that Act, would not be attracted
in such situation of the instant case. In this regard, reliance may be
placed on the decision of Hon'ble Supreme Court in the case of Senior
Divisional Commercial Manager & Ors. V/s. S.C.R. Caterers, Dry
Fruit Juice Stalls Welfare Association & Anr.(supra), as relied upon
by the learned Advocate of the appellant. In that case, it was held that
the Mumbai Municipal Corporation is 'State' within the meaning of
Article12 of the Constitution of India. In that case, it was held that
Article14 of the Constitution of India mandates that state action must
not be arbitrary and discriminatory. Reliance may also be placed on the
decision of Hon'ble Bombay High Court in the case of Janab Salehbhai
Saheb Safiyuddin V/s. The MCGB & Ors. (supra), as relied upon by
the learned Advocate of the appellant. The aforesaid order dated
06.09.2013 of the Additional Municipal Commissioner giving certain
rights to the appellant and other shopkeepers appears to be in
consonance with the principles of balancing rights as laid down by the
Hon'ble Supreme Court in the case of of Bharmal Medical Store, Civil
Hospital, Badnagar & Ors.V/s. State of Madhya Pradesh & Ors.
(supra), as relied upon by the learned Advocate of the appellant. In the
aforesaid circumstances of the instant case, the order dated 06.09.2013
of the Additional Municipal Commissioner for calling fresh tenders etc.,
could not have been ignored while passing order dated 08.07.2015 by
the Municipal Commissioner for vacating the shopkeepers from the
enquiry premises. The witness of the corporation has admitted that
while passing the aforesaid order dated 08.07.2015 by the Municipal
Commissioner, the earlier order dated 06.09.2013 passed by the
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Judgment .. 74 .. Misc. Appeal No.119/2019
Additional Municipal Commissioner was not placed before the
Municipal Commissioner. I am not convinced with the submissions of
the learned Advocate of the respondent that this admission of the
witness cannot be said to be with reference to the said order of
Additional Municipal Commissioner, because that was not an order, but
it was yet to be finalized as order. Whether the aforesaid order of the
Additional Municipal Commissioner amounts to a final or not is being
discussed herein below. At this stage, it is sufficient to say that the
aforesaid admission of the witness is very much with reference to the
Additional Municipal Commissioner's aforesaid order dated 06.09.2013.
50. The learned Advocate of the respondent has submitted that the
order of approval dated 06.09.2013 endorsed by the Additional
Municipal Commissioner on the proposal of Dy. Superintendent
(Market) dated 20.08.2013 and Assistant Municipal Commissioner Mr.
Chore dated 21.08.2013, was not finalized by the Municipal
Commissioner. He submits that even assuming that it was finalized, the
same is superseded by the subsequent order dated 08.07.2015 of the
Municipal Commissioner. Therefore, the earlier order of Additional
Municipal Commissioner dated 06.09.2013, does not remain in force
any more after 08.07.2015. On the other hand, the learned Advocate of
the appellant has submitted that powers of Additional Municipal
Commissioner are equivalent to the Municipal Commissioner.
Therefore, it cannot be accepted that Additional Municipal
Commissioner's order requires approval of Municipal Commissioner to
achieve finality. He has referred to the definition of “Commissioner”
given in clause (d) of section 3 of the Corporation Act. In that provision,
it is provided that the Commissioner means the Municipal
Commissioner appointed under section 54 and includes a Additional
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Judgment .. 75 .. Misc. Appeal No.119/2019
Municipal Commissioner appointed under subsection (3) of section 54
of a acting Commissioner appointed under subsection (3) of section 59.
51. I find merits in the aforesaid submissions of the learned Advocate
of the appellant as it is supported by the provisions of clause (d) of
section 3 and section 54 of the Corporation Act. The second limb of the
submissions of the learned Advocate of the respondent is also not
acceptable, because corporation could not have violated the rights of
the appellant accrued to him in the light of the Additional Municipal
Commissioner's aforesaid order dated 06.09.2013, without any legal
basis, in view of the principles laid down in the aforesaid decisions cited
supra.
52. The learned Advocate of the respondent has urged that no
contractual rights appear to have been accrued in favour of the
appellant in view of the aforesaid order dated 06.09.2013 of the
Additional Municipal Commissioner. He submits that unless this order
was communicated to the appellant, the appellant could not have
acquired any right under the said order. However, this submission is
also not convincing for the reason that the respondent has been
accepting compensation from the appellant and other shopkeepers. In
some cases, the corporation has accepted the compensation till the year
2016 and in some other cases, the corporation has accepted the
compensation till March 2017. By such conduct of the respondent, the
appellant and other shopkeepers were made to believe that the period
of licence has been extended in terms of the earlier agreement.
Moreover, the order dated 06.09.2013 of the Additional Municipal
Commissioner was a public order, publicly made in the exercise of
statutory powers. It cannot be changed only because it was not
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Judgment .. 76 .. Misc. Appeal No.119/2019
communicated formally to the appellant. In this regard, reference may
be made to the decision of Hon'ble Supreme Court in the case of State
of Punjab V/s. Bandeep Singh & Ors. (supra), as cited by the learned
Advocate of the appellant. In that case, it was observed that public
order made by public authority is to have public effect and is intended
to affect the acts and conduct of those to whom such order is addressed.
In any way, I do not find any reason to disentitle the appellant from
the rights accrued to the appellant from the said order dated
06.09.2013 only because the corporation has not formally
communicated it to the appellant. The appellant has stated that he was
awaiting for implementation of the said order dated 06.09.2013. This
indicates that any how the appellant has been knowing the order dated
06.09.2013. Therefore, the aforesaid submission of the learned
Advocate of the respondent cannot be accepted.
I am not convinced with the submissions of the learned Advocate
of the respondent that the decision relied upon by him in the case of
Ashok Caterers V/s. Municipal Corporation of Greater Bombay (Best
Undertaking) [1997 (9) SCC 220], is applicable to the aforesaid facts
and circumstances of the instant case. In the instant case, it is not
proved that the occupation of the appellant is unauthorised and the
period of licence has expired. In that case, the period of lease was
already expired and therefore, it was held that occupation of the
occupant over the premises in question was unauthorised. In the facts
of the instant case, it is proved that the licence to occupy the premises is
continued till finalization of the fresh tender process as per the order of
the Additional Municipal Commissioner dated 06.09.2013. Therefore,
with respect, I hold that the said decision is not applicable to the facts
of the instant case.
For all the aforesaid reasons, I find that the findings and the
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Judgment .. 77 .. Misc. Appeal No.119/2019
reasons recorded by the Enquiry Officer on the point about
unauthorised occupation of the appellant over the enquiry premises,
cannot be justified and sustained. The Enquiry Officer has not
considered that the order dated 08.07.2015 passed by the Municipal
Commissioner for vacating the premises, was without considering the
earlier order of the Additional Municipal Commissioner dated
06.09.2013, giving rights to the appellant to remain in occupation till
finalization of the fresh tender process and such time has not arrived as
yet. The Enquiry Officer therefore has come to wrong conclusion that
the occupation of the appellant is unauthorised and therefore, I am
unable to agree with the aforesaid findings of the Enquiry Officer.
For all the aforesaid reasons, I have recorded my findings on
point No.2 in negative.
REASONS FOR THE FINDINGS ON POINT NO.3 & 4 :
53. In view of the negative findings recorded by me on points No.1 &
2 herein earlier, the impugned order and notice are not sustainable
and, therefore, they are liable to be set aside. Accordingly, I have
recorded affirmative findings on point No.3.
54. As I have held that the impugned order and notice issued by the
Enquiry Officer are liable to be set aside, the appeal will have to be
allowed and the application made by the corporation to the Enquiry
Officer for passing order of eviction will have to be rejected, by setting
aside the impugned order and notice. Accordingly, I have recorded my
findings on point No.4. Hence, I pass following order.
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Judgment .. 78 .. Misc. Appeal No.119/2019
: O R D E R :
1. The Miscellaneous Appeal No.119 of 2019 is allowed as
under :
(i) The impugned order dated 15.03.2019 and the
impugned notice dated 15.03.2019 issued by the Enquiry
Officer under section 105B of the Mumbai Municipal
Corporation Act is set aside.
(ii) The application made by the Corporation to the Enquiry
Officer under section 105B of the Mumbai Municipal
Corporation Act is rejected.
(iii) Parties to bear their own costs.
(iv) Record and Proceedings of the enquiry be sent back to
the Enquiry Officer.
2. In these terms, the appeal stands disposed off accordingly.
(SADRUDDIN A. QUAZI)
Judge, (C.R.No.4)
Date : 25.06.2019. City Civil Court, Gr. Mumbai
Dictated on : 19.06.2019, 20.06.2019, 21.06.2019, 24.06.2019, 25.06.2019.
Transcribed on : 19.06.2019, 20.06.2019, 21.06.2019, 24.06.2019, 25.06.2019.
Signed on : 26.06.2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
27.06.2019, at 05.35 p.m.
UPLOAD DATE AND TIME
Tushar P. Kuwar
[NAME OF STENOGRAPER]
Name of the Judge
(With Court room no.)
HHJ Shri S. A. Quazi
Court Room No.4
Date of Pronouncement of Judgment/order 25.06.2019.
Judgment/order signed by P.O. on 26.06.2019.
Judgment/order uploaded on 27.06.2019.
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