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PETITIONER: PRAKASH WAREHOUSING CO.

       Vs.

RESPONDENT: MUNICIPAL CORPORATION OF GREATER BOMBAYAND ANR.

DATE OF JUDGMENT13/03/1991

BENCH: THOMMEN, T.K. (J) BENCH: THOMMEN, T.K. (J) SAHAI, R.M. (J)

CITATION:  1991 SCR  (1) 829        1991 SCC  (2) 304  JT 1991 (1)   631        1991 SCALE  (1)416

ACT:      Bombay Municipal Corporation Act, 1888--Sections 68 and 105  A-H--Corporation  premises--Eviction  of   unauthorised occupants--Powers of Corporation.      Constitution  of India 1950. Article 227--High  Court-- Interference with finding of fact--Whether valid.

HEADNOTE:      The  original  occupant  of the  suit  godowns  had  on 1.10.1963  granted to the appellant a licence in respect  of the premises and subsequently by a deed of assignment  dated 13.8.1966 assigned all its rights, title and interest in the premises  in favour of the appellant. The appellant  had  in the  meantime  by agreement dated  27.3.1964  permitted  the second  respondent  to  store goods  in  the  premises.  The appellant thereafter requested the Corporation to  recognise it  as the principal occupant of the premises by means of  a formal agreement. This request was at first rejected by  the Corporation  on the ground that the second  respondent,  had been  already in occupation of the  premises.   Subsequently the  Corporation  examined the terms and conditions  of  the agreement  dated 27.3.1964 and after satisfying  itself  the Corporation    transferred  the  occupancy  right   to   the appellant  on  the appellant executing  a  formal  agreement dated 17.6.1967.      A  notice dated 25.7.1969 terminating tenancy in  terms of   the  agreement  dated  17.6.1969  was  served  on   the appellant. This was followed by an enquiry under the  Bombay Municipal  Corporation Act 1888 which resulted in the  order of   eviction  dated  6.1.1971,  the  appellant  being   the principal tenant and the second respondent as a sub tenant.      The  enquiry officer, acting as a delegate in terms  of section  68 and exercising the power of Commissioner of  the Municipal   Corporation   of  Greater  Bombay,   the   first respondent  under  section  195B, ordered  eviction  of  the appellant on the ground of sub-letting the premises.      The  enquiry  officer, on inspection,  found  that  the second  respondent  was in occupation of the premises  as  a sub-lessee that the appellant                                                        830 had  sub-let  the  premises contrary to  the  terms  of  the conditions of occupation and had thus become an unauthorised

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occupant liable to be evicted from the premises in terms  of section 105B, and passed  an order of  eviction against  the appellant.      This  order was, on appeal, set aside by the  appellate officer,  on appreciation of the evidence and the  terms  of the  agreements,  the  appellate  officer   held  that   the agreement   dated  27.3.1964,  approved  and  recorded   the assignment and transfer of the right, title and interest  of the  original occupant to the appellant, and recognised  the appellant   as  the   principal  occupant,  and   that   the Corporation   was  at  all  material  times  aware  of   the appellant’s relationship with the second respondent and  the occupation  of the premises by the second  respondent  under the  appellant. The eviction of the appellant solely on  the ground of sub-letting was therefore unwarranted.      The  High Court in exercise of its  jurisdiction  under Article  227  of the Constitution held  that  the  appellate officer  was wrong in saying that the circumstances had  not altered so as to warrant an order of eviction on the  ground of sub-lease, and that the lease in favour of the  appellant had been duly determined by the Corporation in terms of  the contract,   and   the  appellant  having  thus   become   an "unauthorised"  occupant  was as such liable to  be  evicted under  clause  (b) of sub-section (1) of section  105B.  The High  Court  accordingly  set aside the order  made  by  the appellate officer under section 105B  and restored the order of eviction made under section 105B by the Enquiry Officer.      In the appeal to this Court it was submitted on  behalf of  the  appellant that persons in  occupation  of  premises under authority are not liable to be evicted otherwise  than on  any one of the statutorily specified grounds,  and  that the application of clause (b) of sub-section  (1) of section 105B,   is confined  to persons in unauthorised  occupation, and  that  the  appellate  officer  having  found  that  the Corporation when it entered into an agreement of  occupation with the appellant on 17.6.1967 fully aware of the terms and conditions   under  which  the  second  respondent  was   in occupation  of the  premises under the appellant,  the  High Court  was  not justified in upholding the eviction  of  the appellant on the very same ground.      On  behalf of the respondent No. 1-Corporation  it  was submitted  that  in view of the finding that  the  sub-lease granted or renewed by the appellant was contrary to  clauses (6)  and (2) of the agreement dated 17.6.1967 the  appellant has, after the expiry of the period stipulated in                                                        831 the notice dated 25.7.1969, become an unauthorised occupant, and  is liable to be evicted in terms of clause (b) of  sub- section  (1) of section 105B.      On the question: whether it is open to the  Corporation to have recourse to clause (b) of sub-section (1) of section 105B  to order eviction of the appellant as an  unauthorised occupant,   and  whether  clause  (b)  is  attracted   where eviction is sought to be made by determination of  authority otherwise than in terms of the statute.      Allowing the appeal, the Court,      HELD:  1.  Section 105A to section 105H of  Chapter  VA were  inserted  in  the Act in 1961 to  provide  for  speedy eviction   of   persons  in   unauthorised   occupation   of Corporation   premises.  (839C)  Section   105A(d)   defines ’unauthorised   occupation’.  This  definition  shows   that occupation  of  Corporation premises without  authority  for such   occupation  is  an  unauthorised   occupation.   Such occupation  includes continuance in occupation by  a  person after the authority under which he occupied the premises has

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"expired"  or it has been "duly determined". the  definition thus  includes  not  only a  trespasser  whose  initial  and continued   occupation  has  never  been  under  any   valid authority,  but it also includes in equal measure  a  person whose  occupation at its commencement was  under  authority, but  such  authority has since expired, or,  has  been  duly determined--Which  means validly determined. The  expiry  of authority  to  occupy  occurs  by reason  of  the  terms  or conditions   of   occupation.  On  the   other   hand,   the determination of authority to occupy to be due or valid must be  founded on one of the grounds specified by the  statute. Any  order of eviction on the ground of either  "expiry"  or due  determination"  has to be made in accordance  with  the procedure prescribed by the statute. [839D-H]      3.  Clause  (a)  of sub-section  (1)  of  section  105B contains various grounds upon which a person is liable to be evicted. Clause (b) says that unauthorised occupation itself is  a  ground for eviction. Sub-section (2) speaks  of  show cause  notice before an order of eviction by notice is  made under   sub-section  (1).  Sub-section  (3)  has   conferred sufficient power on the Commissioner to enforce an order  of eviction made by him under sub-section (1). For the  purpose of  holding  an enquiry under the Act, the  Commissioner  is invested  with  all  the powers of a  Civil  Court  (Section 105E) An appeal lies from every order of the Commissioner                                                        832 under section 105B or section 105C to the appellate officer, namely the Principal Judge of the City Civil Court of Bombay (section 105F), whose orders are final and not liable to  be "called  in  question in any original suit,  application  or execution proceeding" (Section 105G). [841E-G]      4.  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 sub-section (1) of section 105B.  Clause (a)  contemplates eviction of any person on any one  of  the grounds mentioned in sub-clauses (i) to (iv) thereof.  These grounds relate only to a person in authorised occupation  of Corporation premises. They have no application to a trespasser. [841H-842B]      5.   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,  hospitals, colleges, markets, destitute-homes and  the like will indeed qualify  for invoking the Commissioner’s power under  clause (c). [842C]      6.  Clause (b) is a powerful weapon for eviction of  an unauthorised occupant. This clause is applicable equally  to a  trespasser  as it is to a  person  whose  occupation  has ceased to be an authorised occupation by reason of expiry of authority in terms thereof or due determination of authority under clause (a) or clause (c) of sub-section (1) of section 105B. [842D]      7.  If a person is in occupation without authority,  as in the case of a trespasser, or if the authority under which a  person  has  been in occupation  has  expired   in  terms thereof  and  he continues to remain in  occupation  of  the

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premises,  he  will be liable to be evicted  on  the  ground mentioned in clause (b) of sub-section (1) of section  105B, but  in  accordance  with the procedure laid  down  in  that section  and   on  the  satisfaction  of  the  Commissioner, expressed  by  an  order,  as  to  the  lack  or  expiry  of authority. [842E-F]      8.   Sub-letting as such, without more, is not a ground for eviction                                                        833 under  clause (a) (ii). What attracts eviction in  terms  of that provision is sub-letting which is contrary to the terms or conditions of occupation. [843C]      In  the instant case, the appellate officer  has  found that the occupation of the premises by the second respondent under  the appellant was well-known to the Corporation;  the terms  and  conditions  of  that  occupation  were   closely scrutinised  by  the  Corporation  before   recognising  the transfer of rights and interest from the previous  principal occupant  to  the appellant; and, it was on that  basis  and with  that  knowledge that the  Corporation  authorised  the occupation of the premises by the appellant in terms of  the agreement  dated 17.6.1967. In such circumstances,  whatever right  of  occupation which the  second  respondent  enjoyed under the appellant must be deemed to have been incorporated as  a  term of the authority granted by the  Corporation  in favour   of  the  appellant.  The  appellate   officer   has categorically found that there was no evidence whatsoever to indicate  that the circumstances in which the  premises  had been occupied by the second respondent had in any manner, or at any time, altered so as to affect the terms or conditions under  which the appellant was  recognised as the  principal occupant.  The  Corporation  is, accordingly  on  the  facts found, estopped from having recourse to the  ground  falling under  clause (a) (ii) of sub-section (1) of  section  105B. [843D-G]      9.   In   proceedings   under  Article   227   of   the Constitution,   the   high  Court  was  not   justified   in interfering  with the findings of fact rendered against  the Corporation by the appellate officer. [843H-844A]

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2589  of 1979.      From  the  Judgement  and Order dated  8.8.1977  of  the Bombay  High Court in Special Civil Application No.  983  of 1972.      V.M. Tarkunde, Ms. S. Janani and Mrs. Urmila Kapoor for the Appellant.      S.B. Bhasme, U.R. Lalit, D.N. Misra, R.A. Gupta and Ms. Shefali Khanna for the Respondents.      The Judgement of the Court was delivered by      THOMMEN.  J. This appeal arises from the  judgement  of the  Bombay High Court in Special Civil Application No.  983 of 1972 setting                                                        834 aside  the  order  made  by  the  appellate  officer,   (the Principal  Judge  of  the City Civil  Court,  Bombay)  under section  105F of the Bombay Municipal Corporation Act,  1888 (’The Act’ whereby he allowed the appellant’s appeal against the order of eviction made against it under section 105B  of the  Act by the enquiry officer, acting in terms of  section 68  of  the  Act as a delegate of the  Commissioner  of  the Municipal   Corporation   of  Greater  Bombay,   the   first

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respondent, ("the Corporation").      By the impugned judgement, the High Court has confirmed the  order  of  eviction made against  the  appellant,   the principal   occupant  of  two  godowns  belonging   to   the Corporation. the original occupant of the godowns, Glenfield &  Co., had on 1.10.1963 granted to the appellant a  licence in  respect of these premises and subsequently by a deed  of assignment  dated 13.8.1966 assigned all its  rights,  title and interest in the premises in favour of the appellant. The appellant thereafter requested the Corporation on the ground that  Ghatge   &  Patil (Transport) Pvt.  Ltd.,  the  second respondent, had been already in occupation of the  premises, and   after  satisfying  itself  as  to  those  terms,   the Corporation transferred the occupancy right from Glenfield & Co.  to  the appellant on the appellant executing  a  formal agreement  dated 17.6.1967. The Corporation was  thus  fully aware  of  the  terms and conditions of  occupation  of  the premises  by  the  second respondent,  and,  with  the  full knowledge of those terms, the appellant was recorded in  the Corporation’s book as the principal occupant in the place of Glenfield  & Co. the second respondent was  thus  understood and  accepted by the Corporation to be in occupation of  the premises under the appellant. All this was in 1967.      A   notice   dated   25.7.1969   terminating    tenancy purporatedly  in terms of the agreement dated 17.6.1967  was served  on  the appellant. This was followed by  an  enquiry under  the Act which commenced in  1970 and resulted in  the order  of  eviction dated 6.1.1971. The  order  of  eviction refers  to  the appellant as the principal  tenant  and  the second  respondent  as a sub-tenant.  The  enquiry  officer, acting  as a delegate in terms of section 68 and  exercising the power of Commissioner                                                        835 under  section 105B, ordered eviction  of the  appellant  on the  ground of sub-letting the premises. She held  that  the appellant had sub-let the premises contrary to the terms  or conditions of occupation and had thus become an unauthorised occupant liable be evicted from the premises.      The enquiry officer, on inspection, found that that the second respondent was in occupation of the premises as  sub- lessee.  She  noticed  the  terms  and  conditions  of   the agreement dated 27.3.1964 under which the premises had  been allowed  to  be  occupied  by  the  second  respondent.  She concluded  that the appellant had, by reason of  sub-letting contrary  to the terms or conditions of  occupation,  become liable to be evicted in terms of section 105B.  Accordingly, she passed an order of eviction against the appellant.      This  order was, on appeal, set aside by the  appellate officer.   On  appreciation  of  the  evidence  on   record, including   the  terms  of  the  relevant  agreements,   the appellate officer   held that the agreement dated 27.3.1964, under which the second respondent occupied the premises, had been  well-known  to the Corporation, and  the  Corporation, having  satisfied  itself  as to the  full  implication  and significance  of that occupation, approved and recorded  the assignment and transfer of the right,  title and interest of Glenfied  &  Co.  to  the  appellant,  and  recognised   the appellant  as  the principal occupant. The  Corporation  was thus  at  all  material  times  aware  of  the   appellant’s relationship  with the second respondent and the  occupation of   the  premises  by  the  second  respondent  under   the appellant.  Accordingly the appellate officer held that,  in the  absence of any material to show that  the  relationship between  the  appellant  and the second  respondent  had  so altered since the appellant’s agreement with the Corporation

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as  to  violate the terms or conditions of  occupation,  the eviction  of  the  appellant solely on the  ground  of  sub- letting was unwarranted.      The reasoning of the appellate officer thus appears  to be  that the Corporation having allowed the transfer of  the occupancy right of Glenfield & Co. to the appellant with the full  knowledge of the terms and conditions under which  the second  respondent was already let into the premises by  the appellant,  whatever be the nature of  their  relationship-- whether  it  be  a lease  or  licence--the  Corporation  was estopped  from now contending that the  alleged  sub-letting was  contrary to the terms or conditions of the  appellant’s occupation  of the premises and that the appellant  had  for that reason become liable to be evicted.                                                        836 This is what the appellate officer stated on the point:            "...There is no allegation that after the tenancy          was  transferred in the name of the  applicant,with          the  full  knowledge and consent of  the  Municipal          Corporation as to the terms and conditions on which          the  premises were occupied by the 2nd  respondent,          there has been any change in the nature of the  2nd          respondent’s occupation of the part of the premises          and  also  in  the  terms  and  conditions  of  the          occupation.  Although the subsequent agreement  was          entered  into  between the appellants and  the  2nd          respondent, it was on the same terms and conditions          as  the first agreement which was  produced  before          the ward officer before the transfer of tenancy  in          favour  of  the appellants .......  In  this  case,          therefore,  even  if  the  agreement  between   the          appellants and the 2nd respondent is interpreted as          a   sub-tenancy  agreement  and  under   the   said          agreement  the appellants are said to  have  sublet          the  premises  to  the  2nd  respondent,  the  said          subletting  was prior to the transfer to tenancy in          favour  of  the appellants and was  with  the  full          knowledge and consent of the Municipal Corporation:          and,  therefore,  that cannot be considered  to  be          subletting in breach of the agreement of tenancy so          as to enable the Municipal Corporation to evict the          appellants on that ground..."      This is essentially a finding of fact. The order of the appellate  officer is final and is not ordinarily liable  to be  called  in question (see section   105G).  Nevertheless, this finding was set aside by the High Court by the impugned judgment  in exercise of its jurisdiction under Article  227 of the Constitution. The High Court held:          "......Even otherwise, in our view, respondent No.1          was  liable  to be evicted  under  section  105B(1)          clause  (a) subclause (ii). We are unable to  agree          with  the  finding given by the  learned  Principal          Judge  that  no change in the  circumstances  under          which the tenancy had been transferred in the  name          of respondent No. 1 has taken place after the grant          of the lease and,  therefore, the Corporation would          be stopped from alleging that respondent No. 1  had          sublet the premises...."      The High Court thus held that the appellate officer was wrong in                                                        837 saying  that  the  circumstances had not altered  so  as  to warrant an order of eviction on the ground or sub-lease. The High  Court  also  held  that the lease  in  favour  of  the appellant   had been duly determined by the  Corporation  in

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terms of the contract, and the appellant having thus  become an  "unauthorised" occupant was as such liable to be evicted under  clause  (b) of sub-section (1) of section  105B.  The High Court stated:           ".....  if a tenancy is terminated  in  accordance           with  terms of the tenancy agreement, it  must  be           held  to  be duly terminated. Such  a  person  was           liable  to  be  evicted under  the  provisions  of           section 105B(1) of the Act."      The Corporation has indeed the power to order  eviction on the ground of sub-letting which is contrary to the  terms or conditions of occupation. But it cannot be gainsaid that, when  by specific agreement dated 17.6.1967 the  Corporation recognised the assignment of all rights, title and  interest made  by  Glenfield  & Co. on 13.8.1966  in  favour  of  the appellant  in respect of the premises in question, and  thus treated  the  appellant  as  the  principal  occupant,   the Corporation  was fully aware of the terms and conditions  of the  agreement  dated  27.3.1964  under  which  the   second respondent  was  already  in  occupation  of  the  premises. Nevertheless,  the Corporation  entered into  the  agreement dated  17.6.1967  accepting the appellant as  the  principal occupant  in the place of Glenfield & Co. In the absence  of any  evidence  to  show that the  relationship  between  the appellant and the second respondent has since altered so  as to  violate the terms of the agreement of  occupation  dated 17.6.1967.  It  is  not open to  the  Corporation  to  order eviction of the appellant on the ground of sub-letting which is  alleged  to be contrary to the terms  or  conditions  of occupation.  The High Court, in our view,  wrongly  reversed the  finding  of  fact on that  question  by  the  appellate officer. Whether the circumstances had changed or not was  a question then is, whether, as found by the High Court,it  is open  to the Corporation to have recourse to clause  (b)  of sub-section  (1)  of section 105B to order eviction  of  the appellant  as  an  unauthorised  occupant.  Is  clause   (b) attracted   where   eviction  is  sought  to  be   made   by determination  of authority otherwise than in terms  of  the statute?      Mr. V.M. Tarkunde, appearing for the appellant, submits that   the   appellate  officer   having  found   that   the Corporation was, when it                                                        838 entered  into an agreement of occupation with the  appellant on 17.6.1967, fully aware of the terms and conditions  under which  the  second  respondent  was  in  occupation  of  the premises in question under the appellant, the High Court was not justified in upholding the eviction of the appellant  on the very same ground. The application of clause (b) of  sub- section  (1) of section 105B, counsel says, is  confined  to persons in unauthorised occupation. Persons in occupation of premises  under  authority  are  not liable  to  be  evicted otherwise  than  on  any one of  the  statutorily  specified grounds.      Mr. S.B. Bhasme, appearing for the Corporation, submits that  in view of the finding that the sub-lease  granted  or renewed  by the appellant was contrary to clause (6) of  its agreement dated 17.6.1967 which provided.           ".....I  agree  that  this  godown  will  not   be           assigned  or sub-let or allowed to be occupied  by           any person and if it or any part of it is assigned           or sub-let to any other party, I will be liable to           be ejected immediately". and  also in view of clause (2) of the said agreement  which reads:

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         "Each  party may terminate the tenancy at the  end           of  any  English Calendar month by giving  to  the           other party one month’s notice in writing". the appellant has, after the expiry of the period stipulated in  the  notice  dated  25.7.1969,  become  an  unauthorised occupant, and is liable to be evicted in terms of clause (b) of sub-section (1) of section 105B of the Act.      According to Mr. Bhasme, the agreement under which  the appellant occupied the premises has expired or has been duly determined  by  order of the  competent  authority.  Further continuance  by the appellant is an unauthorised  occupation so as to attract the provisions of section 105B. Apart  from the  grounds mentioned in sub-clauses (i), (ii),  (iii)  and (iv)  of clause (a) of sub-section (1) of section 105B,  the Corporation  is  also  empowered under clause  (b)  of  sub- section  (1)  of  that section to evict  any  person  whose authority to occupy has expired or has been duly  determined and  who thereafter remains in occupation of  the  premises. The authority to occupy, he says, is duly determined even if the  determination is sought to be founded on the ground  of sub-letting contrary to the terms and                                                        839 conditions  of occupation, or on any other ground  specified in  clause  (a) or clause (c) of sub-section (1)  105B,  and that  ground is subsequently held to be not proved  and  the order of eviction on that ground is accordingly found to  be invalid.  This invalidity, according to counsel, is only  as far  as it related to the alleged ground.  Nevertheless,  he says,   such  order  determining  authority  to  occupy   is sufficiently   efficacious   to  make   further   occupation ’unauthorised’,  so as to attract clause (b) of  sub-section (1),  provided the determination of authority can  otherwise be  justified  in terms of the agreement of  occupation.  In such circumstances,  he says, clause (b) of sub-section  (1) is a potent weapon in the hands of the Corporation.      We shall now  examine the relevant provisions.  Section 105A to section 105H of chapter VA were inserted in the  Act in  1961 so as to provide for speedy eviction of persons  in ’unauthorised  occupation of Corporation  premises.  Section 105A (d) defines ’unauthorised occupation’  in the following words:           "(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." The definition shows that occupation of Corporation premises without  authority  for such occupation is  an  unauthorised occupation.   Such   occupation  includes   continuance   in occupation  by a person after the authority under  which  he occupied  the  premises has "expired" or it has  been  "duly determined".  The  definition  thus  includes  not  only   a trespasser whose initial and continued occupation has  never been  under  any valid authority,  but it also  includes  in equal measure a person whose  occupation at its commencement was  under authority, but such authority has since  expired, or,   has   been  duly   determined--Which   means   validly determined.  The  expiry of authority to  occupy  occurs  by reason  of  the terms or conditions of  occupation.  On  the other  hand, the determination of authority to occupy to  be due  or  valid   must  be founded  on  one  of  the  grounds specified  by  the  statute. Any order of  eviction  on  the

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ground  of either "expiry" or "due determination" has to  be made  in  accordance with the procedure  prescribed  by  the statute.                                                        840 Section 105B, in so far as it is material, reads:           "S. 105B (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   Municipal           Corporation (Amendment) Act, 1960,               (i)  not  paid for a period of more  than  two          months, the rent or taxes lawfully due from him  in          respect of such premises; or                    (ii)  sub-let, contrary to the  terms  or          conditions of his occupation, the whole or any part          of such premises; or               (iii)  committed, or is committing, such  acts          of  waste as are likely to diminish materially  the          value, or impair substantially the utility, of  the          premises; or          (iv) otherwise acted in contravention of any of the          terms,  expreses  or  implied, under  which  he  is          authorised to occupy such premises;                (b)   that  any  person  is   in   authorised           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 sub-section (1) is  made          against                                                        841          any  person, the Commissioner shall issue,  in  the          manner  hereinafter  provided,  notice  in  writing          calling  upon all persons concerned to  show  cause          why an order of eviction should not be made.          The notice shall,               (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.           .....................          (3)  If any person refuses or fails to comply  with          an   order   made  under   sub-section   (1),   the          Commissioner  may evict that person and  any  other          person who obstructs him and take possession of the          premises; and may for that  purpose use such  force          as may be necessary."                                          (emphasis supplied)      Clause (a) of sub-section (1) of this section  contains various grounds upon which a person is liable to be evicted. Clause  (b)  says that unauthorised occupation itself  is  a

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ground for eviction. Clause (c) provides that requirement in the  public interest is a ground for  eviction.  Sub-section (2) speaks of show cause notice before an order of  eviction by notice is made under sub-section (1). Sub-section (3) has conferred sufficient power on the Commissioner to enforce an order of eviction made by him under sub-section (1). For the purpose   of   holding  an  enquiry  under  the   Act,   the commissioner   is  invested with all the powers of  a  Civil Court (section 105E). An appeal lies from every order of the Commissioner  under  section  105B or section  105C  to  the appellate  officer, namely, the Principal Judge of the  City Civil Court of Bombay (section 105F), whose orders are final and  not  liable to be "called in question in  any  original suit, application or execution proceeding" (section 105G).      The  satisfaction  of the Commissioner,  which  is  the condition precedent to the exercise of power of eviction  by the summary procedure                                                        842 prescribed  by  the  Act, may be in respect of  any  of  the circumstances falling under clauses (a), (b) or (c) of  sub- section  (1)  of  section  105B.  Clause  (a)   contemplates eviction  of any person on any one of the grounds  mentioned in  sub-clauses  (i) to (iv) thereof. These  grounds  relate only  to  a person in authorised occupation  of  Corporation 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 applied  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,  hospitals, colleges, markets, destitute-homes and the like will  indeed qualify  for invoking the Commissioner’s 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 is  to  a  person whose  occupation has ceased to be an authorised  occupation by  reason  of expiry of authority in terms thereof  or  due determination of authority under clause (a) or clause (c) of sub-section  (1) of section 105B.      If  a person is in occupation without authority, as  in the case of a trespasser, or if the authority under which  a person  has been in occupation has expired in terms  thereof and he continues to remain in occupation of the premises, he will  be  liable to be evicted on the  ground  mentioned  in clause  (b)  of  sub-section (1) of  section  105B,  but  in accordance with the procedure laid down in that section  and on  the  satisfaction of the Commissioner, expressed  by  an order,  as  to  the lack or expiry  of  authority.  It  must however,  be  remembered  that,  except in  the  case  of  a trespasser  or a person remaining in occupation  even  after the  expiry  of the period of authority, clause (b)  can  be invoked only where the Commissioner is satisfied and has  so found  be an order that any one of the grounds falling under clause   (a)   or  clause  (c)  of   sub-section   (i)   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

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do not accept Mr. Bhasme’s argument to the contrary on  this point.      It  is  not  the  case  of  the  Corporation  that  the authority under                                                        843 which  the appellant has been in occupation has  expired  in terms thereof. That was not the basis upon which the enquiry was  conducted and the order of eviction was made.  If  that was  the  ground and that ground was  rightly  invoked,  the position  might well be different. The specific ground  upon which  eviction  was  sought, as seen in the  order  of  the enquiry  officer  and  as categorically found  by  the  High Court,   was  one of sub-letting contrary to  the  terms  or conditions of occupation. No other ground, as the High Court says,   was   relied  upon  by  the  Corporation.   In   the circumstances,  the Commissioner (or his delegate)  must  be understood  to have restricted the scope of the  enquiry  to the ground falling under clause (a) (ii) of sub-section  (1) of  section  105B for the purpose of  invoking  the  summary power of eviction vested in him under the statute.      Sub-letting as such, without more, is not a ground  for eviction  under clause (a) (ii). What attracts  eviction  in terms of that provision is sub-letting which is contrary  to the terms or conditions or occupation. The appellate officer has found that the occupation of the premises by the  second respondent  under  the  appellant  was  well-known  to   the Corporation;    the   terms    and   conditions   of    that occupation  were  closely  scrutinised  by  the  Corporation before recognising the transfer of rights and interest  from the  previous principal occupant to the appellant;  and,  it was  on  that  basis  and  with  that  knowledge  that   the Corporation authorised the occupation of the premises by the appellant in terms of the agreement dated 17.6.1967.      In  such  circumstances, whatever right  of  occupation which the second respondent enjoyed under the appellant must be  deemed  to  have been incorporated  as  a  term  of  the authority  granted  by  the Corporation  in  favour  of  the appellant.  The  appellate officer has  categorically  found that  there was no evidence whatsoever to indicate that  the circumstances in which the premises had been occupied by the second respondent had in any manner, or at any time, altered so  as  to affect the terms or conditions  under  which  the appellant  was  recognised as the  principal  occupant.  The Corporation is, accordingly on the facts found, stopped from having recourse to the ground falling under clause (a)  (ii) of  sub-section (1) of section 105B. As stated by  the  High Court,  this  was  the only ground  on  which  eviction  was sought, and that ground, as found by the appellate  officer, has not been established.      In  proceedings under Article 227 of the  Constitution, the   High  Court  was  not,  in  our  view,  justified   in interfering with the finding of                                                        844 fact  rendered  against  the Corporation  by  the  appellate officer. Accordingly, we set aside the impugned judgement of the  High  Court  and restore the  order  of  the  appellate officer.      This  appeal  is  allowed in terms of  what  is  stated above.  The  parties shall, however, bear  their  respective costs. N.V.K.                                             Appeal allowed.                                                        845

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