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PETITIONER: M/S ASHOK CATERERS

       Vs.

RESPONDENT: MUNICIPAL CORPORATION OF GREATER BOMBAY (BEST UNDERTAKING)

DATE OF JUDGMENT:       19/02/1997

BENCH: K. RAMASWAMY, S. SAGHIR AHMAD

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This special  leave petition  arises from  the judgment and order  dated January  15, 1997  passed  by  the  learned Single Judge  of the  Bombay High  Court in  W.P. No.6276 of 1996.      The petitioner  had a  lease on  monthly basis  and the respondent  had   offered  it  for  five  years  though  the petitioner had not accepted the same. Subsequently, as found by the  as found  by the  courts below, the lease expired in January 1990  by afflux  of time.  However, the  tenancy was determined by  order dated  December 24,  1994.  Thereafter, summary proceedings  were initiated  under Section 105-B (1) of the  Bombay Municipal  Corporation  "Act"]  and  eviction order was  passed. The petitioner filed an appeal before the civil Court which by order dated 5th December, 1996 affirmed the eviction  order. Feeling aggrieved, the petitioner filed the writ petition which has come to be dismissed by the High Court. Thus this special leave petition.      Shri Bhimrao  Naik,  learned  senior  counsel  for  the petitioner placing  reliance on  a decision of this Court in Prakash  Warehousing   Co.  V/s.  Municipal  Corporation  of Greater Bombay  & Anr. [(1991) 2 SCC 304], contends that the respondent  has  no  power  to  unilaterally  terminate  the tenancy, after the expiry of the period of lease, unless any of the  grounds is  made out either in terms of the contract of under  the statute  for ejecting  the petitioner.  In the light of  the law  laid down in the petitioner. In the light of the  law laid  down in  the said  decision, the  eviction order is  illegal. The  petitioner, cannot  be treated as an unauthorised occupant  and the respondent could not avail of the summerty  remedy under  Section 105-B (1) of the Act. We find no  force in  the contention  of Shri  Naik. It is seen that the  renewal made  in 1985  expired in  1990. He placed before us  a copy  of the  lease. Admittedly,  it  does  not prescribe any  particular period  of lease  but it  mentions words "from month to month". In other words, it is a tenancy on monthly basis, Correspondence appears to have taken place between the  parties on  the fixation  of the  period of the lease which  ultimately did  not bear  fruit. Be  that as it may, the  question is: whether the petitioner can be treated

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as "unauthorised  occupant" within  the meaning  of  Section 105-B (1) (b) of the Act which reads as under:      "105-B (1) where the Commissioner      is satisfied -      (b)  that   any    person   is   in      unauthorised  occupation   of   any      corporation      premises:      the      Commissioner may  not  withstanding      anything contained  in any  law for      the time  being in force, by notice      9 served  by post, or by affixing a      copy of  it on  the outer  door  of      some other conspicuous part of such      premises, on  in such  other manner      as   may   be   provided   for   by      regulations), order that person, as      well as any other person who may be      in occupation  of the  whole or any      part of  the premises  shall vacate      them within  one month  of the date      of the service of the notice."      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 "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.      In Prakash  Warehousing Co. case (supra) relied upon by the learned  counsel, unfortunately,  attention of the court was not drawn to the non obstante clause in the main part of Section 105-B  (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  the   statute  envisaged thereunder. But  the non  obstante clause  contained in  the main part  of the  Section 105-B(1)  takes out the wind from the  sail   of  the  rigour  of  the  law  and  enables  the Corporation-respondent to  terminate the  tenancy  and  take back possession.  After the expiry of the lease period under the contract  or  its  determination,  the  quandrum  tenant becomes 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 public property  except either  for a  public purpose or for contravention of  the  condition  of  the  contract  or  for violation of  the statutory  provisions. The  lease,  unlike licence, creates  intrest 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 bus stand. Under those  circumstances, the  determination of  the lease

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and initiating  summary proceedings  under Section 105-B (1) of the  Act is  clearly in consonance with the provisions of the Act.  Accordingly, we  hold that  the High Court has not committed any  error of law in coming to the conclusion that the petitioner is an unauthorised occupant.      The special  leave petition  is accordingly  dismissed. Six months’  time is granted to the petitioner to vacate and hand over  possession of  the premises subject to its filing the usual undertaking within four weeks from today.