1. A short but important question that arises for consideration in this appeal is whether before ordering eviction of a allottee of the Municipal premises under sub-sec. (1) of S. 105B of the Bombay Municipal Corporation Act it is incumbent on the Municipal Commissioner to issue a notice in writing to all persons residing with the said allottee.
2. The appellants are sons and daughters of Respondent 3, who being an employee of the 1st Respondent Undertaking was allotted Flat No. N/25 from the BEST staff quarters at Parel, Bombay. Respondent 3 was made to retire from service with effect from 8th February 1983 and he was served with a show cause notice by respondent 2 calling upon him to vacate the premises allotted to him, on the ground that after his services were terminated, his occupation of the said premises became unauthorised. This notice was issued by respondent 2 as the Competent Authority to whom the General Manager of the BEST Undertaking delegated the powers conferred on him by S. 105A read with S. 105B of the Bombay Municipal Corporation Act. In furtherance to the said notice and in exercise of the powers delegated to him respondent 2 passed the order of eviction on 22nd April 1983 evicting respondent 3 along with all other persons in occupation of the said premises. Being aggrieved by this order respondent 3 preferred an appeal under S. 105F of the Bombay Municipal Corporation Act. But this appeal was disposed of with a direction that the eviction order was not to be executed till 31-10-83, respondent 3, having given a written undertaking that he would vacate the premises by that date. Thereafter respondent 3 asked for extension of time to vacate on the ground that the marriage of appellant 2 was to be celebrated on 19th November 1983. But the request was turned down and hence the appellants filed Suit No.6292 of 1983 for challenging the above referred order of eviction and restraining respondents 1 and 2 from taking possession of the premises in question in pursuance to the aforesaid order of eviction. They also took out Notice of Motion No.562 of 1983 for interim injunction for restraining respondents 1 and 2, their servants, agents, employees and officers from executing the order dated 22-4 -1983 passed in Case No. CWD/STK(SN)/23861/83 and from evicting the appellants from the suit premises. An ex parte ad interim injunction was granted as prayed. But the motion came to be dismissed on merits, the learned trial Judge holding that no notice to the appellants was necessary before passing the order of eviction against respondent 3 and hence this appeal.
3. The appeal was admitted and was posted for early hearing as prayer for interim injunction was strenuously opposed on behalf of respondents 1 and 2 and as there was no dispute about facts.
4. Shri M. P. Vashi, learned Advocate for the appellants strenuously contended that as the suit involves a question about interpretation of a statutory provision, the existence of a prima facie case is automatically established and hence the appeal should be allowed straightway and respondents 1 and 2 be restrained from executing the impugned order till the decision of the Suit. He also urged with equal emphasis that the question involved cannot be and should not be decided in an appeal against an interlocutory order. He pointed out that there is difference of opinion amongst the Judges of the City Civil Court about interpretation of the provision contained in S. 105B, which means that the issue involved is a trial issue. He also tried to impress upon me that one of the Judges of this Court has refused to interfere with the order granting temporary injuction in a similar case. It was also indicated by Shri Vashi, though indirectly, that I should stay my hands because the question involved is pending consideration of the Division Bench. In my view, however, all these objections are irrelevant and in the absence of any decision of this Court, it is open, nay, it is proper for me to decide the question, which in the absence of any dispute about facts is a pure and simple question of law.
5. It was urged by Shri Vashi, relying on a decision of Tulpule J. in Inayat Hussein Fakruddin v. Union of India, 1979 Mah LJ 514 that :-
'When a Court has to consider whether an injunction should be granted or not, it has to consider only a prima facie case which does not mean a case which will succeed but a case which is not such as is apparently barred by a provision of law and in respect of which something can be said in favour of the plaintiff.'
Shri Vashi also placed reliance on a decision, of the Kerala High Court in George V. State : AIR1972Ker181 , in which the learned single Judge expressed his respectful agreement with the following statement of law enunciated in Bishambar Nath V. Municipal Committee, AIR 1926 Lah 589:
'The rule that before the issue of a temporary injunction the Court must satisfy itself that the plaintiff has a prima facie case does not mean that the Court should examine merits of the case closely and come to a conclusion that the plaintiff has a case in which he is likely to succeed. This would amount to pre-judging the case on its merits. All that the Court has to see is that on the face of it the person applying for an injunction has a case which needs consideration and which is not bound to fail by virtue of some apparent defects. The balance of convenience has also to be looked into.'
This, however, does not mean that when there is absolutely no dispute about facts, when there is no question of leading any oral or documentary evidence and the matter rests purely on the interpretation of a statutory provision, the Court cannot and should not interpret the said provision at any interlocutory stage and should always defer consideration of the matter till final hearing of the suit. In a case where there is no dispute about facts and the matter purely rests on the interpretation of a particular provision, it is neither necessary nor proper to defer the consideration. This takes me to the controversy in question.
6. Chapter 5-A of; the Bombay Municipal Corporation Act confers powers on the Municipal Commissioner in relation to the premises of the Corporation and on the General Manager of the BEST Undertaking in relation to the premises of the Corporation which vests in it for the purpose of the said Undertaking, to evict persons from the Corporation premises. By virtue of cl. (a) of S. 105A Commissioner in relation to premises of the Corporation which vest in it for the I purpose of the BEST Undertaking means the General Manager. Clause (d) of S. 105A defines 'Unauthorised occupation in relation to any Corporation premises' as 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.'
7-8. Section 105B enumerates the circumstances in which the Commissioner or General Manger, as the case may be, can evict persons from the Corporation premises and the procedure expected to be followed for exercising that power. Sub-sec. (1) of S. 105B which enumerates the circumstances in which this power can be exercised reads as follows : -
'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) sublet, 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, 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 out 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.'
The procedure to be followed before an order under sub-sec. (1) be made is laid down in sub-sec. (2) of S. 105B, which reads as follows : -
'(2) Before an order under sub-sec. (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.
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 notice, shall be filed with the record of the case, an 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 purpose of a notice under sub-sec. (1) and thereupon, the notice shall be deemed to have been duly given to all persons concerned.'
9-10. It is an admitted position that the premises were allotted to respondent 3 as an incident of his employment and by virtue of the agreement entered into at the time of the allotment, respondent 3 was required to vacate the tenement on retirement. He was compulsorily retired on 18th February 1983. The authority under which he was allotted to occupy the premises thus stood duly determined and his continuing in occupation of the allotted premises became unauthorised within the meaning of cl (d) of, S. 105A from the date of his compulsory retirement. Respondent 3 thus became liable to be evicted under cl. (b) of sub-sec. (1) of S. 105B of the B.M.C. Act. It is an admitted position that before the order under sub-sec. (1) was passed against respondent 3, he was duly served with a notice contemplated by sub-sec. (2) of S. 105B.
11. It is contended on behalf of the appellants that they are also in occupation of the suit premises along with respondent 3 and hence it was incumbent on the General Manager of the BEST Undertaking to serve them with a notice in writing to show cause why an order of eviction should not be made before passing the impugned order and as no such notice was served, the eviction order passed against respondent 3 is not binding on them and they cannot be evicted from the premises on the basis of the notice served on respondent 3 and the eviction order passed against him in furtherance of the said notice. Shri Vashi for the appellants urged that the notice to show cause against the order of eviction contemplated by sub-sec. (2) of S. 105B is expected to be served on all persons concerned i.e. to say all persons who are or may be in occupation of or claim interest in the Corporation premises and hence it was incumbent on the General Manager of the BEST Undertaking to serve notice on all the appellants as they are in occupation of the premises along with respondent 3. According to him the provision about notice to all persons concerned is consistent with the principles of natural justice because as contemplated by sub-sec. (1) of S. 105B, the order passed under that sub-section can be directed against not only the person in unauthorised , occupation but against all other persons who may be in occupation of the whole or any part of premises.
12. The Bombay Municipal Corporation Act does not define the word 'occupation', nor does the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, which contains provisions, analogous the provisions contained in Chap. 5-A of the Bombay Municipal Corporation Act. Shri Vashi, therefore, referred to the definition given in Black's Law Dictionary (5th Edition) of the terms, 'occupier', 'occupy', 'occupant' and 'occupation', 'occupier' is defined as an 'occupant', one who is in enjoyment of a thing; 'to occupy' is defined to mean 'to take 'or enter upon possession, actual use, possession and cultivation'. 'Occupant' is defined as person in possession; person having possessory rights who can control what goes on premises; and who has actual use, possession or control of a thing'. 'Occupation' is defined to mean possession, control, tenure, use'. The act or process by which real property is possessed and enjoyed. Where a person exercises physical control over land'.
13. An analysis of these definitions will make it clear that occupation of premises contemplates possession, either actual or constructive or control over, or enjoyment of the premise's in pursuance of a right to possess or to have control or of enjoyment, real or purported. Mere residence along with the person who has or had a right to possession of the premises, as a member of his family or with his permission does not amount to possession and much less occupation. A member of allottee's family who resides in the premises along with the allottee cannot be said to be in possession or occupation of the premises in his or her own right. The possession and occupation is that of the allottee and not of the members of his family. It is not necessary that the right to possess or control or enjoy premises should be considered by, or exercisable against the true owner. The right might be created by or exercisable against a person in unauthorised occupation of the premises or whose occupation has become unauthorised. A person who claims to be occupation must be in occupation in exercise of a right and on his own behalf. A member the family residing as such with a person who is in unauthorised occupation or whose occupation has become unauthorised has no right to be in occupation either against the said person or against the true owner. Such person cannot be said to be in occupation of the premises.
14. This view of mine finds support in the two decisions on which the learned trial Judge has placed reliance. Those are Upper Ganges Sugar Mills Ltd. v. Khalil-Rehman : 1SCR564 and Mahendra Shankar Shrivastav v.. K. C. Mittal ILR (1959) All. 589 : 1959 All LJ 643.
15. In the first case their Lordships of the Supreme Court, while construing the word 'occupant' used in 5. 20(b) of the U. P. Zamindari Abolition and Land Reforms Act (I of 1951) observed that the word is not a term of art and in the absence of any definition in the said Act or in the U. P. Land Revenue Act must be given its ordinary dictionary meaning which is 'a person in occupation'. Their Lordships however proceeded to lay down the nature of occupation contemplated and observed as follows (relevant observations appear on P. 144 of the report):
'In order that a person can take the benefit of S. 20 he should have been recorded in occupation of the land in dispute in the year 1356F. The only limitation that has been placed by judicial decisions on this meaning of the word 'occupant' is that the person should be in occupation in his own right and not on behalf of someone else'.
16. In M. S. Shrivastav's case 1959 All LJ 643 (supra) the question that fell for consideration of the learned Judges of the Allahabad High Court was whether a guest or a relation residing with the allottee of a house has locus standi to challenge the order passed by the District Magistrate requisitioning the premises under S. 3 of the U.P. (Temporary) Accommodation Requisition Act, 1947 and directing the original allottee and occupant to vacate. Negativing the claim of the petitioner that he was an occupant, it was held that the person who was living as a guest of the allottee cannot be considered to be an occupant of the premises and the occupation of the petitioner was with leave and licence of the allottee.
17. Reliance was sought to be placed on behalf of the appellants on another decision of the Supreme Court in Amba Prasad v. Mohamad Ali Shah : 7SCR800 in which the same provision viz., S. 20(b) of U.P. Zamindari Abolition and Land Reforms Act, was interpreted in a different context. S. 20(b) provided inter alia that any person 'recorded as occupant' of any land in the Khasra or Khatavani of 1356F be called an adivasi of the land and shall subject to the provisions of the Act be entitled to take or retain possession thereof. The question that fell for consideration was whether a person who is recorded as 'Qabiz' but not as a tenant or sub-tenant can get advantage of S. 20. Before answering the question their Lordships considered what is meant by 'occupant' and 'recorded' and made the following observations, which are sought to be relied upon by the appellants.
'The word 'occupant' is not defined in the Act. Since. khasra records possession and enjoyment the word 'occupant' must mean a person holding the land in possession or actual enjoyment. The khasra, however, may mention the proprietor, the tenant, the sub-tenant and other person in actual possession, as the case may be. If by occupant is meant the person in actual possession it is clear that between a proprietor and a tenant the tenant, and between a tenant and a sub-tenant the latter and between him and person recorded in the remarks column as 'Dawedar Qabiz' the dawedar qabiz are the occupants. This is the only logical way to interpret the section which does away with all intermediaries.'
Their Lordships however made it clear that the section does away with intermediaries and observed as follows a little later in the same paragraph.
'The word 'occupant' thus signifies occupancy and enjoyment. Mediate possession, (except where the immediate possessor holds on behalf of the mediate possessor) is of no consequence.
This observation supports the view that 'occupation' to be basis of a right must be of a person who claims to be in possession in his own right.
18. The decision in Dr. Mohammed Ibrahim v. Syed Ahmed Khan : AIR1950Mad556 cited by the. appellants does not help them. In that case the landlord claimed possession of the tenanted premises on the ground that he was not occupying a residential building of his own in the city. He owned two houses in the city but was residing with his first wife in a rented house, whereas his second wife was residing with her parents and others in one of the two houses belonging to the landlord. The question that arose for consideration was whether the landlord was not occupying a residential building of his own. It was held that a person must be deemed to be occupying a residential building at the time of an application for eviction if any member of his family including dependants reside in the building with his permission and on his account, though physically he himself might not be residing therein. Reference was made in that case to the decision in Reg v. St. Pancras Assessment Committee (1877) 2 QBD 581, in which Lush J. pointed out that 'occupation includes possession as its primary element, but it also includes something more. Legal possession does not of itself constitute an occupation'. Reference was also made to the decision in In re Garland; Eve v. Garland 1934 Ch 620in which it was held that residence and occupation are not the same thing and a person can be the occupier of a house although he does not live in it. This decision lays down in unmistakable terms that relations, dependants servants residing in a house with the permission of the person who has a right to occupy the house, cannot be said to be in occupation of the house. The occupation is of the person with whose permission and on whose account they reside in the house.
19. The decisions of the Supreme Court in Raj Kumar Diwendar Singh v. State of Punjab : 2SCR166 and M/s. Jain Ink Mfg. Co. v. Life Insurance Corporation of India : 1SCR498 were also sought to be pressed into service on behalf of the appellants. Both these decisions are irrelevant for deciding the controversy in this appeal, though they arise out of statutes containing provisions somewhat analogous to the provisions of Chap. V-A of the B. M. C. Act. In the first case it was held that a person in possession of certain property before the date of its sale to the Government cannot be said to be in unauthorised occupation of public premises within the meaning of S. 3(a) of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act (31 of 1959). In the second case which arose out of Public Premises (Eviction of Unauthorised Occupants) Act (40 of 1971). Their Lordships distinguished the decision in Raj Kumar's case in view of the difference in the definitions in the two Acts of 'unauthorised occupation'. In the Punjab Act entry into possession at a particular time was relevant while S. 2(2)(g) of the Public Premises and Land (Eviction and Rent Recovery) Act merely required occupation of public premises. What constituted 'occupation' was not the matter of controversy in both these cases.
20. Sub-sec. (1) of S. 105B contemplated eviction of persons included in CIs. (a) to (c) of that sub-section along with all other, who may be in occupation of whole or any part of the premises and in view of sub-sec. (2) such other persons must also be served with a notice to show cause. The other person contemplated by sub-sec. (1) do not cover the relations or dependants of the persons in CIs. (a) to (e)of sub-sec. (1). The operative clause of sub-sec. (1) covers all sub-clauses of sub-sec. (1) and the general provision is made to empower the authority to pass an order operative not only against the person described in those sub-clauses but all other persons who were in 'occupation' of the premises in the legal sense of the term. In a given case a person may unauthorised encroach upon, the corporation land, construct building thereon and sell the tenements to different persons. Such persons, who occupy the tenements in their own right, though available against the person who had constructed the tenements, are such other persons in occupation of the Corporation premises and if they are sought to be evicted along with the person who constructed the tenements they must also be served with notices to show cause. It is also pertinent to note that if Corporation premises in the occupation of any person are required by the Corporation in the public interest, such person as well as any other person who may be in occupation of the whole or any part of the premises lawfully can be evicted under sub-sec. (1). Such premises might have been occupied by a person lawfully and he might have lawfully inducted sub-tenants or if the premises was land, he might have lawfully constructed tenements and sold or leased them out to different persons. All such persons can be evicted if the premises are required by the Corporation in the public interest. Such are the other 'persons concerned contemplated by sub-sec. (2) and not the relations and dependents who have to go along with the allottee of the premises.
21. The appellants are members of the family of the respondents and are admittedly residing in the said premises in that capacity. They do not claim to be in possession or occupation of the premises in their own right. No separate notice under S. 105(2) need therefore be served on them. The order of eviction passed against respondent 3 is binding on all of them.
The appeal therefore must fail. It is dismissed with costs, with a direction that status quo to Continue, till 5th November 1984.
22. Appeal dismissed.