Case Note & Summary
The judgment concerns two writ petitions filed under Article 226 of the Constitution of India by licensees of dry fish stalls in Chhatrapati Shivaji Maharaj Market, Mumbai, challenging eviction orders passed by the Assistant Commissioner (Markets) of the Municipal Corporation of Greater Mumbai. The petitioner in Writ Petition No. 5989 of 2002 claimed through one Mohammed Afzal, who was allotted stall No.5, and alleged that a naukarnama was executed in his favor and that the Corporation accepted him as a licensee by collecting rent. The petitioners in Writ Petition No. 5990 of 2002 claimed to be licensees of stall No.4. The Corporation issued show cause notices for arrears of rent, and after some payments, ex parte orders were passed on 9th July, 2002 and 1st August, 2002 directing the petitioners to vacate. The petitioners filed appeals before the Principal Judge, City Civil Court, Mumbai, which were dismissed on 22nd August, 2002 on the ground that the orders were not passed under Section 105B of the Bombay Municipal Corporation Act, 1888, and hence not appealable. The High Court, after hearing counsel for both sides, found that the orders of eviction were not under Section 105B but under the general powers of the Corporation to evict licensees. Consequently, the appeals were not maintainable. The court dismissed both writ petitions, upholding the orders of the Principal Judge and the Assistant Commissioner.
Headnote
A) Municipal Law - Eviction of Licensee - Appealability under Section 105B - The core issue was whether the eviction orders passed by the Assistant Commissioner (Markets) were under Section 105B of the Bombay Municipal Corporation Act, 1888, making them appealable. The court held that the orders were not passed under Section 105B but under the general powers of the Corporation to evict licensees, and therefore the appeals before the City Civil Court were not maintainable. (Paras 1-5) B) Civil Procedure - Maintainability of Appeal - Ex parte Orders - The petitioners challenged ex parte eviction orders and the dismissal of their appeals by the Principal Judge, City Civil Court. The High Court upheld the dismissal, finding that the appeals were rightly rejected as not maintainable because the impugned orders did not fall under Section 105B of the Bombay Municipal Corporation Act, 1888. (Paras 1-5)
Issue of Consideration
Whether the orders dated 9th July, 2002 and 1st August, 2002 passed by the Assistant Commissioner (Markets) directing the petitioners to vacate the premises were passed under Section 105B of the Bombay Municipal Corporation Act, 1888, and consequently whether the appeals filed before the Principal Judge, City Civil Court were maintainable.
Final Decision
Both writ petitions are dismissed. The orders of the Assistant Commissioner (Markets) dated 9th July, 2002 and 1st August, 2002 and the order of the Principal Judge, City Civil Court dated 22nd August, 2002 are upheld. No order as to costs.
Law Points
- Appealability under Section 105B of Bombay Municipal Corporation Act
- 1888
- Ex parte eviction orders
- Maintainability of appeal
- Licensee rights
- Show cause notice
- Rent arrears
