Case Note & Summary
The dispute pertains to a garden known as Priyadarshini Park developed on reclaimed land at Nepean Sea Road, Mumbai. The land, admeasuring about 65,000 sq. meters, was transferred by the State Government to the Municipal Corporation of Greater Mumbai (MCGM) for being developed as a garden, playground, and green area. By an agreement dated 5 July 1985, and subsequently another agreement dated 23 February 1987, the petitioner society was granted a license to develop and maintain the garden on the said land. The society was described as a licensee and was prohibited from using the land for any purpose other than maintaining a garden and playground, and from parting with possession. A nominal royalty of Re. 1 per annum was fixed, and the agreement contained a termination clause allowing either party to determine the licence by three months' notice. Following alleged breaches of the terms of the agreement, a show cause notice was issued to the society on 3 January 2017. After considering the reply and granting a hearing, the Deputy Municipal Commissioner passed an order on 17 April 2017 holding that there were major and wilful violations of the agreement and directing the termination of the licence and handing over of possession within three months. A notice to that effect was issued the same day. The society challenged this order and notice, as well as a demand for property tax, by filing a writ petition under Article 226 of the Constitution. The primary legal issue raised was whether the corporation could evict the society without following the due process of law as required under Section 105B of the Mumbai Municipal Corporation Act, 1888, or by filing a civil suit. The society also contended that the order was illegal because the Municipal Commissioner had earlier directed that possession be taken 'as per law', and the Deputy Municipal Commissioner, being subordinate, could not act contrary to that direction. The corporation argued that the society was a mere licensee with no right or interest in the land, that principles of natural justice had been followed, and that any dispute about the interpretation of the agreement should be referred to the Municipal Commissioner as per the arbitration clause. The respondent also submitted that writ jurisdiction should not be exercised for a contractual dispute. The judgment excerpt ends abruptly without stating the court's final decision.
Issue of Consideration
Whether the termination of licence and direction to hand over possession of the garden land without following the due process under Section 105B of the Mumbai Municipal Corporation Act, 1888 or filing a civil suit is illegal; whether the order passed by the Deputy Municipal Commissioner is invalid as being contrary to the earlier direction of the Municipal Commissioner; whether the writ petition is maintainable in view of the alternative dispute resolution clause in the agreement; and whether the demand for property tax is tenable.
Law Points
- Eviction of licensee requires due process of law under Section 105B of Mumbai Municipal Corporation Act
- 1888 or civil suit
- A licensee under public property agreement acquires no right or interest in land
- Natural justice requirements for terminating licence
- Dispute resolution clause requiring reference to Municipal Commissioner
- Writ jurisdiction under Article 226 may not be invoked for breach of licence
Case Details
2018 LawText (BOM) (05) 18
WRIT PETITION NO. 1706 OF 2017 WITH CHAMBER SUMMONS NO. 65 OF 2018
Abhay S. Oka, Riyaz I. Chagla
Shyam Mehta, Arif Doctor, Anirudh Hariani, Phiroze Mehta, Rajashree Ram, A.Y. Sakhare, J. Reis, S.S. Pakale, J. Carloz, K.H. Mastkar
Malabar Hill Citizens Forum & Anr
Municipal Corporation of Greater Mumbai & Ors.
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Nature of Litigation
Challenge under Article 226 of the Constitution to the termination of a licence to maintain a public garden and to the demand for possession of the land.
Remedy Sought
Quashing of the order dated 17 April 2017 terminating the licence, the notice demanding possession, and the demand for property tax.
Filing Reason
The respondent Corporation terminated the licence on grounds of serious breaches and directed handover of possession, which the petitioners contended was illegal and without following the due process under the Mumbai Municipal Corporation Act or filing a civil suit.
Previous Decisions
The Municipal Commissioner had earlier on 23 September 2016 passed an order directing that possession be taken 'as per law'. Subsequently, a show cause notice was issued, and after hearing, the Deputy Municipal Commissioner passed the impugned order dated 17 April 2017.
Issues
Whether eviction of the licensee society from public land can be effected without recourse to Section 105B of the Mumbai Municipal Corporation Act, 1888 or a civil suit.
Whether the order of the Deputy Municipal Commissioner is valid despite the earlier direction of the Municipal Commissioner to take possession 'as per law'.
Whether the writ petition is maintainable in view of the alternative dispute resolution clause in the agreement requiring reference to the Municipal Commissioner.
Whether the termination of licence complied with the principles of natural justice and the contractual provisions.
Submissions/Arguments
Petitioners argued that possession could only be taken by following due process under Section 105B of the Mumbai Municipal Corporation Act or by filing a civil suit, and that the Deputy Municipal Commissioner's order was invalid as it went against the earlier order of the Municipal Commissioner. They relied on HajiAli Municipal Officers Coop Housing Society Limited v. MCGM.
Respondent argued that the petitioner was a mere licensee with no right or interest in the land, natural justice was complied with, and disputes as per the agreement were referable to the Municipal Commissioner. It contended that no interference under Article 226 was warranted and the case law cited was distinguishable as it dealt with residential premises.
Judgment Excerpts
The challenge in this Petition under Article 226 of the Constitution of India is to the said order and said notice both dated 17th April 2017. There is also a challenge to the demand of property tax made by the said Corporation.
The first submission of the learned Senior Counsel appearing for the Petitioners is that the 1st Petitioner was placed in possession of the said land under both the agreements and therefore, for dispossessing the 1st Petitioner, due process of law will have to be followed.
He submitted that the 1st Petitioner being a licencee of the said Corporation cannot dispute the title of the said Corporation by contending that the said land does not vest in the said Corporation.
Procedural History
The writ petition was filed challenging the order dated 17 April 2017 and the notice. A Chamber Summons for amendment was taken out by the petitioners. On 17 April 2018, the court indicated that it would endeavour to decide the petition finally at admission stage. On 3 May 2018, the matter was taken up for final disposal at the admission stage. The court heard arguments from both sides and perused the record.
Acts & Sections
- Societies' Registration Act, 1860:
- Mumbai Municipal Corporation Act, 1888: Section 105B
- Constitution of India: Article 226
