Bombay High Court
Park Khadya Padarth Vikrete Kalyankari … vs Solapur Municipal Corporation Thr. Its … on 30 April, 2025
Author: Amit Borkar
Bench: Amit Borkar
2025:BHC-AS:19704
911-wp-15198-2023 final.doc
Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.15198 OF 2023
Digitally
signed by
SHABNOOR
SHABNOOR AYUB
PATHAN
AYUB
PATHAN Date:
2025.04.30
17:32:01
WITH
+0530
WRIT PETITION NO.15248 OF 2023
WITH
WRIT PETITION NO.15242 OF 2023
WITH
WRIT PETITION NO.15205 OF 2023
WITH
WRIT PETITION NO.15235 OF 2023
WITH
WRIT PETITION NO.15212 OF 2023
WITH
WRIT PETITION NO.15206 OF 2023
WITH
WRIT PETITION NO.15204 OF 2023
WITH
WRIT PETITION NO.15233 OF 2023
WITH
WRIT PETITION NO.15247 OF 2023
WITH
WRIT PETITION NO.15246 OF 2023
WITH
WRIT PETITION NO.15249 OF 2023
WITH
WRIT PETITION NO.15211 OF 2023
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WITH
WRIT PETITION NO.15245 OF 2023
WITH
WRIT PETITION NO.15244 OF 2023
WITH
WRIT PETITION NO.15243 OF 2023
WITH
WRIT PETITION NO.15236 OF 2023
WITH
WRIT PETITION NO.15213 OF 2023
Park Khadya Padarth Vikrete
Kalyankari Sanstha
Through its President & Anr. ... Petitioners
V/s.
Solapur Municipal Corporation Through
Its Commissioner & Anr. ... Respondents
Mr. R. A. Thorat, Sr. Advocate a/w Ms. Pratibha Shelke
with Hrishikesh S. Shinde, Rahul Rote, and Akash
Nikam for petitioners.
Mr. Vishwanath Patil a/w Ms. Nidhi Chauhan a/w
Akshay Naidu a/w Mr. Kedar Nhavkar for respondent -
Corporation.
CORAM : AMIT BORKAR, J.
DATED : APRIL 30, 2025
ORAL JUDGMENT.:
1. Since a common question of law and fact arises in all these
writ petitions, they are being disposed of together by this common
judgment, in the interest of avoiding multiplicity of proceedings
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and for the sake of convenience.
2. The factual background leading to the filing of these
petitions can be stated briefly as follows: These petitions are
directed against a common order passed by the learned Principal
District Judge, Solapur, whereby the petitioners’ appeals filed
under Section 81F of the Maharashtra Municipal Corporation Act,
1949 (hereinafter referred to as “the said Act”) came to be
dismissed. By the said order, the learned District Judge confirmed
the eviction notice issued against the petitioners by the Municipal
Corporation on the ground that their continued occupation of the
subject premises is unauthorised, within the meaning of Section
81B(1)(a)(i)(c) of the said Act. The petitioners were called upon
to vacate the premises within one month from the date of receipt
of notice on the ground that they had failed to pay or deposit rent
for the period commencing from 1st December 1999 to 31st March
2022.
3. It is further the case of the Municipal Corporation that the
land in question is urgently required for the development of
parking facilities for the Indira Gandhi Stadium, as part of a public
infrastructure project being undertaken in collaboration with the
Smart City Development Corporation. Since the petitioners failed
to comply with the notice, proceedings were initiated before the
Commissioner under Chapter VIII-A of the said Act.
4. In reply to the proceedings, the petitioners contended that
they are lawful tenants in occupation of the premises. According to
them, the Corporation had accepted rent from time to time and
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had thereby acknowledged their tenancy. It was further submitted
that the General Body of the Corporation had resolved, by a
resolution dated 27th May 2005, to grant the petitioners a lease of
the said premises for a period of 29 years and 11 months.
However, it is not in dispute that no formal lease deed or
agreement was ever executed in favour of the petitioners in
furtherance of the said resolution.
5. After considering the submissions of both sides, the learned
Commissioner, by an order dated 24th June 2022, directed the
petitioners to hand over vacant and peaceful possession of the
premises to the Corporation. The petitioners were also directed to
pay the arrears of rent due till the said date. Aggrieved by the said
order, the petitioners preferred appeals before the Principal District
Judge, Solapur under Section 81F of the said Act. The District
Judge, however, did not find merit in the petitioners’ case and
dismissed the appeals. Being dissatisfied with the said decision, the
petitioners have approached this Court by filing the present writ
petitions under Article 226 of the Constitution of India.
6. Mr. Thorat, learned senior Advocate appearing for the
petitioners, submitted that the petitioners were never in unlawful
possession of the municipal property. He pointed out that the
General Body of the respondent-Municipal Corporation had passed
a resolution on 27th May 2005, whereby it was decided to allot the
premises to the petitioners on lease for a period of 29 years and 11
months. Though it is true that no formal lease agreement came to
be executed thereafter, the petitioners continued in possession and
were regularly paying rent to the Corporation. According to him,
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the fact that the Corporation accepted rent from the petitioners for
a long period of nearly 20 years clearly indicates that their
possession was recognised and lawful. He contended that, in such
circumstances, the occupation of the petitioners cannot be treated
as ‘unauthorised’ within the meaning of Section 81B(1)(a)(i)(c) of
the said Act. He further argued that the concept of “unauthorised
occupation” under the said provision presupposes a lack of
authority from the Corporation, which is not the case here, as the
Corporation had consciously accepted rent over two decades and
had acted upon its own resolution.
7. On the other hand, the learned Advocate for the respondent-
Municipal Corporation opposed the petition and submitted that
mere passing of a resolution by the Standing Committee does not
create any binding lease or tenancy rights in favour of the
petitioners. He pointed out that although the resolution dated 27th
May 2005 contemplated granting a lease to the petitioners, the
Corporation had never executed any formal contract or registered
lease deed as required under the provisions of the Maharashtra
Municipal Corporation Act, 1949. He emphasized that municipal
properties are public assets and their transfer or disposal must
strictly comply with the procedure prescribed under the said Act.
He submitted that unless the process contemplated under the law
–such as obtaining approval from the General Body and execution
of a formal document–is duly completed, no individual can claim
legal possession or assert rights akin to that of a tenant or lessee.
In his submission, since such procedural steps were admittedly not
completed, the petitioners’ possession remains unauthorised and
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liable to be dealt with under Section 81B of the said Act.
8. On careful perusal of the documents placed on record, it
appears that the respondent-Municipal Corporation had passed
Resolution No.751 dated 4th December 2004, whereby it was
resolved to allot the subject premises to the petitioners on lease
basis. Thereafter, on 27th May 2005, the Standing Committee
passed Resolution No.253, specifically deciding to lease the said
premises to the petitioners for a period of 29 years and 11 months.
These resolutions show that the Corporation had, in principle,
agreed to lease out the premises to the petitioners.
9. However, it is equally undisputed that despite passing of the
aforesaid resolutions, no formal lease deed or written contract
came to be executed between the Corporation and the petitioners.
The petitioners continued to remain in possession of the premises
without any registered lease agreement being executed. The
factum of payment and acceptance of rent for certain years may, at
the highest, indicate permissive possession, but such conduct alone
cannot be treated as a substitute for a valid legal contract,
especially in the context of public property.
10. At this juncture, it becomes necessary to refer to the
provisions of Section 73 of the Maharashtra Municipal
Corporations Act, 1949 (the said Act), which lays down the
procedure and restrictions regarding disposal of immovable
property belonging to the Corporation. Section 73 reads thus:
“73. Power to Commissioner to execute contracts on behalf
of Corporation.–With respect to the making of contracts6
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911-wp-15198-2023 final.docunder or for any purpose of this Act, including contracts
relating to the acquisition and disposal of immovable
property of any interest therein, the following provisions
shall have effect, namely. —
(a) every such contract shall be made on behalf of the
Corporation by the Commissioner;
(b) no such contract or any purpose which, in accordance
with any provision of this Act, the Commissioner may not
carry out without the approval or sanction of some other
municipal authority, shall be made by him until or unless
such approval or sanction has first been duly given;
[(c) no contract, other than a contract relating to the
acquisition of immovable property or any interest therein or
any right thereto, which will involve an expenditure
exceeding rupees twenty-five lakhs but not exceeding rupees
fifty lakhs shall be made by the Commissioner, unless the
same is previously approved by the Mayor. However, the
total amount of all contracts approved by the Mayor shall
not exceed rupees two crores and fifty lakhs during a year.
[Subject to the above, for any contract which involves an
expenditure in excess of the amount as specified by the State
Government, by notification in the Official Gazette, from
time to time, the previous approval of the Standing
Committee shall be necessary and different amount may be
specified in respect of different classes of Corporations]:
Provided that, notwithstanding anything contained in
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911-wp-15198-2023 final.docSchedule ‘D’, in Chapter II, in rule 3, in clause (k), where the
approval of the Standing Committee is sought by the
Commissioner for any contract, the Standing Committee
shall consider and dispose of the proposal made by the
Commissioner in that behalf within fifteen days reckoned
from the date of the meeting of the Standing Committee held
immediately after the proposal is received by it, whether the
item pertaining to such proposal is taken on the agenda of
such meeting or not, failing which the approval to such
contract shall be deemed to have been given by the Standing
Committee and a report to that effect shall be made by the
Commissioner to the Corporation.]
(d) every contract made by the Commissioner involving an
expenditure exceeding [five lakhs rupees] and not exceeding
[five lakhs rupees] or such higher amount as may for the
time being prescribed under clause (c) shall be reported by
him, within fifteen days after the same has been made, to the
Standing Committee;
(e) the foregoing provisions of this section shall, as far as
may be, apply to every contract which the Commissioner
shall have occasion to make in the execution of this Act; and
the same provisions of this section which apply to an original
contract shall be deemed to apply also to any variation or
discharge of such contract.”
11. Upon a meaningful construction of Section 73 of the
Maharashtra Municipal Corporation Act, 1949, it becomes evident
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that while the Commissioner is empowered to execute contracts on
behalf of the Corporation, such authority is not unfettered. The
execution of any contract relating to transfer, lease, or conveyance
of municipal property must be preceded by a resolution of the
Standing Committee, which serves as the foundational
administrative decision-making body under the scheme of the Act.
However, in the present case, despite the Standing Committee
having resolved to lease the subject premises in favour of the
petitioners, the admitted position is that no formal lease contract
was ever executed. The absence of a registered lease deed strikes
at the root of any claim of tenancy or leasehold rights that the
petitioners may seek to assert.
12. It is trite law that no right, title, or interest in immovable
property, especially one belonging to a public body such as a
municipal corporation, can be transferred or created in favour of a
private party without strict compliance with the statutory
mandate. Mere acceptance of rent, even if continued over years,
does not ipso facto lead to the creation of a lease, much less a
contractual tenancy, particularly where the property in question is
governed by a special statute. It is well settled that in matters
involving public property, principles of public trust doctrine and
statutory procedure must prevail over private equities.
13. Therefore, in absence of any legally binding contract
between the parties, the petitioners cannot claim a right to remain
in occupation. Their possession, in the absence of a valid lease,
stands on no better footing than that of an unauthorised occupant
within the meaning of Section 81B of the said Act. The
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Corporation, being under a statutory obligation to manage its
assets in accordance with law, was within its right to initiate
proceedings for eviction. The Principal District Judge, Solapur, in
my considered view, rightly concluded that the petitioners had no
legal basis to resist the eviction. The reasoning adopted is both
sound and sustainable in law. No infirmity can be found with the
order impugned. Accordingly, the writ petitions being devoid of
merit, stand dismissed.
14. At this stage, learned senior Advocate appearing on behalf of
the petitioners prays for stay of the judgment and order, to enable
the petitioners to take appropriate recourse in accordance with
law. It is relevant to note that this Court, by ad-interim order dated
6th December 2023, had continued the interim protection
originally granted by the learned Principal District Judge. In the
interest of justice, and to avoid any abrupt disruption, I am of the
opinion that the said interim protection deserves to be continued
for a period of twelve (12) weeks from today.
15. The continuation of interim protection shall, however, be
subject to the petitioners filing an undertaking before this Court
within one week, inter alia stating that they shall (i) deposit the
arrears of rent with the respondent-Corporation within a period of
four (4) weeks from today, and (ii) hand over vacant and peaceful
possession of the said premises to the Corporation on or before
expiry of the said 12-week period.
16. It is clarified that such deposit of arrears shall be without
prejudice to the rights and contentions of the parties regarding the
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correctness of the rent amount. The petitioners shall deposit
arrears as per the demand chart provided by the Corporation.
However, if there is any dispute regarding the quantum of arrears,
the petitioners shall be at liberty to raise the same before the
Commissioner.
17. It is further directed that the amount as per the Corporation’s
calculation shall be deposited subject to the Commissioner’s final
decision on the issue of quantum. The Commissioner shall
thereafter consider and decide any such dispute raised by the
petitioners on its own merits and in accordance with law.
(AMIT BORKAR, J.)
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