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AMICUS AI
Citation Codes
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Case Number
Advocates
  • Mr. Uday P. Warunjikar, Advocate for the appellant.
  • Mr. R.A Thorat, Senior Advocate i/by. Mr. B.S Shukla, Advocate for respondent no. 1.
  • Mrs. M.R Bhoir, Advocate for respondent no. 2, BMC.
Judges
  • R.P Sondurbaldota, J.
Acts
  • Sections, 313, 313A and 313B of the Municipal Corporation Act
  • Section 313, 313A and 313B of Municipal Corporation Act
  • Section 313, 313A and 313B of the M.M.C Act.
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Mr. Uday P. Warunjikar, Advocate for the appellant.
  • Mr. R.A Thorat, Senior Advocate i/by. Mr. B.S Shukla, Advocate for respondent no. 1.
  • Mrs. M.R Bhoir, Advocate for respondent no. 2, BMC.
Judges
  • R.P Sondurbaldota, J.
Acts
  • Sections, 313, 313A and 313B of the Municipal Corporation Act
  • Section 313, 313A and 313B of Municipal Corporation Act
  • Section 313, 313A and 313B of the M.M.C Act.
See more information ...
Smart Summary

Structured Summary of the Opinion — R.P. Sondurbaldota, J.

Factual and Procedural Background

The present appeal challenges the judgment and decree dated 13 October 2014 of the Bombay City Civil Court in L.C. Suit No. 1579 of 2009. The trial court declared the appellant a trespasser in respect of the suit premises (described in the plaint as "Stall No. 20 admeasuring 2 mts × 1 mtr situate near TM, Dadasaheb Phalke Road, Dadar (East), Mumbai"), directed him to vacate the premises, and permanently restrained him from transferring or creating third party rights over it.

Respondent No.1 filed the suit seeking a declaration that the appellant was a trespasser, for possession of the stall, and for permanent injunction to restrain transfers. Respondent No.2, the Municipal Corporation, is the owner of the structure and had issued a license under Sections 313, 313A and 313B of the Municipal Corporation Act to the deceased husband of Respondent No.1 for running a barber business. The husband died on 19 April 2005 and the license was later transferred to Respondent No.1 as direct heir.

The appellant alleged that he had been allowed to carry on business under a conducting agreement dated 1 April 2006 (payment terms and security deposit described in the plaint), later failed to pay compensation from January 2009, received an advocate's notice on 4 July 2009 to vacate, and thereafter sought to regularize occupation by applying to the Municipal Corporation for transfer and to BEST Authority for transfer of the electric meter. Respondent No.2 rejected the appellant's transfer application pursuant to its policy (and a circular dated 29 March 2008 which followed an Apex Court order dated 12 February 2007) that hawkers' licenses are not transferable by sale and may be transferred only to direct heirs.

The appellant contested the suit claiming he had purchased the stall for Rs. 8,75,000 with several agreements and produced several documents in evidence. The trial court evaluated the evidence, held most documents relied upon by the appellant to be not proved (and in some instances false), accepted only the conducting agreement dated 1 April 2006 as credible, held that the appellant had no independent right to occupy the premises after expiry of that agreement, and decreed the suit. The present appeal challenges that decree.

Legal Issues Presented

  1. Whether the appellant had an independent right to occupy the suit premises (i.e., whether he had established a transaction of sale or other proprietary right to the stall) such that he was not a trespasser.
  2. Whether the documents produced by the appellant (various agreements and an alleged agreement of sale) were duly proved and could establish his claimed rights to the premises.
  3. Whether, even if a sale to the appellant had occurred, the Municipal Corporation's policy (pursuant to orders of the Apex Court and the Circular dated 29 March 2008) permitting transfer of the license only to direct heirs prevents regularization of the appellant's occupation by transfer of the license.
  4. Whether the appellant's contention as to jurisdiction (that the Court of Small Causes had exclusive jurisdiction) affected the maintainability of the suit in the Bombay City Civil Court.

Arguments of the Parties

Appellant's Arguments

  • The appellant asserted he had purchased the stall for Rs. 8,75,000 and therefore could not be a trespasser.
  • He relied on multiple agreements: a Leave and License dated 26 October 2005, a conducting agreement dated 11 November 2005, conducting agreements dated 20 February 2006 and 1 April 2006, and an agreement for sale dated 2 May 2006 (various exhibits were produced), asserting these established his right to occupy and/or ownership.
  • The appellant contended the relationship was of licensor-licensee and argued that the Court of Small Causes at Bombay had exclusive jurisdiction.
  • He claimed continuous business from the premises (under the name "Om Handlooms") and sent advocate's correspondence seeking transfer upon payment of balance consideration.

Respondent No.1's Arguments

  • Respondent No.1 maintained that the only agreement executed with the appellant was the conducting agreement dated 1 April 2006 and denied execution of the other agreements the appellant relied upon.
  • She asserted the appellant defaulted in payment of compensation and refused to vacate despite the expiry of the conducting agreement and subsequent notices.
  • She relied on the fact that the Municipal Corporation is the owner and that the license is not transferabble except to direct heirs.

Respondent No.2 (Municipal Corporation)'s Arguments

  • Respondent No.2 admitted issuance of license under Sections 313, 313A and 313B to the deceased husband and later to Respondent No.1 as direct heir, but contended that the license policy (per Circular dated 29 March 2008 issued pursuant to an Apex Court order dated 12 February 2007) forbids transfer by sale and allows transfer only to direct heirs.
  • It rejected the appellant's application for transfer on the ground that transfer to him could not be effected under the stated policy.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court's reasoning proceeded by focusing on evidentiary assessment and the municipal policy governing transfer of licenses:

  1. The court noted undisputed facts: the stall belonged to the Municipal Corporation; the original license had been issued to the deceased husband for a barber business and was subsequently transferred to Respondent No.1 as direct heir; and the Municipal Corporation's policy disallowed transfer by sale and permitted transfer only to direct heirs.
  2. The court emphasized that the appellant bore the entire onus of proving an independent right to occupy the premises (i.e., title or a valid agreement of sale/leave-and-license conferring an enduring right), since his claim was not as a direct heir of the license holder.
  3. On evaluating the documentary evidence, the court found that most documents proffered by the appellant were not proved or were unreliable for specific, articulated reasons:
    • Exhibit-38 (leave and license dated 26 October 2005) did not bear the signature of Respondent No.1 as a witness and lacked proof of execution; no witness was examined to corroborate execution.
    • Exhibit-39 was admitted by the appellant in cross-examination to be neither in his name nor that of the deceased husband; its provenance was not established.
    • Exhibit-40 (agreement for sale on stamp paper) was not in the names of the parties and contained an incorrect address for Respondent No.1 with no explanation; the appellant's own testimony did not corroborate proper execution (he had visited the advocate's office but not the notary's).
    • Other documents (including an alleged conducting agreement and documents prepared by Advocate Yadav) showed anomalies: stamp papers purchased in third persons' names, unsigned or undated witness signatures, and lacking corroboration; some documents were held to be false.
  4. The court accepted only the conducting agreement dated 1 April 2006 (Exhibit-23) as credible. The terms of Exhibit-23, as assessed by the court, evidenced a transaction by which Respondent No.1 permitted the appellant to conduct the business carried on in the premises (i.e., a conducting arrangement) rather than an arrangement transferring proprietary rights or granting the appellant an independent business entitlement in the premises.
  5. Because the conducting agreement expired by efflux of time, and because no independent right (sale/title/valid leave-and-license) was proved, the appellant's status on expiry was that of a trespasser. The trial court's factual findings on the credibility and sufficiency of documents were affirmed as correct.
  6. Separately, the court reasoned that even if a sale had been established, it would not assist the appellant because the Municipal Corporation's policy and orders of the Apex Court disallow transfer of the hawker's license by sale and permit transfer only to direct heirs of the license holder; therefore, the Corporation could not have regularized a transfer in favor of the appellant.

Holding and Implications

Holding: The First Appeal was dismissed and the decree of the Bombay City Civil Court (dated 13 October 2014) stands.

Implications:

  • Direct effect on the parties: The appellant remains a trespasser in respect of the suit premises as found by the trial court, and the decree requiring him to vacate and permanently restraining him from transferring or creating third party rights over the premises is upheld.
  • Court of appeal orders consequential matters: Civil Application No. 3800 of 2014 was held not to survive and was disposed of; the ad-interim order dated 13 October 2014 was continued for a period of four weeks from the date of the opinion at the appellant's request.
  • Broader legal consequence: The court relied upon the Municipal Corporation's policy (as framed pursuant to an Apex Court order) that licenses under Sections 313, 313A and 313B are not transferable by sale and may be transferred only to direct heirs; the opinion affirms that such policy prevents regularization of an alleged sale to a non-heir. The judgment does not purport to establish a new legal precedent beyond affirming the application of that policy to the facts of this case.

This summary is based exclusively on the content of the provided opinion and does not add or infer facts beyond that text.

Show full summary ...

    Praful Umarshi Thakkar v. Smt. Hamida Md. Mustakin Shaikh And Anr.

    R.P Sondurbaldota, J.:— This appeal is directed against the judgment and decree dated 13th October, 2014 by which the Bombay City Civil Court decreed L.C Suit No. 1579 of 2009 declaring the appellant as the tresspasser in respect of the suit premises and directing him to vacate the same. He is also permanently restrained from transferring or creating any third party rights over the suit premises.

    2. Respondent no. 1 filed the suit herein, inter-alia, for a declaration that, the appellant is the tresspasser in respect of the suit premises, for its possession and for permanent injunction to restrain the appellant from creating any third party rights over the same. The suit premises as described in the plaint is “Stall No. 20 admeasuring 2 mts × 1 mtr situate near TM, Dadasaheb Phalke Road, Dadar (East), Mumbai”. Respondent no. 2, Municipal Corporation is the owner of the structure. It had issued license under Sections, 313, 313A and 313B of the Municipal Corporation Act to the husband of respondent no. 1 for carrying on the business of hair cutting saloon therefrom. The husband of respondent no. 1 died on 19 April, 2005 leaving respondent no. 1 as his legal heir and representative. Later, the license in respect of the suit stall came to be transferred to the name of respondent no. 1. It was her allegation that, by the conducting agreement dated 1st April, 2006 she permitted the appellant to carry out business therefrom for a period of 11 months on payment of monthly compensation of Rs. 5,000/- and security deposit of Rs. 3,00,000/-. It was agreed between the two that, the monthly compensation would be paid by the appellant by way of deduction of Rs. 3,000/- from the security deposit every month and by payment of Rs. 2,000/- to respondent no. 1. After the agreement expired, the appellant sought time from respondent no. 1 to vacate the suit premises. He gave an assurance to respondent no. 1 that, he would pay compensation of Rs. 8,000/- per month out of which Rs. 4,000/- was to be adjusted from the deposited amount and Rs. 4,000/- to be paid every month. Thereafter, the appellant allegedly obtained signature of respondent no. 1 on some blank papers stating that, he would get fresh conducting agreement prepared. Thereafter, from January, 2009 the appellant failed to pay monthly compensation to respondent no. 1. Therefore, by the advocate's notice dated 4 July, 2009 she called upon him to vacate the premises. Instead of vacating the suit premises, the appellant attempted to get the same transferred to his name by making an application to respondent no. 2. He also made an application to BEST Authority for transfer of electric meter in his name without any intimation to respondent no. 1. Thereafter, respondent no. 1 filed the present suit.

    3. The suit was contested by respondent no. 2, Municipal Corporation admitting the fact of issuance of license in respect of the suit premises under Section 313, 313A and 313B of Municipal Corporation Act to the husband of respondent no. 1 for carrying on his activity as a Barber. Later, the license came to be transferred to the name of respondent no. 1. It contended that, in view of the Circular dated 29 March, 2008 bearing No. SS/LL/21/2007 issued pursuant to an order of the Apex court dated 12 February, 2007, a hawkers license is not transferable by way of sale. Transfer of the license is allowed only to the direct heirs of the license holder. On 27 April, 2009 the appellant had applied for transfer of the license on the ground that, he had purchased the suit premises from respondent no. 1. His application was rejected and the rejection was communicated to him by the letter dated 4 July, 2009.

    4. The appellant resisted the suit alleging that, he had purchased the suit premises for the total consideration of Rs. 8,75,000/- and as such he cannot be said to be a tresspasser in respect of the suit premises. He also contended that, the relationship between respondent no. 1 and him was that of a licensor and licensee and as such the Court of Small Causes at Bombay had exclusive jurisdiction to entertain the suit. The appellant claimed that, by the Leave and License agreement dated 26 October, 2005 and by the conducting agreement signed on 11 November, 2005, the husband of respondent no. 1 had inducted him in the suit premises by giving him vacant possession thereof for the period 20 November, 2005 to 19 October, 2006 by accepting a sum of Rs. 1,50,000/- from him. After the death of the husband, respondent no. 1 executed conducting agreement dated 20 February, 2006 after accepting an amount of Rs. 2,60,000/- towards deposit and gave credit to the amount of Rs. 1,50,000/- paid to her husband to permit the appellant to occupy the suit premises for a period of 33 months commencing from 20 October, 2005 until 19 July, 2008. The appellant also contended that, the first respondent on 2nd May, 2006 executed agreement of sale of the suit premises for the total consideration of Rs. 8,75,000/-. According to the appellant, respondent no. 1 had already received Rs. 3,00,000/- under conducting agreement dated 1 April, 2006 and he was required to pay only the balance amount of consideration to respondent no. 1. By his advocate's letter dated 30 September, 2008 the appellant called upon respondent no. 1 to transfer the suit premises in his name by accepting the balance consideration of Rs. 4,75,000/-. Respondent no. 1 failed to reply to the notice. Then, a reminder was sent on 16 March, 2009. The appellant claimed to have been carrying on business of handloom material from the premises under the name and style of “Om Handlooms” since 28 November, 2005 till 19 October, 2006 and contended that respondent no. 1 was not entitled to receive possession of the premises from him

    5. Respondent no. 1 examined herself in support of her case. Respondent no. 2 examined its License Inspector, Shri. Gosavi. The appellant examined himself and Advocate Mr. M.D Yadav. The appellant produced conducting agreement dated 1 April, 2006 between him and respondent no. 1 (Exhibit-23)/conducting agreement dated 20 February, 2006 between him and respondent no. 1 (Exhibit-26), agreement for sale dated 2 May, 2006 (Exhibit-27), Leave and License agreement dated 26 October, 2005 between him and husband of respondent no. 1 (Exhibit-38), conducting agreement dated 11 November, 2005 between him and husband of respondent no. 1 (Exhibit-39) and agreement for sale dated 2 May, 2006 (Exhibit-40).

    6. The undisputed facts of the case are that, the suit premises belong to respondent no. 2, Corporation. The husband of respondent no. 1 was issued license under Section 313, 313A and 313B in respect of the premises for the purpose of business of hair cutting saloon. He carried out that business from the premises during his lifetime. After his death, respondent no. 1 had changed the nature of the activity carried out from the premises which was objected to by respondent no. 2. Later, the license came to be transferred to respondent no. 1 as the direct heir of her husband. The license issued in respect of the premises is not transferable. The transfer can be effected only by respondent no. 2 and that too only to the direct heir of the license holder. The claim of the appellant to the premises is not as the direct heir of the license holder but as a purchaser of the premises.

    7. In the circumstances, the entire onus of proving that he has an independent right to occupy the suit premises was upon the appellant and as will be seen hereinafter, the appellant failed to discharge that onus. According to respondent no. 1, the only agreement that had been executed with the appellant was the conducting agreement dated 1 April, 2006 (Exhibit-23). She did not execute any other agreement. The appellant, on the other hand, claimed that, as many as 5 more agreements had been executed in respect of the suit premises with him, 2 agreements by the deceased husband of respondent no. 1 during his lifetime and 3 more agreements by respondent no. 1. By stating reasons in detail, the Bombay City Civil court has held that, the appellant has failed to establish execution of the remaining five agreements, the reasons therefor are stated in detail in the impugned judgment. The Bombay City Civil Court found that, the leave and license agreement dated 26 October, 2005 with the husband of respondent no. 1 (Exhibit-38) which was allegedly signed by respondent no. 1 as a witness did not bear her signature. The last date of the document carried no date of execution of the agreement. The appellant also did not examine any witness to show that, the husband of respondent no. 1 had executed the agreement and respondent no. 1 had witnessed the agreement. Thus, the document was held to be not proved. As regards the agreement at Exhibit-39, the appellant admitted in his cross-examination that, it was not in his name and also in the name of the husband of respondent no. 1. The third agreement with the husband of respondent no. 1 is Exhibit-40 which was noticed to be on stamp paper, neither in the name of the appellant nor the husband of respondent no. 1. It states incorrect address of respondent no. 1 for which no explanation is offered. The appellant deposed that, he visited the office of Advocate Mr. Mohanlal Yadav but had not gone to the office of the notary. Therefore, this document also cannot be believed. The fourth document is the conducting agreement with the husband of respondent no. 1 (Exhibit-36). The stamp paper of this document also was purchased in the name of a third person. Advocate Yadav, who claimed to have prepared this document and signed it as a witness did not put date below his signature. One of the papers was not even signed by him. Hence, this document was also not believed. The Bombay City Civil Court, has infact held that, these documents are false documents. On the above assessment of the evidence, the Bombay City Civil Court held that, the appellant has no right to occupy the suit premises and as such he is a tresspasser in respect thereof and decreed the suit.

    8. I have carefully perused the documents relied upon and produced in evidence by the appellant for establishing his right to occupy the suit premises. In my opinion, the assessment of the evidence by the Bombay City Civil Court of these documents is the correct assessment. None of the agreements relied upon by the appellant can be believed. Therefore, the only agreement between the parties that can decide their rights to the suit premises and the suit business is the conducting agreement dated 1 April, 2006 (Exhibit-23) relied upon by both the sides. The terms of the agreement clearly and expressly indicate the transaction between the parties. The transaction was of giving the business carried on in the suit premises for conducting by respondent no. 1 to the appellant. The appellant has not been able to establish that, the business carried on therein was his independent business or that the suit premises would be given to him on leave and license basis for conducting his independent business therefrom. In the circumstances, on expiry of the agreement by efflux of time, the status of the appellant was reduced to a trespasser in respect of the suit premises. Hence, there is no infirmity in the finding of the Bombay City Civil Court as regards the status of the appellant, qua the suit premises.

    9. Even if the appellant were to establish that, there was infact a transaction of sale of the suit premises by respondent no. 1 to him, the same would not have been of any avail to him. This is because of the policy adopted by respondent no. 2 in view of the orders passed by the Apex Court as regards the transferability of the licenses under Section 313, 313A and 313B of the M.M.C Act. Under the policy, transfer of a hawker's license by way of sale is not permitted and the transfer is allowed only to the direct heirs of the license holder. In the circumstances, there was no question of respondent no. 2 transferring the three licenses in favour of the appellant regularizing his occupation thereof. Hence, there is no substance whatsoever in the First Appeal and the same is dismissed.

    10. In view of dismissal of the First Appeal, Civil Application No. 3800 of 2014 does not survive. The same is accordingly disposed off.

    11. At the request of the learned Advocate appearing for the appellant, the ad-interim order dated 13 October, 2014 is continued for a period of 4 weeks from today.

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    Comments

    Praful Umarshi Thakkar v. Smt. Hamida Md. Mustakin Shaikh And Anr.
    (Jun 7, 2016)