KUMUD W/O MAHADEORAO SALUNKE versus SHRI PANDURANG NARAYAN GANDHEWAR THROUGH LRS. & ORS. on 10 May 2019

[2019] 7 S.C.R. 941

KUMUD W/O MAHADEORAO SALUNKE

v.

SHRI PANDURANG NARAYAN GANDHEWAR THROUGH

LRS. & ORS.

(Civil Appeal No. 4873 of 2019)

MAY 10, 2019

[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]

C.P. and Berar Letting of Houses and Rent Control Order,1949 – Maharashtra Slum Areas (Improvement, Clearance and Re-development) Act, 1971 – s.22 – Transfer of Property Act, 1882 –s.108 – Appellant-landlord sought permission to evict the respondent– Slum Authority granted the permission – Appeal preferred by therespondent, was dismissed by the Appellate Authority – Aftersecuring permission from the slum Authority, a civil suit was filedby the appellant seeking eviction of the respondent – Suit wasdismissed by the trial court – However, regular civil appeal wasallowed by the Appellate Court – Decree passed by the AppellateCourt attained finality – In the meantime, respondent filed writpetition challenging the permission granted by the Slum Authorityas confirmed by the Appellate Authority – Writ petition was allowedby the High Court – On appeal, held: The Slum Authority grantedthe permission to evict the respondent – In appeal, matter wasdismissed by the Appellate Authority – Thereafter, civil suit seekingeviction also attained finality – In the circumstances, there was noreason for the High Court to interfere in its jurisdiction u/Art.227of the Constitution as the respondent had opportunity at every stageto present his case and whether the requirements of s.22(4) of theAct, 1971 stood satisfied or not was a matter which was dealt withby the Appellate Authority in sufficient detail – Thus, judgment andorder of the Appellate Authority restored – Maharashtra RentControl Act, 1989.

Allowing the appeal, the Court

HELD: 1. In Vidarbha part of the State of Maharashtra,before the enactment of Maharashtra Rent Control Act, 1989,there had to be two rounds of litigation to seek eviction of a tenant.

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AThe first round had to be before the Rent Controller seekingpermission to issue a quit notice under Section 108 of the Transferof Property Act, 1882. If such permission was granted, then onlythe landlord could issue a notice of termination of tenancy andfile a civil suit seeking eviction of a tenant. In the present casethe first round before the Rent Controller was gone into. BonaBfide need as a ground for eviction may, in a given case, have anadditional facet of comparative hardship and whether the tenanthas any alternative accommodation or not. In any case, the matterhad attained finality. The permission was granted by the RentController and the civil suit was filed only thereafter in which anCobjection was taken that the premises being governed by theprovisions of the Act, the requisite permission of the SlumAuthority was mandatory. [Para 8] [945-C-F]

2. In the proceedings so initiated the Slum Authority grantedthat permission. The matter was carried in appeal and the issueDwhether the requirements under Section 22(4) of the MaharashtraSlum Areas (Improvement, Clearance and Re-development) Act,1971 stood satisfied or not was also considered by the AppellateAuthority. It must also be noted that the Civil Suit seekingeviction also attained finality. [Para 9] [945-F-G]

E3. In the circumstances, the view that weighed with theHigh Court was not correct. The respondent had opportunity atevery stage to present his case and whether the requirements ofSection 22(4) of the Act, 1971 stood satisfied or not was a matterwhich was dealt with by the Appellate Authority in sufficient detail.In the circumstances there was no reason for the High Court toFinterfere in its jurisdiction under Article 227 of the Constitutionof India.[Para 10] [945-G-H; 946-A]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4873of 2019.GFrom the Judgment and Order dated 19.06.2014 of the High Courtof Judicature at Bombay, Nagpur Bench, Nagpur in Writ PetitionNo. 2199 of 2003.

Dr. A. Rajeev B. Masodkar, Ms. Anuradha Mutatkar, Advs. forthe Appellant.

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Kishor Lambat, M/S. Lambat And Associates, Advs. for theRespondents.

The Judgment of the Court was delivered by UDAY UMESH LALIT, J. 1. Leave granted.

2. This appeal arises out of Judgment and Order dated 19.06.2014passed by the High Court of Judicature at Bombay, Nagpur Bench, Nagpurin Writ Petition No.2199 of 2003.

3. The appellant, landlord of the premises in question soughtpermission of the Rent Controller under the provisions of C.P. and BerarLetting of Houses and Rent Control Order, 1949 seeking eviction of therespondent on the grounds that he bona fide required the premises andthat the respondent was habitual defaulter in paying rent to the appellant.After the Rent controller granted the permission, the appellant terminatedthe tenancy by issuing notice under Section 108 of the Transfer of PropertyAct, 1882. Thereafter, he filed Civil Suit No.334 of 1996 seeking evictionof the respondent. However, an objection was taken by the respondentthat the premises were governed by the Maharashtra Slum Areas(Improvement, clearance and Re-development) Act, 1971 (hereinafterreferred to as, ‘the Act’) and as such the requisite permission of theSlum Authority under Section 22 had to be obtained. The suit was thereforewithdrawn by the appellant, and application was preferred by him beforethe Slum Authority seeking required permission.

4. The Slum Authority vide its order dated 28.11.2000 granted thepermission. In an appeal arising therefrom, an order of remand waspassed by the Appellate Authority. The matter was gone into by theSlum Authority afresh and by its order dated 30.05.2002 the permissionwas granted to the appellant to file the suit for eviction. The appealpreferred by the respondent challenging the order passed by the SlumAuthority was dismissed by the Appellate Authority on 31.10.2002 aftergiving opportunity to the parties and after scrutinising the material onrecord. While considering the submission made on behalf of therespondent as regards alternative accommodation, it was observed bythe Appellate Authority as under:

“5-4. U/s 22 (4) of Maharashtra Slum (Improvement & Re-development Act, 1971 the competent authority should have seenthat whether the alternative accommodation is available to theoccupied within his means it does not mean that the competent A

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Authority should search the accommodation. The wife of appellantas in service in mentioned in para 15 of written notes of arguments.Under the circumstances whether alternative accommodation isavailable and can be made available, the burden of proof lies withthe appellant. However, the appellant failed to prove the sameand hence there is no substance in the point.

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6. On the basis of above discussion and verifying the record oflower court and provisions of Maharashtra Slum (Improvement& Re-development) Act, 1971, therefore I come to the conclusionthat no substantial proof is presented by the appellant to interferewith the finding of lower court & hence I pass the following order.

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ORDER

The appeal is rejected and the order passed by lower court dt.30[th]May, 2002 is confirmed.”

5. Having secured the permission from the Slum Authority, CivilDSuit No.113 of 2003 was filed by the appellant seeking decree of evictionof the respondent. The suit was however dismissed by the Trial Courton 27.09.2007. Regular Civil Appeal No.444 of 2007 arising therefromwas allowed by the Appellate Court and by its judgment and order dated17.08.2010 it passed decree for eviction of the respondent and also passedEorder as regards payment of arrears. It is undisputed that the decreepassed by the Appellate Court was not challenged in any manner andhas attained finality.

6. In the meantime, Writ Petition No.2199 of 2003 was filed bythe respondent challenging the permission granted by the Slum Authorityas confirmed by the Appellate Authority vide its order dated 31.10.2002.FThis Writ Petition was allowed by the High Court by its judgment andorder dated 19.06.2014. It was observed that the Slum Authority hadnot considered the relevant factors enumerated in Clauses (a) to (c) ofSection 22(4) of the Slum Act, 1971 and consideration of those factorsby the Appellate Authority would not legalize the absence of suchGconsideration by the competent authority. It was observed as under:- “7. In the present case, it is undisputed that he competent authorityhas not applied its mind and has not taken into consideration therelevant factors enumerated in clause (a) to (c) of section 22(4)of the Slum Act, 1971. The consideration of these factors by the H

appellate authority does not legalize the order passed by thecompetent authority. It is settled law that if anything has to bedone according to the provisions of law, then it should be done inthat manner only. The competent authority has passed the crypticorder. The appellate order cannot substitute its reasoning to legalizethe order passed by the fact-finding authority.”

With this view, the writ petition was allowed and the matter wasagain remitted to the authority for inquiry.

7. We heard Dr. A. Rajeev B. Masodkar, learned Advocate insupport of the appeal and Mr. Kishor Lambat, learned Advocate for therespondents.

8. In Vidarbha part of the State of Maharashtra, before theenactment of Maharashtra Rent Control Act, 1989, there had to be tworounds of litigation to seek eviction of a tenant. The first round had to bebefore the Rent Controller seeking permission to issue a quit notice underSection 108 of the Transfer of Property Act. If such permission wasgranted, then only the landlord could issue a notice of termination oftenancy and file a civil suit seeking eviction of a tenant. In the presentcase the first round before the Rent Controller was gone into. Bonafide need as a ground for eviction may, in a given case, have an additionalfacet of comparative hardship and whether the tenant has any alternativeaccommodation or not. In any case, the matter had attained finality.The permission was granted by the Rent Controller and the civil suitwas filed only thereafter in which an objection was taken that thepremises being governed by the provisions of the Act, the requisitepermission of the Slum Authority was mandatory.

9. In the proceedings so initiated the Slum Authority granted thatpermission. The matter was carried in appeal and the issue whether therequirements under Section 22(4) of the Act stood satisfied or not wasalso considered by the Appellate Authority.

It must also be noted that the Civil Suit seeking eviction alsoattained finality.

10. In the circumstances, the view that weighed with the HighCourt was not correct. The respondent had opportunity at every stageto present his case and whether the requirements of Section 22(4) of theAct stood satisfied or not was a matter which was dealt with by the A

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AAppellate Authority in sufficient detail. In the circumstances there wasno reason for the High Court to interfere in its jurisdiction under Article227 of the Constitution of India.

11. We, therefore, allow this appeal, set aside the judgment andorder dated 19.06.2014 passed by the High Court in Writ Petition No.2199Bof 2003 and restore the order dated 31.10.2002 passed by the AppellateAuthority.

12. This appeal stands allowed. No order as to costs.

Ankit GyanC

Appeal allowed.

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