Second Appeal No.287 of 1990

17th March, 2004

Petitioner Counsel: Mr. A. D. VYAWAHARE

Cases Cited:
Hashmatrai Hiranand Sindhi Vs. Tarachand Laxmichand Mohota, 1978 Mh.L.J. 750 [Para 5,9,12]
Vasant Narayan Pihulkar Vs. Sumanbai Laxman Mairal, 1987 Mh.L.J. 202 [Para 5,10]
Fattechand Mulidhar Shop by Proprietor Vs. Shrikrishna s/o Tejmalji, 1984 Mh.L.J. 796 [Para 6]
Foolchand Nanhelal Parwar Vs. Shabbir Hussain s/o Mulla Akbar Ali Bohra, 1998(1) Mh.L.J. 429 [Para 13]

JUDGMENT

JUDGMENT :- By invoking the jurisdiction of this Court under Section 100 of the Code of Civil Procedure, this second appeal takes an exception to the judgment and decree dated 21-8-1989 passed by the learned 7th Additional District Judge, Nagpur, in Regular Civil Appeal No.637 of 1984 whereby the appeal was allowed and the judgment and decree passed by the trial Court directing the respondent/defendant to deliver vacant possession of the suit plot by removing his temporary structure within thirty days from the date of that order and also to pay damages at the rate of Re.1/- per day since 10th March, 1983 to 23rd August, 1983 with separate enquiry to be held under Order XX Rule 12 of C.P.C. for mesne profits was set aside so for as the delivery of the possession of the suit plot and the payment of damages and enquiry into future mesne profits is concerned and consequently the appellate Court dismissed the suit to that extent.

2. Relevant facts are as under :

The appellant/plaintiff instituted a civil suit for eviction and possession of the suit plot. The suit property belongs to the trust and the plaintiff claims to be the Mutawalli and plaintiff No.2 is the Manager of Masjid Maulana Syed Hussamuddin alias Maulana Syed Mohammad Gul Saheb. The defendant was inducted as a tenant in the suit premises on the monthly rent of Rs.25/-. The monthly tenancy commences from 10th of each months and ends on the 9th day of the subsequent month as per the gregorian calendar. Since there was a lease of open plot, it was contended that the provisions of C.P. & Berar Letting of Premises and Rent Control Order, 1949 (for short Rent Control Order) are not attracted and, therefore, the notice dated 23-8-1982 was served on the defendant calling upon to him to vacate the suit plot and to deliver the possession, but in vain. Therefore, the plaintiff/trust was constrained to institute the suit for eviction.

3. The defendant combated the claim for eviction and contended that the plaintiffs being Mutawalli and Manager were not entitled to bring an action for eviction of the tenant and the suit is bad for want of necessary permission from the Charity Commissioner. It was contended that the suit plot falls within the area declared as slum area by the Government under the notification issued under the Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (for short the Slums Act) and, as such, the suit is bad for want of necessary permission of the Competent Authority as is required by Section 22 of the Slums Act.

4. The trial Court framed the issues and on appreciation of the evidence adduced by the parties negatived the defence of the defendant that the locality wherein the suit property is situated is declared as slum area under the provisions of the Slums Act and that there was a valid notification issued for that. Consequently, the trial Court granted decree for possession with damages and future enquiry into mesne profits by the order dated 20-10-1984. The defendant/tenant being aggrieved by that judgment and decree carried appeal to the District Court. The learned 7th Additional District Judge allowed the appeal and quashed the judgment and decree passed by the trial Court and dismissed the suit. However, the appellate Court directed the tenant to continue to pay the monthly rent regularly to the trust as per the agreed rent. This judgment is under challenge in this appeal.

5. Mr. Vyawahare, learned counsel, for the appellant contended that the tenant was inducted on the suit plot and it was a vacant plot in the year 1975-76. The tenant constructed some temporary shed on the said plot about 10 or 12 years back and as per the definition of the house appearing in the Rent Control Order, the suit plot was not governed by the provisions of the Rent Control Order. He contended that the amendment was introduced in the Rent Control Order in the definition of the premises by introducing Section 4-A vide notification/order dated 27-6-1989. He contended that the tenant was inducted on the open plot as a lessee sometime in the year 1975-76 much prior to the coming into force of the amended definition of the premises in the Rent Control Order and, therefore, there was no necessity to obtain the permission of the Rent Controller for issuing a quit notice in accordance with the provisions of the Rent Control Order. He contended that the suit filed by the trustee for eviction is perfectly maintainable in absence of the permission from the Rent Controller. In support of these submissions, he relied on the decisions of this court in the case of Hashmatrai Hiranand Sindhi Vs.Tarachand Laxmichand Mohota - 1978 Mh.L.J. 750 and Vasant Narayan Pihulkar Vs. Sumanbai Laxman Mairal - 1987 Mh.L.J. 202.

6. The bone of contention of Mr. Vyawahare is that the suit plot is the property owned by the trust. The notice dated 23-8-1982 for determination of the tenancy was served on the defendant on 27-8-1982 and he was called upon to deliver the possession, but in vain. He contended that the tenant did not give any reply to the said notice. He contended that the tenant admitted the ownership of the suit plot by the trust, though he denied the same in his written statement. He contended that the trial Court was perfectly justified in coming to the conclusion that the provisions of the Slums Act would not be applicable for want of declaration in accordance with the provisions of the Slums Act. He contended that even the notification was not validly issued and, therefore, the question of obtaining the previous sanction of the Competent Authority under the provisions of the Slums Act does not arise and the trial Court has rightly granted decree for possession. He contended that the approach of the appellate Court to the matter was erroneous by holding that the suit plot would be governed by the provisions of Section 22 of the Slums Act. He contended that the substantial question of law that arises in this appeal is whether section 22 of the Slums Act 1971 would alone create a bar of evicting the occupier, when there is no declaration of the area as slum under the provisions of the said Act. He contended that there is nothing in the Slums Act which expressly or by necessary implication authorises the Board or the Tribunal to determine in the event of dispute in the civil court whether a particular property falls within the area declared as slum improvement area. The question whether certain property came within the area declared as slum improvement area or slum area is not a matter which is left for the determination of the authorities under the Act. The Certificate issued by the Chief Engineer, Municipal Corporation is not a declaration as contemplated by Section 26(1) and, as such, the provisions of the Slums Act are not at all attracted for want of any evidence to show that the suit plot fell within the area notified as slum area or slum improvement under Section 22 of the Slums Act. Mr. Vyawahare, therefore, contended that the impugned judgment and decree passed by the appellate Court cannot be sustained in law and is liable to be quashed. He contended that the trial Court was perfectly justified in granting decree for possession.

In support of his submissions he relied on the decision of this Court in Fattechand Murlidhar Shop by Proprietor Vs. Shrikrishna s/o Tejmalji - 1984 Mh.L.J. 796.

7. None present for the respondent/tenant though served on merit.

8. I have carefully considered the contentions canvassed by the learned counsel for the appellant. So far as the first submission of the learned counsel regarding applicability of the provisions of Rent Control Order is concerned, it is obvious that the amendment by way of amending clause 4-A was inserted vide notification dated 27-6-1989 and the amendment would show the definition of the "premises" means -

(a) any land not being used for agricultural purposes,

(b) any building or part of a building (other than a farm building) let or given on licence (for residence or for the purpose of practising any profession or carrying on any occupation therein) and includes -

(i) the garden grounds, garages and out houses, if any, appurtenant to such building or part of a building;

(ii) any furniture supplied by the landlord for use in such building or part of a building; and

(iii) any fittings affixed to such building or part of building for the more beneficial enjoyment thereof;

but does not include a room or other accommodation in a hotel or lodging house.

9. In Hashmatrai Hiranand Sindhi - 1978 Mh.L.J. 750, cited supra, it has been observed in latter part of para 8 as under :

"There is also other evidence to prove that what was leased out to Lalchand was an open space. It is true that the Lalchand erected some structure and that thereafter he transferred his leasehold rights in the open space as well as the structure standing thereon to one Hiranand. But the construction made by Lalchand would not make any difference. Reliance was placed on the definition of the word "house", as given in clause 2(3) of the Rent Control Order. It reads as follows :

"House" means a building or a part of a building whether residential or non-residential and includes (a) garden, ground and outhouses (if any)- appurtenant to such a part of building, and (b) any furniture supplied by the landlord for use in such building or part of a building."

It was contended that what was let out to Lalchand was a building and open space and, as such, the present open space, which the subject matter of the suit, would be a 'house' as contemplated by this definition. Fallacy in this submission is two fold. In the first place, there was no building on the land when it was let out by Murarka to Lalchand. Secondly, after the three sale-deeds by auction purchaser Mahabirprasad, each of the purchasers treated himself as the owner of a specified portion. Hiranand accepted each purchaser as a landlord with respect to the portion that has been purchased. It is in this manner that he started paying rent at Rs.35 to the original plaintiffs Munnalal and Kishorilal. There is no dispute that what was purchased by Munnalal and Kishorilal was an open space. Thus, there was a sort of novation by which a separate lease was created of an open space between Munnalal and Kishorilal on one hand and Hiranand on the other. With such separate lease, Hiranand was a tenant not of any house or structure, but only of an open space. I have already stated that the Rent Control Order does not apply to leases of open lands. What is contemplated by clause 2(3) of the order is that the open space appurtenant to a house would be included in the definition of a house. That does not, however, mean that an open space without any connection with a house or building can be termed as a house. Thus, there is no case for applying the provisions of the Rent Control Order."

10. In Vasant Vs. Sumanbai - 1987 Mh.L.J. 202, cited supra, ratio has been laid down that the provisions of the Bombay Rent Act and the provisions of the Rent Control Order are entirely different. In any event the Bombay Rent Act would not automatically apply in the Vidarbha Right even if the Rent Control Order was struck down and in the event the civil suit filed by the plaintiff without permission of the Rent Controller would be still maintainable. Consequently the contentions as regards the validity of the Rent Control Order as raised could not be sustained.

11. It is not disputed that the tenant was inducted on the open plot bearing No.698/7 situated in Circle No.8/13, Namakganj Taka, Itwari Nagpur. This plot has been given on monthly rent of Rs.25/- for the purpose of storing coal-churi. There is no dispute that the monthly tenancy commences on 10th of each month and ends on the 9th of the subsequent month as per Gregorian calendar. The notice determining the tenancy was served on the tenant on 27-8-1982 and he was called upon the deliver the vacant possession.

12. The notification No.659/66 - II dated 6-2-1952 granted exemption to the houses used for residential purpose if the house is constructed on a site lying vacant on 01-01-1951 or on a site made vacant or after the date by demolition of any structure standing on the site. 'House' is defined in the Rent Control Order. The meaning of the term 'House' appearing in clause 2(3) means a building or part of a building whether residential or non-residential and includes (a) garden, ground and outhouses, if any, appurtenant to such a part of building, and (b) any furniture supplied by the landlord for use in such building or part of a building." The word 'premises' is substituted by the first amendment in the Order 1989. It would be obvious that in the present case what was leased was an open plot some time in the year 1975-76 and, therefore, the amendment introduced in the definition of 'premises' in the year 1989 cannot be made applicable to the open site and, therefore, the contention of the learned counsel for the trust that permission of Rent Controller was not necessary in accordance with the provisions of the Rent Control Order, has to be accepted and in the facts and circumstances a different view of the matter is not possible than the one taken by this Court in the case of Hashmatrai - 1978 Mh.L.J. 750, cited supra.

13. The next contention of the leaned counsel for the plaintiff/trust is that the ownership of the plot is not relevant especially when the tenant has admitted in his oral evidence about the ownership of the plot concerned. In support of this submission, he relied on the decision of this Court in the case of Foolchand Nanhelal Parwar Vs. Shabbir Hussain s/o Mulla Akbar Ali Bohra - 1998(1) Mh.L.J. 429 wherein this Court was dealing with the revision application against the order passed by the trial Court rejecting the application filed by the applicant for joining him as a tenant in the regular civil suit under Order I Rule 10 of the Civil Procedure Code as a defendant in the suit on the ground that he was the owner of the suit property and, therefore, the non-applicant was not entitled to seek vacation of non-applicant no.2 from the suit premises claiming the latter to be tenant of the former. This Court in the circumstances held that the issue of ownership was irrelevant in that suit and the order rejecting the application for being joined as party to the suit was justified. In the present case, it would reveal from the pleadings of the tenant in the written statement that he denied the ownership of the trust over the suit plot, but he however admitted the ownership in the oral evidence adduced by him. He also contended that the suit site was located within the slum area and the provisions of the Slums Act are applicable and the notification was also validly issued in that respect by the Competent Authority and without prior permission from the Competent Authority the suit is not maintainable in view of the provisions of Section 22 of the Slums Act. This contention did not weigh with the trial Court and, therefore, it negatived the same and granted decree for eviction of the tenant. The appellate court considered the evidence and held that without the permission of the Competent Authority in accordance with the provision of Section 22 of the Slums Act, the suit was not maintainable.

14. It is necessary to reproduce the relevant provisions of Section 22 of the Slums Act which reads thus :

"22(1) Notwithstanding anything contained in any other law for the time being in force, no person shall except with the previous permission in writing of the Competent Authority,-

(a) institute, after commencement of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 any suit or proceeding for obtaining any decree or order for the eviction of an occupier from any building or land in a slum area or for recovery of any arrears of rent or compensation from any such occupier, or for both; or

(b) when any decree or order is obtained in any suit or proceedings instituted before such commencement for the eviction of an occupier from any building or land in such area or for recovery of any arrears of rent or compensation from such occupier, or for both execute such decree or order; or

(c) apply to any judge or the Registrar of the Small Cause Court under Chapter VIII for the Presidency Small Cause Courts Act, 1882, in its application to State of Maharashtra, or to any Court of Small Causes under Chapter IV-A of the Provincial Small Cause Courts Act, 1887, in its application to the State of Maharashtra, for a distress warrant for arrears of rent against any occupier of a house or premises in a slum area."

15. Section 2(e) of the Slums Act defines 'occupier' and contemplates that "any person who for the time being is paying or liable to pay to the owner the rent or any portion of the rent of the land or building in respect of which such rent is paid or payable.

16. The provisions of Section 26 of the Maharashtra Slum Improvement Act, 1973 reads thus :

"26(1). Where the Board upon report of any of its officers or other information in its possession is satisfied that any area is or may be a source of danger to the health, safety or convenience of the public of that area or of its neighborhood by reason of the area having inadequate or no basic amenities or being insanitary, squalid, overcrowded or otherwise, it shall cause such area to be defined in a map and then it shall by any order published in the Official Gazette declare such area to be a slum improvement area. A copy of such declaration shall be displayed in conspicuous places in such area.

(2) Any person aggrieved by a declaration made under sub-section (1) may, within thirty days of the date of such declaration in the Official Gazette, appeal to the Tribunal.

(3) On an appeal, the Tribunal may make an order either confirming, modifying or rescinding the declaration; and the decision of the Tribunal shall be final."

17. Simple reading of the aforesaid provisions of law would reveal that declaration has to be made in accordance with the provisions of Section 26(1) of the Slum Improvement Act, 1973 and if such a declaration is made then the proceedings cannot be instituted in the Court for eviction of the tenant without the permission of the Competent Authority as is required under Section 22(1) of the Slums Act, 1971.

18. In the present case, the appellate Court has considered the evidence on record and observed in para 18 as under :

"However, the last ground urged before me by Shri. Paunikar for the appellant seems to be based on solid foundations. According to him, the suit plot is situated in Kumbharpura, Itwari Ward No.33, Nagpur, which is declared as slum area. The appellant/tenant Kazi Shahabuddin is examined himself, vide Exh.42-A in support of his case. He stated on oath in his evidence in para 1 of his evidence that the suit plot is situated under the slum area in the locality, which is known as Itwari Kumbharpura, Ward No.33, Nagpur. This oral (evidence) is consistent with his pleading and the same is further corroborated by his witness D.W.2 Babulal, who is an officer of Slum Improvement Trust, Nagpur. This Babulal also reiterated the very fact that Kumbharpura, Ward No.33, Itwari is declared as slum area by the Maharashtra Area and Development Authority. The learned lower Court has rejected this part of the evidence of the appellant and his witness mainly for want of any gazette notification or any other documents on record. But in this context, it may be noted that the oral evidence of the appellant and his witness have not been challenged by the plaintiff/landlord during their cross-examination. The evidence of these two witnesses given on oath thus have gone unchallenged. Appellant also produced a copy of Gazette dt.29th November, 1979 issued by the Government of Maharashtra, before me. This Gazette clearly shows that area of Kumbharpura, Ward No.33, Itwari, Nagpur is declared to be the slum improvement area. It would, therefore, follow that the suit plot, which according to the appellant's evidence, falls within the slum area and as such same would be governed by the Provisions of Maharashtra Slum Area (Improvement, Clearance and Redevelopment) Act, 1971."

19. On close scrutiny of the facts and circumstances of the present case, it would reveal that the plaintiff/trust has specifically pleaded that the tenant was inducted on the suit plot which is bearing No.698/7 situated in Circle No.8/13, Namak Ganj Taka, Itwari, Nagpur. It would reveal that the ownership of the plaintiff/trust over the suit plot is disputed by the tenant in his written statement. The tenant though has admitted in his deposition that the plaintiff is the owner of this property as he has been inducted as a tenant by the Trust and he has also constructed a temporary shed on the said plot some 10 or 12 years before institution of the suit, that does not mean that the plaintiff/Trust has become the owner of this suit plot No.698/7 automatically. Reliance is placed by the plaintiff/trust on the extract of Schedule I (Vide Rule 5) of the Register of Public Trusts maintained at the Public Trusts registration office as per the provisions of the Bombay Public Trusts Act, 1950. This extract does not show that the suit plot No.698/7 is the property of the trust.

20. In the circumstances, the contention of the learned counsel for the appellant/trust that the provisions of Section 22 of the Slums Act, 1971 are not applicable to the suit plot cannot be accepted for the simple reason that the evidence of the two witnesses showed that the suit plot is situated in the slum area which is situated in Kumbharpura, Ward No.33, Itwari, Nagpur. The evidence of those two witnesses has been corroborated by the contents of the Govt. Gazette dated 29-11-1979 issued by the Govt. of Maharashtra, which is a public record and would be admissible in evidence. The Gazette dated 29-11-1979 issued by the Govt. of Maharashtra clearly indicates that the area of Kumbharpura, Ward No.33, Itwari, Nagpur is declared to be slum area. In such circumstances, there is no reason for this Court to take a different view of the matter when the appellate Court has recorded the finding of fact so far as the situation and declaration of the plot is concerned. The situation that emerges is that the suit premises falls within the notified slums improvement area as is rightly held by the appellate court and thus the decree for eviction and possession passed by the trial Court is not sustainable in law in absence of permission from the competent authority, as is required under Section 22 of the Slums Act. In the view of the matter, the authorities on which reliance is placed by the learned counsel for the plaintiff/trust would not be of any avail to him and consequently this Court is of the considered opinion that the appellate Court was perfectly justified in setting aside the judgment and decree passed by the trial Court. In the result, there is no error or illegality in the impugned judgment and decree passed by the appellate Court. Therefore, the appeal is dismissed with no order as to costs.

Appeal dismissed.