Kumud W/O Mahadeorao Slunke vs Shri Pandurang Narayan Gandhewar ...

Civil Appeal NO. ____ of 2019 @ SLP(C) No. 10469 of 2016 Kumud w/o Mahadeorao Salunke vs. Shri Pandurang Narayan Gandhewar Through Lrs. & Ors. 1

Reportable IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO._4873__ OF 2019 (Arising out of SLP(C) No.10469 of 2015)

KUMUD W/O MAHADEORAO SALUNKE …Appellant(s)

VERSUS

SHRI PANDURANG NARAYAN GANDHEWAR THROUGH LRS. & ORS. …Respondent(s)

J U D G M E N T

Uday Umesh Lalit, J.

1. Leave granted.

2. This appeal arises out of Judgment and Order dated 19.06.2014

passed by the High Court of Judicature at Bombay, Nagpur Bench,

Nagpur in Writ Petition No.2199 of 2003.

3. The appellant, landlord of the premises in question sought

permission of the Rent Controller under the provisions of C.P. and

Berar Letting of Houses and Rent Control Order, 1949 seeking

eviction of the respondent on the grounds that he bona fide Signature Not Verified

required Digitally signed by the premises and that the respondent was habitual ASHWANI KUMAR Date: 2019.05.10 17:00:20 IST

defaulter in paying rent to the appellant. After the Rent Reason:

controller granted the permission, the appellant terminated the Civil Appeal NO. ____ of 2019 @ SLP(C) No. 10469 of 2016 Kumud w/o Mahadeorao Salunke vs. Shri Pandurang Narayan Gandhewar Through Lrs. & Ors.

2 tenancy by issuing notice under Section 108 of the Transfer of

Property Act, 1982. Thereafter, he filed Civil Suit No.334 of 1996

seeking eviction of the respondent. However, an objection was

taken by the respondent that the premises were governed by the

Maharashtra Slum Areas (Improvement, clearance and Re-development)

Act, 1971 (hereinafter referred to as, ‘the Act’) and as such the

requisite permission of the Slum Authority under Section 22 had to

be obtained. The suit was therefore withdrawn by the appellant,

and application was preferred by him before the Slum Authority

seeking required permission.

4. The Slum Authority vide its order dated 28.11.2000 granted the

permission. In an appeal arising therefrom, an order of remand was

passed by the Appellate Authority. The matter was gone into by the

Slum Authority afresh and by its order dated 30.05.2002 the

permission was granted to the appellant to file the suit for

eviction. The appeal preferred by the respondent challenging the

order passed by the Slum Authority was dismissed by the Appellate

Authority on 31.10.2002 after giving opportunity to the parties and

after scrutinising the material on record. While considering the

submission made on behalf of the respondent as regards alternative

accommodation, it was observed by the Appellate Authority as under:

“5-4. U/s 22 (4) of Maharashtra Slum (Improvement & Re-development Act, 1971 the competent authority should have seen that whether the alternative accommodation is available to the occupied within his means it does not mean that the competent Authority should search the accommodation. The wife of appellant as in service in mentioned in para 15 Civil Appeal NO. ____ of 2019 @ SLP(C) No. 10469 of 2016 Kumud w/o Mahadeorao Salunke vs. Shri Pandurang Narayan Gandhewar Through Lrs. & Ors.

3

of written notes of arguments. Under the circumstances whether alternative accommodation is available and can be made available, the burden of proof lies with the appellant.

However, the appellant failed to prove the same and hence there is no substance in the point.

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

ORDER

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

5. Having secured the permission from the Slum Authority, Civil

Suit No.113 of 2003 was filed by the appellant seeking decree of

eviction of the respondent. The suit was however dismissed by the

Trial Court on 27.09.2007. Regular Civil Appeal No.444 of 2007

arising therefrom was allowed by the Appellate Court and by its

judgment and order dated 17.08.2010 it passed decree for eviction

of the respondent and also passed order as regards payment of

arrears. It is undisputed that the decree passed by the Appellate

Court was not challenged in any manner and has attained finality.

6. In the meantime, Writ Petition No.2199 of 2003 was filed by

the respondent challenging the permission granted by the Slum

Authority as confirmed by the Appellate Authority vide its order

dated 31.10.2002. This Writ Petition was allowed by the High

Court by its judgment and order dated 19.06.2014. It was observed

that the Slum Authority had not considered the relevant factors Civil Appeal NO. ____ of 2019 @ SLP(C) No. 10469 of 2016 Kumud w/o Mahadeorao Salunke vs. Shri Pandurang Narayan Gandhewar Through Lrs. & Ors.

4 enumerated in Clauses (a) to (c) of Section 22(4) of the Slum Act,

1971 and consideration of those factors by the Appellate Authority

would not legalize the absence of such consideration by the

competent authority. It was observed as under:-

“7. In the present case, it is undisputed that he competent authority has not applied its mind and has not taken into consideration the relevant factors enumerated in clause (a) to (c) of section 22(4) of the Slum Act, 1971. The consideration of these factors by the appellate authority does not legalize the order passed by the competent authority. It is settled law that if anything has to be done according to the provisions of law, then it should be done in that manner only. The competent authority has passed the cryptic order. The appellate order cannot substitute its reasoning to legalize the order passed by the fact-finding authority.”

With this view, the writ petition was allowed and the matter

was again remitted to the authority for inquiry.

7. We heard Dr. A. Rajeev B. Masodkar, learned Advocate in

support of the appeal and Mr. Kishor Lambat, learned Advocate for

the respondents.

8. 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. The first

round had to be before the Rent Controller seeking permission to

issue a quit notice under Section 108 of the Transfer of Property

Act. If such permission was granted, then only the landlord could

issue a notice of termination of tenancy and file a civil suit

seeking eviction of a tenant. In the present case the first round Civil Appeal NO. ____ of 2019 @ SLP(C) No. 10469 of 2016 Kumud w/o Mahadeorao Salunke vs. Shri Pandurang Narayan Gandhewar Through Lrs. & Ors.

5 before the Rent Controller was gone into. Bona fide need as a

ground for eviction may, in a given case, have an additional facet

of comparative hardship and whether the tenant has any alternative

accommodation or not. In any case, the matter had attained

finality. The permission was granted by the Rent Controller and

the civil suit was filed only thereafter in which an objection was

taken that the premises being governed by the provisions of the

Act, the requisite permission of the Slum Authority was mandatory.

9. In the proceedings so initiated the Slum Authority granted

that permission. The matter was carried in appeal and the issue

whether the requirements under Section 22(4) of the Act stood

satisfied or not was also considered by the Appellate Authority.

It must also be noted that the Civil Suit seeking eviction

also attained finality.

10. In the circumstances, the view that weighed with the High

Court was not correct. The respondent had opportunity at every

stage to present his case and whether the requirements of Section

22(4) of the Act stood satisfied or not was a matter which was

dealt with by the Appellate Authority in sufficient detail. In

the circumstances there was no reason for the High Court to

interfere in its jurisdiction under Article 227 of the

Constitution of India.

11. We, therefore, allow this appeal, set aside the judgment and Civil Appeal NO. ____ of 2019 @ SLP(C) No. 10469 of 2016 Kumud w/o Mahadeorao Salunke vs. Shri Pandurang Narayan Gandhewar Through Lrs. & Ors.

6 order dated 19.06.2014 passed by the High Court in Writ Petition

No.2199 of 2003 and restore the order dated 31.10.2002 passed by

the Appellate Authority.

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

…………………………….J. (Uday Umesh Lalit)

………………………….J. (Indu Malhotra)

New Delhi;

May 10, 2019.