Full Judgment Text
REPORTABLE
2024 INSC 71
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1543 OF 2016
BAITULLA ISMAIL SHAIKH
AND ANR. …APPELLANT(S)
VERSUS
KHATIJA ISMAIL PANHALKAR
AND ORS. …RESPONDENT(S)
WITH
CIVIL APPEAL NO. 1544 OF 2016
J U D G M E N T
ANIRUDDHA BOSE, J.
The appellants before us are landlords and they assail a
judgment delivered by a Single Judge of the Bombay High Court
on 04.08.2015 exercising his revisional jurisdiction invalidating
eviction decrees against two tenants in respect of two portions of
the same building. The building in question carries House
Signature Not Verified
No.86 as per the municipal records, comprised in C.S. No. 111/b
Digitally signed by
NIRMALA NEGI
Date: 2024.01.30
17:32:47 IST
Reason:
as per city survey records, located at Dr. Sobane Road in
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Mahabaleshwar, District-Satara within the State of Maharashtra.
The Civil Appeal No. 1543 of 2016 arises out of Civil Suit No. 136
of 2010 and the tenant/defendant in that suit is one Khatija
Ismail Panhalkar. In this suit, two of his sons have also been
impleaded as defendants. The premises involved in these
proceedings comprise of two blocks within the aforesaid building.
One block comprises of 10’×4’ structure made of ‘ita and tin shed’.
Civil Appeal No. 1544 of 2016 arises out of Civil Suit No. 137 of
2010 and the tenant whose eviction is sought for in this suit is
one Vasant Mahadeo Gujar (since deceased). Before us, his legal
representatives have contested the appeal. The property from
which the appellants want them to be evicted comprises of two
rooms comprising of an area of 10’×12’, which appears to be
located in the middle of the said building. The two rooms, at the
material point of time, were being used for residential purpose.
The appellants purchased the subject-premises in the year 1992
from its erstwhile owner. Both the tenants were inducted by the
erstwhile owner of the building in question.
2. On 23.01.2002, a demolition notice was issued by the
Mahabaleshwar Giristhan Municipal Council for a part of the
subject-building. This notice constituted one of the grounds on
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which the appellants wanted to evict the respondents under the
Maharashtra Rent Control Act, 1999 (“the 1999 Act”). This notice
was followed by three subsequent notices by the said Municipal
Council on 03.12.2005, 13.07.2009 and 05.07.2010, almost on
similar terms. The suit, however, was founded on, inter-alia, the
notice dated 23.01.2002. This notice is of relevance so far as these
appeals are concerned and we quote below the text thereof:-
“ANNEXURE P- 1
MAHABALESHWAR GIRISTHAN MUNICIPAL COUNCIL,
MAHABALESHWAR, DIST. SATARA- 412806
Municipal office no. 60220 Chief officer no. 60673
President office no. 60232 Chief officer res. No
60671
----------------------------------------------------------------------------------------
V.S. NO. 15/527 Date; 23-1-2002
Notice
You are do hereby informed that on inspection of the
property comprised in C.S. no. 111-b, house no. 86-
b situated within the municipal council, as on today
that is 22-1-2002 it is found that the wall from the
eastern side is swollen and there are cracks. It is
also found that the wooden pillars, wood is
damaged and ceiling also has turned out of shape.
Due to this the danger to the house is apprehended.
There is risk to the persons residing in the house as
well as the persons coming and going. At anytime
thre is possibility of collapsing the said dangerous
building due to which there is possibility of fatalities
and the financial loss. Hence vide this notice it is to
inform you to demolish the said dangerous portion
immediately on receipt of this notice otherwise if any
fatality occurs or the financial loss occurs due to the
said house then municipal council will not be
responsible and the entire responsibility will lie in
your part. And please note the same.
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Sd/-
Chief officer
Mahabaleshwar Giristhan
Municipal council
To,
Baitulla lsmail sheikh and C.K. Aris.
Vasant Mahadev Gujar
Khatija lsmail Panhalkar”
3. Notices for eviction were subsequently sent to the tenants in
each appeal and both these notices are dated 04.02.2002. So far
as the notice to the respondents in Civil Appeal No. 1543 of 2016
is concerned, the delivery of vacant possession was asked for on
five main grounds. The first one was default in payment of rent.
The next ground was erection of a permanent structure by the
tenant without permission of the landlord. The third point was
subletting and it was also stated in that notice that the landlords
had decided to construct a building thereon for residential
purpose as also for operating a hotel. Under Section 16(1)(i) of
the 1999 Act, the erection of a new building could come within
“reasonable and bona fide” requirement of landlord, subject to
satisfaction of certain other stipulated conditions. The
municipality’s demolition notice was also cited as a ground for
eviction. We shall reproduce provisions of Sections 15 and 16 of
the said enactment in subsequent paragraphs of this judgment.
In the eviction notice to the respondent in Civil Appeal No. 1544
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of 2016, the grounds cited were, inter-alia, issue of the demolition
notice by the municipality, default in payment of rent and also
necessity of the tenanted portion for construction of a new
building upon demolishing the structures on the land.
4. As the eviction notices did not yield any result, the two suits
were instituted on the same date, i.e. 07.08.2002. These suits
appear to have had been tried simultaneously and they were
decreed by the Trial Court, which was sustained by the Appellate
Court. In the Civil Revision Petition, the tenants succeeded as the
judgment and decree were set aside.
5. In course of the proceeding before the Trial Court, a
Commissioner was appointed. He was an architect. His opinion,
however, was not accepted by the Trial Court. He had given his
opinion that a portion referred to as “C” in his report was
dangerous and was required to be demolished. This portion,
however, was in possession of the plaintiffs only, but adjacent to
the suit property (in Civil Appeal No. 1543 of 2016). Though his
report dated 08.12.2008 carries the caption of suit no. (239 of
2002) 136 of 2010, the report was examined by the Trial Court in
connection with both the suits. His report on the necessity of
urgent demolition of the tenanted portions was not fully
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conclusive but his view was that the entire building was about 97
years old and life of the building was over. His opinion has been
referred to and dealt with by the Trial Court in the following
terms:-
“16) In this respect I have perused evidence of D.W.1 Vivek
and his commission report at Exh.122. It is pertinent to note
that in the commission report Exh.122, the commissioner
has given actual position of every room situated in
C.T.S.No.111/B. In his conclusion he has opined that, the
building is approximately 96 to 97 years old and the life of
building is over. Considering all the material he opined that
the portion shown as 'C' in the map is dangerous and is
required to be demolished. It is important to note that, said
portion shown as 'C' is the room which is in possession of
plaintiffs and adjacent to suit property. The commissioner
has also filed number of photographs showing the position
of property at Exh. 135 to Exh. 148. Further, if D.W.1 Vivek's
deposition is perused it is clear that he has supported his
commission report. In cross examination, he admitted that,
if the cementing strength of soi! used for construction is gone
then there may be cracks to the wall ·and to reconstruct the
said wall the previous wall is required to be demolished,
further, if the base of construction is not strong then new
construction can also collapse. He further admitted that, if
the portion shown by red ink in the map i.e. 'C' is
demolished the entire roof on the property is also required
to be removed and if said roof is removed it will create
danger to the roof of the property on the western side and
ta the roof on 'B' portion. Further, if total evidence of
D.W.1 Vivek is considered it cannot be said that, he
had opined that, suit property is in dilapidated
condition though he had admitted that the life of suit
property is over .”
(Emphasis supplied)
6. It would be evident from this part of the judgment of the Trial
Court that there was no specific finding that the portions in
respect of which the respondents have tenancy required
immediate demolition. It was a portion of the premises in
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possession of the landlords which, in the opinion of the
Commissioner was dangerous. The Trial Court proceeded on the
basis that it could not sit in appeal over the decision of Municipal
Council requiring demolition. On plaintiffs’ plea of default, the
Trial Court rejected that contention holding that the tenants were
ready and willing to pay the rent of the suit property and during
the pendency of the suit, they had deposited the rent. The Trial
Court also rejected the landlord’s contention that the subject-
property was sublet or permanent structure was made without
consent of the landlord. The Trial Court, however, opined that the
landlord was the best judge of his own requirement and on that
basis the issue of bona fide need was decided in favour of the
appellants.
7. The Appellate Court sustained the judgment and decree on
the ground of bona fide need as also necessity to effect demolition
of the subject-building. In addition, it overturned the Trial Court’s
finding on there being no default in payment of rent on the ground
that the provisions of Section 15(3) of the 1999 Act could not
support the tenant’s case. On the question of permanent
structure having been made by the respondent in Civil Appeal No.
7
1543 of 2016 without permission of the landlord and question of
sub-letting, the Trial Court’s decision was sustained.
8. The Revisional Court on analysing the provisions of Sections
15 and 16 of the said Statute set aside the judgment and decree
and allowed the revision applications of the tenants.
9. The provisions of Sections 15 and 16 of the 1999 Act
stipulate:-
“15. No ejectment ordinarily to be made if tenant pays or is
ready and willing to pay standard rent and permitted
increases.
(1) A landlord shall not be entitled to the recovery of
possession of any premises so long as the tenant pays,
or is ready and willing to pay, the amount of the,
standard rent and permitted increases, if any, and
observes and performs the other, conditions of the
tenancy, in so far as they are consistent with the
provisions of this Act.
(2) No suit for recovery of possession shall be instituted
by a landlord against the tenant on the ground of non-
payment of the standard rent or permitted increases
due, until the expiration of ninety days next after notice
in writing of the demand of the standard rent or
permitted increases has been served upon the tenant
in the manner provided in section 106 of the Transfer
of Property Act, 1882.
(3) No decree for eviction shall be passed by the court
in any suit for recovery of possession on the ground of
arrears of standard rent and permitted increases if,
within a period of ninety days from the date of service
of the summons of the suit, the tenant pays or tenders
in court the standard rent and permitted increases
then due together with simple interest on the amount
of arrears at fifteen per cent per annum; and thereafter
continues to pay or tenders in court regularly such
standard rent and permitted increases till the suit is
finally decided and also pays cost of the suit as
directed by the court.
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(4) Pending the disposal of any suit, the court may, out
of any amount paid or tendered by the tenant, pay to
the landlord such amount towards the payment of rent
or permitted increases due to him as the court thinks
fit.
16. When landlord may recover possession.
(1) Notwithstanding anything contained in this Act but
subject to the provisions of section 25, a landlord shall
be entitled to recover possession of any premises if the
court is satisfied-
(a) that the tenant has committed any act contrary to
the provisions of clause (o) of section 108 of the
Transfer of Property Act, 1882;
Explanation.- For the purposes of this clause, replacing
of tiles or closing of balcony of the premises shall not
be regarded as an act of a causing damage to the
building or destructive or permanently injurious
thereto; or
(b) that the tenant has, without the landlord's consent
given in writing, erected on the premises any
permanent structure;
Explanation.- For the purposes of this clause, the
expression "permanent structure" does not include the
carrying out of any work with the permission,
wherever necessary, of the municipal authority, for
providing a wooden partition, standing cooking
platform in kitchen, door, lattice work or opening of a
window necessary for ventilation, a false ceiling,
installation of air-conditioner, an exhaust outlet or a
smoke chimney; or
(c) that the tenant, his agent, servant, persons inducted
by tenant or claiming under the tenant or, any person
residing with the tenant has been guilty of conduct
which is a nuisance or annoyance to the adjoining or
neighbouring occupier, or has been convicted of using
the premises or allowing the premises to be used for
immoral or illegal purposes or that the tenant has in
respect of the premises been convicted of an offence of
contravention of any of the provisions of clause (a) of
sub-section (1) of section 394 or of section 394A of the
Mumbai Municipal Corporation Act, or of sub-section (1)
or of section 376 or of section 376A of the Bombay
Provincial Municipal Corporations Act, 1949, or of
section 229 of the City of Nagpur Municipal Corporation
Act, 1948; or of section 280 or of section 281 of the
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Maharashtra Municipal Councils, Nagar Panchayats
and Industrial Townships Act, 1965; or
(d) that the tenant has given notice to quit and in
consequence of that notice,the landlord has contracted
to sell or let the premises or has taken any other steps
as a result of which he would, in the opinion of the
court, be seriously prejudiced if he could not obtain
possession of the premises; or
(e) that the tenant has,-
(i) on or after the 1st day of February 1973, in the areas
to which the Bombay Rents, Hotel and Lodging House
Rates Control Act, 1947 applied; or
(ii) on or after the commencement of this Act, in the
Vidarbha and Marathwada, areas of the State,
unlawfully sub-let or given on licence, the whole or part
of the premises or assigned or transferred in any other
manner his interest therein; or
(f) that the premises were let to the tenant for use as a
residence by reason of his being in the service or
employment of the landlord, and that the tenant has
ceased, whether before or after commencement of this
Act, to be in such service or employment; or
(g) that the premises are reasonably and bona fide
required by the landlord for occupation by himself or
by any person for whose benefit the premises are held
or where the landlord is a trustee of a public charitable
trust that the premises are required for occupation for
the purposes of the trust; or
(h) that the premises are reasonably and bona fide
required by the landlord for carrying out repairs which
cannot be carried out without the premises being
vacated; or
(i) that the premises are reasonably and bona fide
required by the landlord for the immediate purpose of
demolishing them and such demolition is to be made
for the purpose of erecting new building on the
premises sought to be demolished; or
(j) that the premises let consist of a tenement or
tenements on the terrace of a building such tenement
or tenements being only in part of the total area of the
terrace, and that the premises or any part thereof are
required by the landlord for the purpose of the
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demolition thereof and erection or raising of a floor or
floors on such terrace;
Explanation.-For the purposes of this clause, if the
premises let include the terrace or part thereof, or
garages, servants quarters or out-houses (which are
not on the terrace), or all or any one or more of them,
this clause shall nevertheless apply; or
(k) that the premises are required for the immediate
purpose of demolition ordered by any municipal
authority or other competent authority; or
(l) that where the premises are land in the nature of
garden or grounds appurtenant to a building or part of
a building, such land is required by the landlord for the
erection of a new building which a municipal authority
has approved or permitted him to build thereon; or
(m) that the rent charged by the tenant for the premises
or any part thereof which are sublet is in excess of the
standard rent and permitted increases in respect of
such premises or part or that the tenant has received
any fine, premium other like sum of consideration in
respect of such premises or part; or
(n) that the premises have not been used without
reasonable cause for the purpose for which they were
let for a continuous period of six months immediately
preceding the date of the suit.
(2) No decree for eviction shall be passed on the ground
specified in clause (g) of subsection (1), if the court is
satisfied that, having regard to all the circumstances of
the case including the question whether other
reasonable accommodation is available for the
landlord or the tenant, greater hardship would be
caused by passing the decree than by refusing to pass
it.
Where the court is satisfied that no hardship would be
caused either to the tenant or to the landlord by
passing the decree in respect of a part of the premises,
the court shall pass the decree in respect of such part
only.
Explanation. - For the purposes of clause (g) of sub-
section (1), the expression "landlord" shall not include
a rent-farmer or rent-collector or estate-manager.
(3) A landlord shall not be entitled to recover possession of
any premises under the provisions of clause (g) of sub-
section (1), if the premises are let to the Central Government
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in a cantonment area, and such premises are being used for
residence by members of the armed forces of the Union. or
their families.
(4) The court may pass the decree on the ground specified
in clause (h) or (i) of subsection (1) only in respect of a part
of the premises which in its opinion it is necessary to vacate
for carrying out the work of repair or erection.
(5) Notwithstanding anything contained in any other law for
the time being in force, an assignment of a decree for
eviction obtained on the grounds specified in clauses (g), (h),
(i) and (j) of sub-section (1) shall be unlawful.
(6) No decree for eviction shall be passed on the ground
specified in clause (i) or (j) of sub-section (1), unless the court
is satisfied-
(a) that the necessary funds for the purpose of the erection
of new building or for erecting or raising of a new floor or
floors on the terrace are available with the landlord,
(b) that the plans and estimates for the new building or new
floor or floors have been properly prepared;
(c) that the new building or new floor or floors to be erected
by the landlord shall, subject to the provisions of any rules,
bye-laws or regulations made by municipal authority
contain residential tenements not less than the number of
existing tenements which are sought to be demolished;
(d) that the landlord has given an undertaking.-
(i) that the plans and estimates for the new building or new
floor or floors to be erected by the landlord include premises
for each tenant with carpet area equivalent to the area of
the premises in his occupation in the building sought to be
demolished subject to a variation of five per cent in area;
(ii) that the premises specified in sub-clause (i) will be
offered to the concerned tenant or tenants in the re-erected
building or, as the case may be, on the new floor or floors;
(iii) that where the carpet area of premises in the new
building or on the new floor or floors is more than the carpet
area specified in sub-clause (i) the landlord shall, without
prejudice to the liability of the landlord under sub-clause (i),
obtain the consent 'in writing' of the tenant or tenants
concerned to accept the premises with larger area; and on
the tenant or tenants declining to give such consent the
landlord shall be entitled to put the additional floor area to
any permissible use;
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(iv) that the work of demolishing the premises shall be
commenced by the landlord not later than one month, and
shall be completed not later than three months, from the
date he recovers possession of the entire premises; and
(v) that the work of erection of the new building or new floor
or floors shall be completed by the landlord not later than
fifteen months from the said date:
Provided that, where the court is satisfied that the work of
demolishing the premises could not be commenced or
completed, or the work of erection of the new building or, as
the case may be, the new floor or floors could not be
completed, within time, for reasons beyond the control of the
landlord, the court may, by order, for reasons to be
recorded. extend the period by such further periods, not
exceeding three months at a time as may, from time to time,
be specified by it, so however that the extended period shall
not exceed twelve months in the aggregate.
(7) Where the possession of premises is recovered on the
ground specified under clause (g), (h), (i) or (j) of sub-section
(1) and the premises are transferred by the landlord, or by
operation of law before the tenant or tenants are placed in
occupation, then such transfer shall be subject to the rights
and interests of such tenants.
(8) For the purposes of clause (m) of sub-section (1), the
standard rent or permitted increase in respect of the part
sub-let shall be the amounts bearing such proportion to the
standard rent or permitted increases in respect of the
premises as may be reasonable having regard to the extent
of the part sub-let and other relevant considerations.
(9) Notwithstanding anything contained in this Act, where
the premises let to any person include-
(i) the terrace or part thereof; or
(ii) any one or more of the following structures, that is to say,
tower-rooms, sitting-outrooms, ornamental structures,
architectural features, landings, attics on the terrace of a
building, or one or more rooms of whatsoever description on
such terrace (such room or rooms being in the aggregate of
an area not more than one-sixth of the total area of the
terrace); or
(iii) the terrace or part thereof and any such structure,
and the court is satisfied that the terrace or structure or
terrace including structure, as aforesaid, are required by the
landlord for the purpose of demolition and erection or raising
of a floor or floors on such terrace, the landlord shall be
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entitled to recover possession of the terrace including such
tower-rooms, sitting-out-rooms, ornamental structures,
architectural features, landings, attics or rooms, the court
may make such reduction, if any, in the rent as it may deem
just.
(10) A suit for eviction on the grounds specified in clause (h),
(i), (i) or (k) of sub-section (1) may be filed by the landlord
jointly against all the tenants occupying the premises
sought to be demolished.”
10. The eviction proceeding was instituted in the suit giving rise
to Civil Appeal No.1543 of 2016 against the appellants, inter-alia,
on the grounds of having made construction of permanent nature
by extending the area of the shop premises, without the landlords’
consent, causing permanent damage to the property in question,
causing nuisance and annoyance to the adjoining area and
neighbouring occupiers as also inducting a relative as sub-
tenant. It was pleaded by the appellants that because of rusting
of beams holding the tenanted structure, the roof of the rented
property was damaged as a result of which it had become
dangerous for the occupation of human beings. Demolition notice
issued by Mahabaleshwar Giristhan Municipal Council to the
landlords dated 23.01.2002 was relied upon in the plaint in this
regard. So far as the suit forming the basis of Civil Appeal
No.1544 of 2016 is concerned, the grounds for eviction were
default in the payment of rent, demolition notice having been
14
issued by the Municipal Council on 23.01.2002, as also for
necessity of having the premises for the purpose of carrying out
construction for residential purpose and hotel. This requirement,
the appellant argued, constituted bona fide requirement by the
landlord. On the finding of the Appellate Court that there was
default in payment of rent, the High Court held:-
“12(c) The Appeal Court has committed an error of law,
apparent on face of record in interpreting Section 15 of the
Rent Act, in the manner it has. The interpretation is contrary
to both, the text as well as the rulings of this Court on the
subject. This is a case where ·rents were regularly offered
and dispatched by way of money orders. The rents were,
however, refused by the landlords. In such circumstances,
there is no obligation upon the tenants to comply with
conditions prescribed in Section 15(3) of the Rent Act. It is
always open to a tenant to establish and prove that the
tenant was always ready and willing to pay rent and
therefore, there was no cause of action to even initiate
proceedings for eviction under Section 15(1) of the Rent Act.
Besides, a careful perusal of the impugned orders would
indicate that concurrently the two Courts have accepted that
there was no default in payment of rents. There is, in any
case, ample evidence on record to establish that there was
no default in payment of rent;”
11. The Revisional Court examining the question of reasonable
and bona fide requirement of the landlords found eviction was
sought for demolishing the suit premises and erecting a new
building thereon. In the opinion of the High Court, it was
incumbent on the part of the fact finding fora to come to a finding
on that question and record satisfaction as required under sub-
sections (4), (5), (6) and (7) of Section 16 of the 1999 Act. We have
15
quoted above Section 16 of the 1999 Act. The High Court appears
to have connected the claim based on reasonable and bona fide
requirement to Sections 16 (1)(h) and (i) of the said statute.
Though these two provisions apply in different contexts, sub-
section (4) thereof requires the Court to carry out an exercise to
determine which part of the rented-out premises ought to be
vacated for carrying out the work of repair or erection. The first
two fora did not address this question, which is a statutory
requirement. A three-Judge Bench of this Court, in the case of P.
ORR & Sons (P) Ltd. -vs- Associated Publishers (Madras) Ltd.
[(1991) 1 SCC 301] dealing with a provision similar to Section
16(1)(i) contained in the rent legislation for the State of Tamil
Nadu, Tamil Nadu Buildings (Lease and Rent Control) Act, 1960
opined that the condition of building had to be considered for
determining the legitimacy of the demand for timely demolition by
reason of extent of damage to the structure, apart from
considering other factors. It was also pointed out in this judgment
that there was no necessity of the building being in crumbling
condition to invoke the said provision. This view was echoed in a
Constitution Bench judgment of this Court in the case of Vijay
Singh and Others -vs- Vijayalakshmi Ammal [(1996) 6 SCC
16
475]. But these authorities do not clash with the reasoning of the
High Court anchored on Section 16(4) of the 1999 Act. That
provision lays down an entirely different test, and that is to
ascertain if part-demolition could save the tenant’s interest.
Dealing with claim based on Section 16(1)(h) and (i) of the 1999
Act, the statutory mandate for the Court is to test the question of
part vacating. Neither the Trial Court nor the Appellate Court
chose to analyse this requirement before directing eviction. This
provision becomes relevant as the initial demolition notice
identifies a part of the premises requiring demolition and the
Commissioner’s report is also on that line. Sub-section (2) of
Section 16 relates to reasonable and bona fide need in terms of
Section 16(1)(g) and if the requirement is in the aforesaid terms,
then the Court has to be satisfied having regard to all the
circumstances of the case including the question whether other
reasonable accommodation is available to the landlord or the
tenant. This provision essentially incorporates the principle of
“comparative hardship”, as such a test has come to be known in
tenancy jurisprudence. We have been taken through the
judgments of the Trial Court and the Appellate Court on this
point. The Appellate Court came to the finding that balance on
17
this point tilts in favour of the landlord. The High Court rejected
this finding, holding:-
“54] However, the respondent-landlords, have not at all
been candid with the Court insofar as the pleadings are
concerned. In the course of evidence, it has come on record
that the respondent-landlords have, besides the suit
premises several other premises, which are being used by
them for purposes of commerce as well as residence. Some
of the premises, may have been acquired post the institution
of the suit including in particular, the premises acquired by
one of the sons of Baitullah Shaikh. Nevertheless, there
were no disclosures volunteered in the course of
examination-in-chief. Even if, the premises subsequently
acquired are left out of consideration, there was a duty upon
the respondent-landlords to fully and candidly make
disclosure about the premises in their occupation, both for
the purposes of residence as well as commerce and
thereafter to explain, howsoever briefly, the subsistence of
the need in respect of suit premises. The respondent-
landlords have completely failed in this aspect. Such non-
disclosure is a relevant consideration in the context of
determining both the reasonability as well as bona fides.
55] The tenants have managed to bring on record the
material in the context of occupation and control of several
premises by the respondent-landlords. Looking to the
conduct of the respondent-
landlords, there is no certainty as to whether the
premises in respect of which the tenants have obtained
and produced documents, are only premises which are
in the occupation or control of the respondent-landlords
or whether there are some others as well.
However, even on basis of the existing material on
record, there was no question of making any decree
under Section 16(1) (g) of the Rent Act.”
We affirm the view taken by the High Court that there was no
satisfaction in the manner contemplated in Section 16 (2) of the
1999 Act as far as bona fide need in terms of Section 16(1)(g) was
concerned. In the impugned judgment, the High Court has dealt
18
with in detail the list of properties which were with the landlords
and on that basis gave its own finding in that regard. We do not
find any perversity in such view taken by the High Court.
12.
Sub-section (6) of Section 16 also mandates satisfaction of
the conditions stipulated in sub-clauses (a) to (d) thereof. Sub-
clause (d) in particular, contemplates the landlord to give
undertaking in terms of paragraphs (i), (ii), (iv) and (v) of that sub-
clause, while dealing with landlord’s eviction claim based on
Section 16(1)(i) of the said statute. These are all mandatory
requirements and we cannot find any flaw with the judgment of
the High Court to the extent it rejects the claim of the landlord for
non-compliance of the aforesaid provisions.
13. Section 16(1)(k) of the said Act permits recovery of possession
of tenanted premises on the ground that the premises are
required for immediate purpose of demolition ordered by any
municipal or other competent authority. In the present case, the
respective suits were instituted seeking recovery of possession,
inter-alia, under this provision. We have already referred to the
demolition notice issued by the municipal authority. The High
Court opined that it was necessary to satisfy itself that the suit
premises were required for immediate purpose of demolition.
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Contention of the appellants is that the Statute does not require
the Court to come to a satisfaction on this point. In the event a
tenant questions immediacy of demolition, then the proper course
for him would be to question legality of the said notice. Section
195 of the Maharashtra Municipal Councils, Nagar Panchayats
and Industrial Townships Act, 1965 (“1965 Act”) to which the
High Court has also referred to, stipulates:-
“195. (1) If it shall at any time appear to the Chief Officer
that any building or other structure or anything affixed to
such building or structure is in a ruinous condition or likely
to fall, or in any way dangerous to any person occupying,
resorting to or passing by such building or structure or any
other structure or place in the neighbourhood thereof, the
Chief Officer may, by written notice, require the owner or
occupier of such building or structure to pull down, secure,
remove or repair such building, structure or thing or do one
or more such things and to prevent all causes of danger
therefrom.
(2) The Chief Officer may also, if he thinks fit, require the
said owner or occupier, by the said notice, either forthwith
or before proceeding to put down, secure, remove or repair
the said building, structure or thing, to set up a proper and
sufficient board or fence for the protection of passers by and
other persons.
(3) If it appears to the Chief Officer that the danger from a
building, structure or thing which is ruinous or about to fall
is of hourly imminence he shall, before giving notice as
aforesaid or before the period of notice expires, fence of,
take down, secure or repair the said structure or take such
steps or cause such work to be executed as may be required
to arrest the danger.
(4) Any expenses incurred by the Chief Officer under sub-
section (3) shall be paid by the owner or occupier of the
structure and shall be recoverable in the same manner as
an amount due on account of a property tax.”
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14. The High Court found fault with the demolition notice as it
carried no reference to the said provision (Section 195 of the 1965
Act). This flaw, by itself would not make the notice unenforceable.
Omission to label a notice with the provision under which it is
issued would not make it nugatory, if substance thereof is clearly
conveyed. But the High Court also found:-
“76…Further, the notice is not directly in the context of suit
premises occupied by the tenants, but rather pertains to
certain portions of House No.86B. The notice, does not
require demolition of the entire House No.86B, but rather
requires removal of portions thereof, including in particular
eastern wall, rafters and roofing. On basis of such notice, it
is difficult to sustain an eviction order under Section 16(1)(k)
of the Rent Act, particularly where no satisfaction
whatsoever has been recorded by the two Courts on the
aspect of 'immediate purpose of demolition', which
satisfaction, was required to be recorded, both in terms of
the context of Section 16(1)(k) of the Rent Act as also the
decision of this Court in case of M.L Sonavane (supra).
77] There is yet another significant aspect in the context of
order of eviction under Section 16(1)(k) of the Rent Act. On 6
August 2002, the tenants lodged the complaint to the
Municipal Authorities that the landlord Baitulla Shaikh was
deliberately indulging in weakening of the walls of the
portion of House N0.86, in his possession, with the objective
of weakening the entire structure. Based upon such
complaint, on 29 August 2002, an inspection was held by
the Municipal Authority. Upon finding some merit in the
complaint of the tenants, the decision was taken to issue
appropriate notice to the landlords Baitulla Shaikh and C.K.
Aris, Hamid. Pursuant to such decision, the Municipal
Authority, by notice dated 29 August 2002, notified the
landlords that during inspection it was revealed that the
landlords are illegally and unauthorisedly weakening the
walls of House No. 86 and that in future, if the wall
collapses and causes loss to the life and property of the
tenants, then, it is the landlords, who will be entirely
responsible for the same. The documents like compliant of
the tenants, inspection report as well as notice dated 29
August 2002 have been proved in the course of evidence
and have been marked as Exhibits 223, 224 and 225. This
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vital material has been completely ignored by the two
Courts. Exclusion of relevant and vital material, is also a
species of perversity in the record of any finding of fact. The
Court Commissioner was also appointed and even the
Report of the Court Commissioner does not make out the
case that the premises were required for immediate purpose
of demolition. The evidence of the Municipal Engineers as
well as the Court Commissioner, at the highest indicates
that certain portions of House No.86 are in need of repairs.
But the evidence does not make out any case that the suit
premises were required for the immediate purpose of
demolition. By virtually ignoring such material, the two
Courts have proceeded to make a decree of eviction under
Section 16(1)(k) of the Rent Act. This is an exercise in excess
of jurisdiction. There is both illegality as well as material
irregularity in the record of findings of fact, inasmuch as the
Courts have failed to ask itself correct question in the
context of 'immediate purpose' and further failed to consider
relevant circumstances, rather the two Courts have allowed
themselves to be persuaded by irrelevant circumstances.”
(quoted verbatim from the paperbook)
15. Scope of Section 195 of the 1965 Act has been examined by
the Bombay High Court in its judgment in the case of M.L.
Sonavane -vs- C.G. Sonar [1981 (1) All India Rent Control
Journal 466]. It is recorded in this judgment:-
“25. The more pertinent question however, is, whether the
satisfaction of a local authority can be a substitute for the
satisfaction of a court. The court must be satisfied as the
section says of two things. It must be satisfied that a decree
for possession has to be passed against a tenant and
secondly, “premises are required for the immediate
purposes of demolition.” Unless the court is satisfied about
the existence of both these things, it would be difficult to see
how a court can pass a decree for eviction against a tenant.
The satisfaction must relate to the requirement of passing a
decree for possession against the tenant, and the immediate
necessity of demolition. The satisfaction of the court is not a
substitute for the satisfaction of the local authority. Nor is it
that the court must itself inquire that the premises are in
such a ruinous condition that they are required to be
demolished. That satisfaction is relegated to the local
authority. But, even apart from that satisfaction, an area of
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satisfaction is still reserved for the court by the terms of the
section, which deals with that satisfaction with regard to
the passing of a decree for possession against the tenant,
such satisfaction has also to be with regard to the
immediate purpose of demolition. It is there and under those
circumstances that the subsequent events and actions enter
into the considerations of the court. If the court is satisfied
on a consideration of the subsequent events that the
premises are not required “for the immediate purposes of
demolition,” then, notwithstanding the order passed, upon
a bona fide exercise of the power by the local authority, the
court may still refuse to pass a decree. To my mind, that is
the decision and principle laid down in 72 Bombay Law
Reporter 569 and the judgment of Justice Patel referred
earlier.”
16. After holding that the satisfaction contemplated in the
aforesaid provision is that of the local authority in a suit for
eviction, it has been held that an area of satisfaction is still
reserved for the Court. Court has to examine if there is immediacy
of the need for demolition. Broadly, the same view has been taken
by the Bombay High Court in a later judgment, in the case of
Manohar Prabhumal Rajpal -vs- Satara City Municipal
Corporation, Satara and Another [(1993) 1 All India Rent
Control Journal 81]. In this judgment, the Court dealt with an
eviction suit filed under the provisions of Section 13(1)(hhh) of the
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947
(“1947 Act”). The said provision is near identical to the provisions
of Section 16(1)(k) of the Rent Control Act, 1999. While analysing
the said provision of the 1947 Act, the High Court had held that
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the Trial Court while examining a plea for decree under similar
statutory provision cannot sit in appeal over the decision of the
local authority once the latter had exercised its power after taking
into relevant factors into consideration. In our opinion, these two
decisions lay down the correct principles of law for construing the
provisions of Section 16(1)(k) of the 1999 Act. We accept the
appellant’s argument that the Court trying an eviction proceeding
under the aforesaid provision has very limited role in determining
as to whether demolition is really necessary or not, but it does not
automatically follow therefrom that the Court would mechanically
adopt the view of municipal authority of there being urgent need
of demolition. The conditions under which a landlord can bring
an eviction action under clauses (i) and (k) of Section 16(1) are
different in their operations. In respect of an eviction proceeding
founded on the former provision, it contemplates a lesser degree of
immediacy or urgency, as held in the Constitution Bench
judgment which we have referred to above. But the latter
provision requires a greater degree of urgency and it is within the
jurisdiction of the Court to test this factor, as held in the cases of
M.L. Sonvane (supra) and Manohar P. Rampal (supra). Both the
fact finding fora failed on this count.
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17. On behalf of the appellants, it was brought to our notice that
after the first demolition notice on 23.01.2002, three other notices
were issued. Obviously the two fact finding Courts did not
consider these notices as they did not form part of cause of action
and it also does not appear that the said facts were admitted to
be brought on the record by way of amendment of plaint or
otherwise. These notices would run their own course and we also
do not want to take cognizance of these subsequent notices as it
would be up to the authorities to take such steps as may be
permissible in law in respect of the subsequent notices. The
tenants shall also be entitled to question the legality thereof, if so
advised.
18. We are conscious that the Revisional Court was examining a
judgment and decree already tested by the Appellate Forum and
on facts, decree was made. Ordinarily the Revisional Court ought
not to interfere with findings on fact. But in the judgment under
appeal, we find that the Revisional Court has fitted the facts with
the legal provisions and found that there was mismatch on the
basis of which the judgment and decree were set aside. We have
been taken through the judgment of the Revisional Court and do
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not find any flaw that needs re-appreciation. We accordingly
dismiss both the appeals.
19. Pending application(s), if any, shall stand disposed of.
……………………………….J.
(ANIRUDDHA BOSE)
……………………………….J.
(BELA M. TRIVEDI)
New Delhi;
th
30 January, 2024
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