Bombay High Court
Dinanath Shankar Virarkar (Since ... vs Bhaskar Revji Jagtap on 20 August, 2024
2024:BHC-AS:33668
Megha 6_cra_538_2022_fc.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.538 OF 2022
1. Dinanath Shankar Virarkar (since
deceased)
2 . Shekhar alias Chandrashekar
Dinanath Virkar ...Applicant
V/s.
Bhaskar Revji Jagtap (deleted since
deceased)
1(A) Smt. Suman Bhaskar Jagtap and
Ors. ...Respondents
____________________________________________________________
Mr. Pandey P. Dutt for the Applicant.
Mr. B.K. Raje for the Respondents.
CORAM : SANDEEP V. MARNE, J.
Dated : 20 August 2024.
P.C. :
1) Revisionary jurisdiction of this Court under Section 115 of
Code of Civil Procedure, 1908 is invoked for setting up a challenge to
the concurrent findings recorded by the Small Causes Court and its
Appellate Bench directing eviction of the Revision Applicant from suit
premises. The Small Causes Court vide judgment and decree dated 16
July 2016 had decreed the Suit on the ground of bonafide requirement
by rejecting the other grounds of nuisance /annoyance and
Digitally
MEGHA
signed by
MEGHA
SHREEDHAR
unauthorised additions and alterations of permanent nature in the
SHREEDHAR PARAB
PARAB Date:
2024.08.22
17:21:21
+0530
suit premises. The ground of bonafide requirement has been upheld by
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the Appellate Bench in its judgment dated 4 May 2022 by dismissing
A1-Appeal No.429 of 2016. The decrees passed by the Small Causes
Court and its Appellate Bench are subject matter of challenge in the
present Revision Application.
2) I have heard Mr. Pandey, the learned counsel appearing
for the Revision Applicant and Mr. Raje, the learned counsel
appearing for the Respondents and have considered the submissions
canvassed by them and have perused the pleadings, documentary and
oral evidence on record.
3) The sheet-anchor of the revision applicant in support of
challenge to the decrees passed by the Small Causes Court and its
Appellate Bench is about maintainability of the Suit in view of
provisions of Section 22 of the Slum Areas (Improvement and
Clearance) Act, 1956 (Slum Act). According to Mr. Pandey, the land
on which the suit premises are located has been declared as slum area
by virtue of Notification dated 16 September 1976. He would submit
that the Small Causes Court and its Appellate Bench have erroneously
relied upon Order passed by the Slum Tribunal on 31 October 1977,
which does not cover land on which the suit premises are located. Mr.
Pandey would take me through the order dated 31 October 1977
passed by the Slums Tribunal and according to him, the impugned
declaration of Competent Authority came to be set aside only qua the
lands covered by 239 appeals filed before the Tribunal. The operative
portion of the order passed by the Slums Tribunal reads thus:
1. The impugned declaration of the Competent Authority so far as it
pertains to the lands involved in all these two hundred thirty nine
appeals is set aside.
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2. All these matters are remanded to the Competent Authority for
fresh inquiry and decision according to law.
4) According to Mr. Pandey, the suit premises are located on
part of land bearing survey No.78 and City Survey No.328 and the
entire CTS admeasures 6 Acres 19 Gunthas. According to him, Smt.
Lila Shele had filed Appeal No. 312 of 1976 in respect of her own land
within Survey No.78 and City Survey No.328 and that no appeal was
preferred by Respondent qua the land owned by him. He would submit
that since the Slum Tribunal set aside the Notification only in respect
of the lands involved in the appeal, only the land of Smt. Lila Shele
located within Survey No.78 City Survey No.328 got deleted from the
Notification. He would submit that the order of the Slums Tribunal
dated 31 October 1977 cannot be read to mean as if the entire land
covered by Survey No.78 and City Survey No.328 came to be deleted
from the Notification dated 16 September 1976. He would further
submit that both the Courts have erroneously relied upon Appeal
No.24 of 1976, which does not relate to the land on which the suit
premises are located. He has submitted that Appeal No.24 of 1976 was
filed by Smt. Pritam Kaur in respect of CTS No.106 which has no
relation to the land on which the suit premises are located.
5) After having considered the submissions canvassed by Mr.
Pandey on the issue of land being declared as slum, it is seen that
initial Notification dated 16 September 1976 was issued by the
Competent Authority declaring various lands included in the
Notification to be slum. It appears that land bearing CTS No.328 out
of Survey No.78 was admeasuring 6 Acres 19 Gunthas was included in
the Notification dated 16 September 1976. Mr. Pandey has contended
that Appeal No.312 of 1976 filed by Smt. Lila Shele did not cover the
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entire land admeasuring 6 Acres 19 Gunthas bearing CTS No.328 of
Survey No.78. However, after going through the entire reasonings of
the Slums Tribunal in the order dated 31 October 1977, it is seen that
the impugned Notification dated 16 September 1976 is essentially set
aside on the ground of same being issued in a hurried and arbitrary
manner, without proper enquiry or investigation in accordance with
the principles of natural justice. This is the reason why instead of
setting aside Notification in its entirety, the Tribunal thought it
appropriate to remand the matter to the Competent Authority for the
purpose of fresh enquiry and investigation about the conditions
prevailing at the site. Thus, the Competent Authority was supposed to
conduct a fresh enquiry and investigation as to whether conditions
prevailing at the site required declaration of the land in question to be
slum or not. Considering the reasoning adopted by the Slum Tribunal
it cannot be stated that only the lands of Appellants before the Slum
Tribunal got deleted from the Notification or that order of the Slum
Tribunal dated 31 October 1977 needs to be read as if any part of the
land covered by Notification dated 16 September 1976 continued to be
slum land, even after passing of order dated 31 October 1977. The
correct way of reading order dated 31 October 1977 would be remand
of the entire matter for fresh enquiry and investigation by setting
aside the declaration made by Notification dated 16 September 1976.
Nothing is placed on record to indicate that after passing of the order
of the Slums Tribunal dated 31 October 1977, any fresh Notification
was issued by the Competent Authority declaring the land on which
the suit premises is located is slum.
6) In my view therefore the Trial Court and its Appellate
Bench have rightly rejected the objection raised by the Revision
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Applicant about the land being slum and about the maintainability of
Suit in absence of permission of the Competent Authority under
Section 22 of the Slums Act.
7) The Suit has been decreed by the Trial Court on the
ground of bonafide requirement by repelling the grounds of nuisance
and annoyance and carrying out unauthorised additions and
alterations of permanent nature to the suit premises. So far as the
ground of bonafide requirement is concerned, it has come in the
evidence that when the Suit was filed in the year 1976, Plaintiff and
his family consisted of his wife, younger son, younger son's wife and
grandchild. Thus, they were at least five members in the family of
Plaintiff at the time when the Suit was filed. Mr. Pandey has sought to
highlight contradictions in the evidence of Plaintiff by submitting that
Plaintiff suppressed the exact rooms in his possession in the Plaint.
Mr. Pandey has submitted that while Plaintiff disclosed in the Plaint
that he was possessing only two rooms, he ultimately admitted in his
cross-examination that he was possessing four rooms, out of which one
room was sold and three rooms continued to be in his possession. Mr.
Pandey also sought to highlight admissions given by Plaintiff in his
cross-examination that the size of the upper floor is 20x20. Mr. Pandey
has accordingly submitted that Plaintiff admitted in his cross-
examination that in addition to three rooms on ground floor, he
possessed upper floors admeasuring 400 sq.ft. True it is that some
admissions are given by Plaintiff during the course of his cross-
examination. However, after the cross-examination of the Plaintiff was
complete, Defendant filed his affidavit-of-evidence on 26 August 2015
in which the Defendant contended that 'I say that Plaintiff and his
younger son have very big bungalow type premises consisting of ground
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floor admeasuring 625 sq.ft. at Bhaskar Bhuvan, situated at
Maharashtra Nagar, Mumbai- 400078'. The Defendant thus, led
specific evidence that Plaintiff possessed premises admeasuring only
625 sq.ft. It is Plaintiff's case that the structure on the first floor is
merely a loft.
8) In my view since Defendant himself admitted that
Plaintiff possessed only area admeasuring 625 sq.ft., the bonafide need
of the Plaintiff to accommodate 5 members of the family, including a
growing child, cannot really be ignored. It is settled position of law
that Plaintiff is the best judge of his bonafide requirement. Mr.
Pandey has sought to highlight pleadings in the plaint that suit
premises were required for extending tailoring business of Plaintiff's
daughter-in-law-Jayashree. Plaintiff subsequently amended the Plaint
to incorporate pleadings relating to ailment suffered by Jayashree. In
my view without going much into the issues of tailoring business of
Jayashree or ailment suffered by her, the premises in occupation of
Plaintiff cannot be termed as sufficient to accommodate 5 members of
family. The Defendant is merely a tenant in respect suit premises and
has been occupying the same for considerable period of time. Since
Plaintiff has made out a case for bonafide requirement Defendant
must move out from the suit premises. Mr. Pandey has relied upon
agreement executed between the parties on 29 August 2005. Perusal of
the said agreement would indicate that Defendant was permitted to
increase the height of Room No.1(suit premises) at the expense of
Defendant-tenant. It appears that under the agreement, Plaintiff has
agreed to permit Defendant to transfer the tenancy in respect of the
suit premises with the consent of the Plaintiff. In my view the
agreement has no relevance to the issue of bonafide requirement. The
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agreement at the highest would have been relevant for dealing with
allegation of unauthorised additions and alterations of permanent
nature to the suit premises, which ground has already been rejected
by both the Courts below.
9) After considering the overall conspectus of the case, I am
of the view that no case is made out for interference in the concurrent
findings recorded by the Small Causes Court and its Appellate Bench
on the issue of bonafide requirement of the Plaintiff.
10) Civil Revision Application is accordingly rejected.
[SANDEEP V. MARNE, J.]
20 August 2024
