Bombay High Court
Smt. Indira Rani Through C.A. U.N. ... vs Shri N.D. Mistry on 18 September, 2024
2024:BHC-AS:36973
Neeta Sawant WP-1468-1473-1470-1995-FC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1468 OF 1995
Indira Rani, through her C.A.
Uggarsen Nandlal Punjabi } .... Petitioner
(Original Plaintiff)
: Versus :
N.D. Mistry } .... Respondent
(Original Defendant)
WITH
WRIT PETITION NO. 1473 OF 1995
Indira Rani, through her C.A.
Uggarsen Nandlal Punjabi } .... Petitioner
(Original Plaintiff)
: Versus :
Harishchandra Murli } .... Respondent
(Original Defendant)
WITH
WRIT PETITION NO. 1470 OF 1995
Indira Rani, through her C.A.
Uggarsen Nandlal Punjabi } .... Petitioner
(Original Plaintiff)
: Versus :
S.A. Vedak } .... Respondent
(Original Defendant)
Page No.1 of 17
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Neeta Sawant WP-1468-1473-1470-1995-FC
__________
Mr. Pradeep Thorat with Ms. Aditi Naikare, for the Petitioner in Writ
Petition No.1468-1995.
Mr. Anilkumar Patil with Mr. Zeel Jain, for the Petitioner in WP-1468-1995
and WP-1473-1995.
Ms. Vaishali P. Benere with Mr. Kamalakar L. Koli, for the Respondent in all
petitions.
__________
CORAM: SANDEEP V. MARNE, J.
Reserved On: 6 September 2024.
Pronounced On: 18 September 2024.
JUDGMENT :
1) These petitions are filed by Plaintiff-Landlady challenging the
decrees passed by the Appellate Bench of the Small Causes Court on 6
August 1994 dismissing the Appeals and confirming the decrees dated 25
February 1987 passed by the learned Judge of the Small Causes Court
dismissing the suits filed by the Petitioner seeking eviction of the
Respondents/Original Defendants.
2) The structures named 'Indira Chawl' bearing Nos. A-4, A-3 and A-5
respectively are owned by the Petitioner/Plaintiff. Various rooms situated
in the said Chawl are let out to the Respondents/Defendants as monthly
tenants. Room No.7/A-4 are the suit premises in Writ Petition No.1468/1995
arising out of R.A.E. Suit No.2406 of 1978 in which Respondent-N.D. Mistry
was inducted as a tenant. Room No.9/A-3 are the suit premises in Writ
Petition No.1473/1995 arising out of R.A.E. Suit No.2408 of 1978, in which
Respondent-Harischandra Murli was inducted as a tenant. Room No. 11/A-3
are the suit premises in Writ Petition No.1470/1995 arising out of R.A.E.
Suit No.2414 of 1978, in which Respondent-S.A. Vedak was inducted as a
tenant. The monthly rent payable was Rs. 34.25/-. Plaintiff-landlady
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claimed that Respondents/ Defendants were in arrears of rent and
accordingly issued demand notices dated 13 September 1977 for demand of
arrears of rent from 1 March 1976. The tenancy was also sought to be
terminated on the ground of default of payment of rent. Though the
notices were replied on 10 October 1977, it appears that Defendants did not
pay the arrears of rent.
3) Petitioner-Plaintiff filed R.A.E. Suit No.2406 of 1978 (N.D.
Mistry), R.A.E. Suit No.2408 of 1978 (Harischandra Murli), R.A.E. Suit
No.2414 of 1978 (S.A. Vedak) seeking recovery of possession of the suit
premises on the ground of arrears of rent and unauthorised additions and
alterations. Defendants filed Written Statement claiming that the rent
claimed was excessive. Further defence was taken by the Defendants that
the suit premises were located on lands declared as 'vacant lands' under the
provisions of The Maharashtra Vacant Lands (Prohibition of Unauthorised
Occupation and Summary Eviction) Act, 1975 (Vacant Lands Act) and that
therefore the Defendants were not liable to pay the rent in respect of the
suit premises. Both the sides led evidence in support off their respective
claims. By judgment and decrees dated 25 February 1987, the learned Judge
of the Small Causes Court dismissed all the three suits holding that though
the Defendants had not paid the rent, the default was not deliberate as the
Defendants were under the bonafide impression that the concerned land
was declared as 'vacant land' under the provisions of the Vacant Lands Act.
The ground of unauthorized additions and alterations was rejected holding
that no evidence was produced by the Plaintiff. Though there were no
pleadings in the Written Statement about the land being declared as Slum
under the provisions of the Maharashtra Slum Areas (Improvement,
Clearance and Redevelopment) Act, 1971 (Slums Act), the Trial Court held
that the concerned land is Slum and that therefore it did not have
jurisdiction to entertain the Suit under Section 42 of the Slum Act.
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Petitioner-Plaintiff filed Appeals No.276/1987, 275/1987 and 359/1987
challenging the correctness of the judgment and orders dated 25 February
1987 passed by the Small Causes Court. By Judgment and Decrees dated 6
August 1994, the Appellate Bench of the Small Causes Court has dismissed
all the three Appeals. Petitioner-Plaintiff has accordingly filed the present
petitions challenging the decrees of the Appellate Bench dated 6 August
1994 by which the decrees of the learned Judge of the Small Causes Court
dated 25 February 1987 have been confirmed.
4) Mr. Pradeep Thorat, the learned counsel appearing for the
Petitioner in Writ Petition No.1468 of 1995 would submit that the learned
Judge of the Small Causes Court has erred in dismissing the suit despite the
ground of non-payment of rent being established. That despite
establishment of delay in payment of rent, the learned Judge unnecessarily
went into the reasons for such defaults holding that the non-payment of
rent was not deliberate or malafide or with ulterior motive. That once the
default in payment of rent is established under Section 12 of the Bombay
Rent Act, the Court does not have jurisdiction to go into the reasons for
default and the decree for eviction becomes eminent. In support of his
contention that the decree of eviction under Section 12(3)(a) is mandatory,
Mr. Thorat would rely upon judgment of the Apex Court in Vasumatiben
Gaurishankar Bhatt Versus. Naviram Manchharam Vora and others1.
5) Mr. Thorat would further submit that so called assumption on
the part of tenants about the land being declared as 'vacant land' for the
purpose of avoiding payment of rent was clearly misplaced and once
default notice was issued, the tenants were under statutory obligation to
make the payment or face the decree for eviction. That mere readiness and
willingness expressed in words by the tenant was insufficient and what is
AIR 1967 SC 405
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required under Section 12 of the Bombay Rent Act is only actual payment.
That in any case, the provisions of Vacant Lands Act have been struck down
and therefore the tenants were liable to pay the rent in respect of the suit
premises and negligence on their part in paying the same would
automatically result in passing of decree for eviction under Section 12 of
the Bombay Rent Act. So far as the issue of land being declared as 'Slum',
Mr. Thorat would submit that as on the date of institution of the suit, the
land was not declared as 'slum'. Despite accepting this position, the learned
Judge of the Small Causes Court has erroneously held that though the
Notification under the Slum Act was issued on 30 September 1979, the Act
came into existence in the year 1971 and that therefore the bar of
jurisdiction under Section 42 of the Slums Act would get attracted. That the
learned Judge failed to appreciate the provisions of Section 22 of the Slums
Act which merely requires acquiring of prior permission of Competent
Authority in the event of land being declared as 'Slum' as on the date of
institution of the suit. That Section 42 of the Slum Act has erroneously been
applied by the learned Judge. That the burden of proving that the land is
'slum' as on the date of institution of the suit is on tenant, Mr. Thorat
would rely upon judgment of the Apex Court in Neelakantan & Ors. Versus.
Mallika Begum2.
6) Mr. Thorat would further submit that instead of correcting the
errors committed by the learned Judge of the Small Causes Court, the
Appellate Court has put a premium on the said errors by holding that since
application for fixation of standard rent was filed, the tenants were
justified in not paying the rent. That the Appellate Court erroneously
considered the provision for bar of execution under Section 22 by mixing
the same with the issue of existence of declaration on the date of
(2002) 2 SCC 440
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institution of the suit. Mr. Thorat would pray for setting aside the
impugned decrees.
7) Mr. Anilkumar Patil, the learned counsel appearing for the
Petitioner in Writ Petition Nos.1468 of 1995 and 1473 of 1995 would adopt
the submissions of Mr. Thorat. Additionally, he would submit that the
eviction decrees have been passed in suits instituted by the same landlady
against other tenants viz, Harijiwan Somachand Panchal and Shreedhar A.
Shetty and that the decrees are upheld by this Court. He would therefore
submit that the present suits also deserve to be decreed.
8) The petitions are opposed by Ms. Vaishali Benere, the learned
counsel appearing for the Respondents/Defendants, who would submit that
the Small Causes Court and its Appellate Bench have rightly inferred
readiness on the part of the tenants to pay the rent. That once there was a
declaration of vacant land under the provisions of the Vacant Lands Act,
the tenants were not expected to pay rent and were accordingly advised by
their respective advocates to stop paying rent. That there was prohibition
on landlady under the Vacant Lands Act to accept rent. That as on the date
of institution of the suit, provisions of Vacant Lands Act were in vogue and
that therefore since there was no liability to pay rent, there was no delay
on the part of the tenants. The suit itself was not maintainable in absence
of any default. Subsequent setting aside of the provisions of the Vacant
Lands Act, does not validate the invalid suit instituted by the Plaintiffs.
Therefore, the ground of arrears of rent has rightly been rejected by both
the Courts below.
9) Ms. Benere would further submit that during pendency of the
present suits and before striking off the provisions of the Vacant Lands Act,
a declaration of slum was made in the year 1979. That challenge set up by
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the landlady to the slum declaration was repelled by the Trial Court. The
landlady has filed Writ Petition in this Court to which the tenants are
impleaded as parties and their possession is protected. That the said
petitions are pending. That therefore since the land continues to be
declared as 'slum' in absence of Slum Notification being set aside by any
Court of competent jurisdiction, no suit for eviction of occupants of
structures located on Slum land could be maintained before the Small
Causes Court. That Respondents are protected occupants under the
provisions of the Slums Act and are entitled to be rehabilitated. That
therefore the Small Causes Court and its Appellate Bench have rightly
dismissed the suits. She would therefore submit that no case is made out
for interference in the concurrent findings recorded by both the Courts
below. She would pray for dismissal of the petitions.
10) Rival contentions of the parties now fall for my consideration.
11) Though the suits were initially instituted on the ground of
default in payment of rent and unauthorised additions and alterations,
what is sought to be urged before me during the course of final hearing of
the petitions is the ground of default in payment of rent. It is therefore not
necessary to examine correctness of the findings recorded by the Small
Causes Court and its Appellate Bench on the issue of unauthorized
additions and alterations.
12) There is no factual dispute to the position that Defendants
stopped paying rent in respect of the suit premises from 1 March 1976.
Both, the Trial Court and the Appellate Bench have also proceeded on a
footing that the tenants did not pay rent to the landlady from 1 March
1976. In this regard, finding recorded by the Trial Court in para-44 of its
judgment reads thus:
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44. It is an admitted fact by all the defendant that they did not pay the rent
to the landlady rightly from 1975-76 and this was not paid because the suit
land was declared as Vacant Land under the provisions of Vacant Land Act at
that time.
(emphasis added)
13) However, The Trial Court has sought to justify the act of non-
payment of rent by holding that, without prejudice, the tenants were ready
and willing to pay standard rent and permitted increases which finding is
recorded on the basis of replies given to the demand notice. The Trial Court
thereafter referred to the rejoinder of the landlady dated 5 December 1977
in which reference was made to filing of Writ Petition challenging the
provisions of the Vacant Lands Act. The Trial Court held that though the
provisions of Vacant Lands Act were struck off by this Court and the
Supreme Court, the tenants were justified in not paying the rent during the
pendency of the said dispute. The Trial Court held that the Defendants were
always ready and willing to pay the rent to the landlady and that there was
no malafide intention on their part. The Trial Court therefore summed up
its conclusion holding that the Defendants did not deliberately stop paying
the rent to the landlady and that they had bonafide dispute about payment
of rent. On these findings, the Trial Court proceeded to reject the ground of
default in payment of rent.
14) The Appellate Court has confirmed the findings of the Trial
Court in respect of the ground of arrears of rent. The Appellate Court held
that the tenants were not negligent in responding to the demand of rent
and that they had exercised their right to file standard rent applications
before promulgation of the Ordinance. The Appellate Bench has also held
that the tenants were under impression that the provisions of the Vacant
Lands Act made payment of rent unnecessary. This is how the Appellate
Bench also proceeded to reject the ground of default.
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15) Both the Courts are ad-idem about the factum of non-payment
of rent by the tenants and striking off the provisions of the Vacant Lands
Act. The issue is whether the so-called impression of tenants about their
liability to pay rent on account of provisions of the Vacant Lands Act,
would justify their action in committing default in payment of rent and
whether their impression has any relevance to the mandatory provisions of
Section 12 of the Bombay Rent Act. The provisions of Section 12 before
amendment in the year 1987 reads thus:
12. 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 a tenant on the ground of non-payment of the standard rent or
permitted increases due, until the expiration of one month 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) (a) Where the rent is payable by the month and there is no dispute
regarding the amount of standard rent or permitted increases, if such
rent or increases are in arrears for a period of six months or more and the
tenant neglects to make payment thereof until the expiration of the
period of one month after notice referred to in sub-section (2), the Court
shall pass a decree for eviction in any such suit for recovery of possession.
(b) No decree for eviction shall be passed by the Court in any suit, if, on
the first day of hearing of the suit or on or before such other date as the
Court may fix, the tenant pays or tenders in Court the standard rent and
permitted increases then due and thereafter continues to pay or tenders
in Court regularly such rent and permitted increases till the suit is finally
decided and also pays costs of the suit as directed by the Court.
(4)Pending the disposal of any such suit, the Court may out of any amount
paid or tendered by the tenant pay to the landlord such amount towards
payment of rent or permitted increase due to him as the Court thinks fit.
Explanation I - In any case where there is a dispute as to the amount of
standard rent of permitted increases recoverable under this Act the
tenant shall be deemed to be ready and willing to pay such amount if,
before the expiry of the period of one month after notice referred to in
sub-section (2), he makes an application to the Court under sub-section
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(3) of section 11 and thereafter pays or tenders the amount of rent or
permitted increases specified in the order made by the Court.
Explanation II .- For the purposes of sub-section (2), reference to "standard
rent" and "permitted increase" shall include reference to "interim
standard rent" and "interim permitted increase" specified under sub-
section (3) or (4) of section 11.
16) The statutory scheme under Section 12 of the Bombay Rent
Act is such that once the default occurs, the tenant is given an opportunity
to make good the default after service of notice under Section 12(2) of the
Act. If the tenant is liable to pay rent on monthly basis and if the default is
in respect of the period exceeding six months and the tenant fails to pay
the rent within the time specified in the notice issued under Section 12(2),
the eviction under Section 12(3)(a) becomes eminent on account of use of
the words 'shall' under Section 12(3)(a).
17) The Apex Court had occasion to interpret the words 'negligence
to make payment' in Vasumatiben Gaurishankar Bhati (supra) in which it is held
that once notice under Section 12(2) of the Act is issued and the tenant
neglects to comply with the notice, Section 12(3)(a) comes into operation. It
is held in para-8 of the judgment as under :
8. Mr. Pai then contends that Section 12(3)(a) seems to suggest that the
neglect or failure of the tenant to make the payment of arrears must be
subsequent to the date on which the amending Act came into force. He
relies on the fact that Section 12(3)(a) refers to the case where the tenant
"neglects to make payment" of the rent. The section does not say "has
neglected to make payment", says Mr. Pai. In our opinion, there is no
substance in this argument. The use of the word "neglect" in the present
tense has to be construed in the light of the fact that the clause refers to
the tenant neglecting to make payment of the rent until the expiration of
one month next after receipt of the notice' and that clearly would have
made the use of the past tense inappropriate. The position, therefore, is
that if notice has been served as required by Section 12(2) and the tenant
is shown to have neglected to comply with the notice until the expiration
of one month thereafter, Section 12(2) is satisfied and Section 12(3) (a)
comes into operation.
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18) Also, it appears that the issue of effect of the subsequent
striking of the provisions of the Vacant Lands Act has been considered by
this Court while deciding Civil Revision Applications filed by two similarly
placed tenants in the same Chawl of which the Petitioner was the landlady.
In Civil Revision Application No.312 of 2009 (Harjivan Somachand Panchal
Versus. Indirarani U. Punjabi) this Court has passed the following order on 5
November 2009:
1. The Civil Revision Application has been filed against the appellate order of
the Small Causes Court. The appeal bench has reversed the findings of the
trial Court and has decreed the suit. It has been held that the demand notice
for payment of arrears of rent has been issued to the tenant legally. It has
also further been held that the tenant has never shown his readiness and
willingness to pay the rent.
2. It is submitted on behalf of the tenant-applicant that the notice was issued
during the period when the Maharashtra Vacant Lands (Prohibition of
Unauthorised Occupation and Summary Eviction) Act 1975 was in force. It is
submitted that in this view of the matter the notice issued by the landlord is
illegal.
3. Undisputedly, the aforesaid Act has been struck down by a judgment of the
apex Court in the State of Maharashtra v/s. Kamal Sukumar Durgule & Ors.,
AIR 1985 SC 119. The Court has held that the Act was ultra vires the
Constitution as it was violative of articles 14 an 19(1)(f) of the Constitution of
India. While striking it down, the Supreme Court observed that the Act did
not violate the provisions of Article 31(1). It was also observed that the Act
did not provide for transfer of ownership of vacant lands to the State or to a
Corporation nor did it vest in the State the right of the owner or occupier of
the lands to recover rent or the compensation for use and occupation of such
lands.
4. Thus, the notice issued by the landlord has been held to be valid. The
submission, regarding the issuance of the notice being in breach of the
Maharashtra Vacant Lands (Prohibition of Unauthorised Occupation and
Summary Eviction) Act 1975, is untenable.
5. Civil Revision Application is dismissed.
6. On the application of the learned advocate for the applicants, this order is
stayed for a period of six weeks from today subject to the usual undertakings
being furnished by the applicants and all adults staying in the premises
within a period of two weeks from today.
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19) Similarly, in Civil Revision Application No.345/2009 (Shreedhar
A. Shetty V/s. Indira J. Punjabi) this Court has passed the following order on 25
August 2010:
1 Heard the learned Advocate for the petitioners. Petitioners are the legal
representatives of the original defendants/tenants. The respondent is the
landladyplaintiff. Notice of demand of arrears of rent was issued by the
respondent/plaintiff on 13.9.1977 where arrears demanded were for a
period of more than six months. Notice was admittedly served to the
petitioners. Thereafter a suit for possession was filed by the respondent
under the provisions of Section 12 of the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947 (Hereinafter referred to "as the
said Act"). The trial Court decreed the suit and the Appeal Bench of the
court of Small Causes has confirmed the decree for possession.
2 The submission of the learned Advocate for the petitioners is that on
the date on which suit notice was issued, the provisions of the
Maharashtra Vacant Lands Act, 1975 were applicable to the suit premises
and therefore, the suit notice itself was illegal. He submitted that a fresh
notice was not issued by the respondent landlady. The 2nd contention is
that the land below the suit premises has been declared as a slum. The
suit was filed without taking prior permission of the competent authority.
The 3rd contention is that the petitioner has always shown readiness and
willingness to pay the standard rent.
3 I have considered the submissions. Admittedly, notice of demand by
which a demand was made for arrears of rent for more than six months
was served to the petitioner. The petitioner did not tender the rent
demanded within the statutory period. The petitioner did not deposit the
said amount in the application for fixing of standard rent which was
allegedly pending on that date. The petitioner did not move the Court for
fixing the interim rent. Therefore, there was no choice for the Courts
below but to pass a decree for possession.
4 As far as the applicability of the provisions of Vacant Lands Act is
concerned, the said enactment was declared as ultravires the Constitution
of India by this Court and the decision of this Court has been confirmed
by the Apex Court. Therefore, notice of demand cannot be said to be
illegal.
5 As far as contention regarding declaration of slum is concerned, there is
a finding of fact recorded by the Appellate Court that the declaration of
slum by this Court was stayed in a writ petition.
6 In the circumstances, it is not possible to find fault with concurrent
findings of fact recorded by the courts below. Civil Revision Application is
accordingly rejected. On the prayer made by the learned Advocate for the
petitioner, it is directed that the decree for possession shall not be
executed for a period of eight weeks from today subject to condition that
the petitioners will not create any third party rights or will not part with
possession.
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20) In my view, both the Trial Court as well as its Appellate Bench
have grossly erred in rejecting the ground of default by holding that the
Defendants were ready and willing to pay the rent. Both the Courts did not
appreciate the statutory scheme under Section 12 of the Bombay Rent Act.
There is no discretion vested in the Court to go into the reasons pleaded by
the tenants for non-payment of rent. Whatever may be the reason for
tenants neglecting to pay the rent, once the Notice under Section 12(2) of
the Act is not satisfied within the statutory time period, no Court can
decline passing of decree under Section 12(3)(a) of the Act. The tenants in
the present case have taken risk of not paying the rent to the landlady after
receipt of demand notice and therefore they have invited eviction decree
under Section 12(3)(a).
21) So far as the provisions of the Slum Act are concerned, the
Trial Court has erred in relying on the provisions of the Section 42 of the
Slum Act for holding that it did not have jurisdiction to entertain the suit.
The Trial Court failed to appreciate the provisions of Section 22 of the Slum
Act which reads thus :
22. Proceedings for eviction of occupiers [or for issue of distress warrant]
not to be taken without permission of Competent Authority.
(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 proceeding
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 Causes Court
under Chapter VIII of the Presidency Small Causes Courts Act,
1882, in its application to the 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
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Maharashtra, for a distress warrant for arrears of rent against any
occupier of a house or premises in a slum area.]
(1A) Notwithstanding anything contained in sub-section (1) as in force
before the commencement of the Maharashtra Slum Areas (Improvement,
Clearance and Redevelopment) (Amendment) Act, 1986 (hereinafter in
this section referred to as 'the amendment Act') or 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)execute any decree or order obtained in any suit or proceeding
instituted during the period commencing from the 30th day of
September 1985 being the date of the expiry of the Maharashtra
Vacant Lands (Further Interim Protection to Occupiers from
Eviction and Recovery of Arrears of Rent) Act, 1980 and the date of
commencement of the Amendment Act, for eviction of an
occupier from any building or land in a slum area (which area was
earlier purported to be covered by the definition of 'vacant land'
in clause (f) of section (2) of the Maharashtra Vacant Lands
(Prohibition of Unauthorised Occupation and Summary Eviction)
Act, 1975 or for recovery of any arrears of rent or compensation
from such occupier, or for both; or
(b)apply to any Judge or the Registrar of the Small Causes Court
under Chapter VIII of the Presidency Small Causes Courts Act,
1882, in its application to the State of Maharashtra, or to any
Court of Small Causes under Chapter IV-A of the Provincial Small
Causes Courts Act, 1887, in its application to the State of
Maharashtra, for a distress warrant for arrears of rent against any
such occupier of a house or premises in any such slum area.]
(2)Every person desiring to obtain the permission referred to in sub-
section (1) [or (1-A)] shall make an application in writing to the
Competent Authority in such form and containing such particulars as may
be prescribed.
(3)On receipt of such application, the Competent Authority, after giving
an opportunity to the parties of being heard and after making such
summary inquiry into the circumstances of the case as it thinks fit, shall,
by order in writing, either grant or refuse to grant such permission.
(4)In granting or refusing to grant the permission [under clause (a) or (b)
of sub-section (1)] [or clause (a) of sub-section (1-A)] the Competent
Authority shall take into account the following factors, namely :-
(a)whether alternative accommodation within the means of the
occupier would be available to him, if he were evicted;
(b)whether the eviction is in the interest of improvement and
clearance of the slum area;
[b-1) whether, having regard to the relevant circumstances of
each case, the total amount of arrears of rent or compensation
and the period for which it is due and the capacity of the occupier
to pay the same, the occupier is ready and willing to pay the
whole of the amount of arrears of rent or compensation by
reasonable instalments within a stipulated time;]
(c)any other factors, if any, as may be prescribed.
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(4A) (a) In granting or refusing to grant the permission under clause (c) of
sub-section (1) [or clause (b) of sub-section (1A)] the Competent Authority
shall take into account the following factors, namely
(i)what is the amount of rent and for what period it is due;
(ii)whether a notice of demand referred to in the proviso to sub-
section (1) of section 53 of the Presidency Small Causes Courts Act,
1882 or in the proviso to sub-section (1) of section 27B of the
Provincial Small Causes Courts Act, 1887, as the case may be, has
been duly given to the occupier liable to pay the arrears of rent;
(iii)whether the occupier is willing to pay arrears within a
stipulated time;
(iv)any other factors, if any, as may be prescribed.
(b)If, within a period of [six months] from the date of receipt of any
application for permission under clause (c) of sub-section (1), [or clause
(b) of subsection (1A)] the Competent Authority does not refuse to grant
the permission, it shall be deemed to have been granted at the expiration
of such period.]
(5)Where the Competent Authority refuses to grant the permission
[under] any of the clauses of sub-section (1) [or (1A)] it shall record a
brief statement of the reasons for such refusal, and furnish a copy thereof
to the applicant.
22) Thus, what is needed under the provisions of Section 22 is
mere permission of Competent Authority for institution of the suit if the
land, on which the suit premises are located is declared as 'slum area' on
the date of institution of the suit. In the present cases, the suits are
instituted in the year 1978, whereas the slum declaration came to be made
vide Notification dated 30 April 1979. Therefore, the bar under Section 22 of
the Slums Act did not apply to the present suits. The Appellate Bench has
considered the provisions of Section 22 and has unnecessarily concentrated
on Clause (b) of sub-section (1) of Section 22 which relates to execution of
decree. As and when decree is passed, it would be for the tenants to rely
upon the provisions of Section 22(1)(b) at the time of execution of decree, if
permissible in law. All questions in that regard are left open. However, by
referring to the provisions of Section 22(1)(b), the Appellate Court could
not have held that the decree for eviction could not be passed in non-
18 September 2024
Neeta Sawant WP-1468-1473-1470-1995-FC
existence of any Notification declaring the land to be ' Slum' as on the date
of institution of the suit.
23) In my view, therefore both the Trial Court as well as its
Appellate Bench have grossly erred in dismissing the suits despite noticing
non-payment of rent by the tenants. Default in payment of rent under
Section 12 of the Bombay Rent Act is conclusively proved and therefore the
decree for eviction was eminent in the facts and circumstances of the
present case.
24) Mere readiness and willingness on the part of the tenants to
pay the rent is not sufficient and what law requires under Section 12(3)(a)
is actual payment of rent. It is not for the Courts to go into the reasons
which prevented tenants from paying the rent. The law has provided
opportunity to the tenants under Section 12(2) which pose prohibition on
the landlord from institution of eviction suit without issuing a notice of 30
days on the tenant for making good the default. In the present case, after
receipt of notices, instead of making good the default and avoid the decree
for eviction, Defendants took a stand that they were not liable to pay the
rent. In my view, therefore the ground of default got clearly established
and the Trial Court had no option but to pass decree for eviction under
Section 12(3)(a) of the Bombay Rent Act.
25) In my view therefore, the Small Causes Court and its Appellate Bench
have erred in dismissing the Suit. The errors committing by them are so
palpable that interference by this Court in exercise of writ jurisdiction is
warranted.
18 September 2024
Neeta Sawant WP-1468-1473-1470-1995-FC
26) Consequently, the Writ Petitions succeed and I proceed to pass the
following order:
(i) Judgment and Decrees dated 25 February 1987 passed by the
learned Judge of the Small Causes Court in R.A.E. Suit Nos.
2406 of 1978, 2408 of 1978 and 2414 of 1978, as well as the
decrees passed by the Appellate Bench on 6 August 1994 in
Appeal Nos. 276/1987, 275/1987 and 359/1987 are set aside.
(ii) R.A.E. Suit Nos. 2406 of 1978, 2408 of 1978 and 2414 of 1978
are decreed on the ground of default in payment of rent.
(iii) Respondents/Defendants shall handover possession of the
suit premises within a period of three months to the
Plaintiff.
(iv) Plaintiff shall be entitled to enquiry into mesne profits under
the provisions of Order 20 Rule 12(C) of the Code.
27) With the above directions, the suits are decreed with costs.
Writ Petitions are allowed. Rule is made absolute.
Digitally
signed by
NEETA
NEETA SHAILESH [SANDEEP V. MARNE, J.]
SHAILESH SAWANT
SAWANT Date:
2024.09.18
14:54:08
+0530
18 September 2024
