Dattaram S.Vichare Vs. Thukaram S.Vichare & Ors.
EmailAppeal: Civil Appeal No. 1802 of 1991 (From the Judgment and Order 3.12.90 of the Bombay High Court in W.P. No. 123 of 1989)
Petitioner: Dattaram S.Vichare
Respondent: Thukaram S.Vichare & Ors.
Apeal: Civil Appeal No. 1802 of 1991 (From the Judgment and Order 3.12.90 of the Bombay High Court in W.P. No. 123 of 1989)
Judges: V.N. KHARE & S.N. PHUKAN, JJ.
Date of Judgment: Dec 08, 1999
Appearances:
Mr. Uma Datta, Advocate for the appellant.
Mr. R.N. Keshwani, Advocate for the Respondents.
Head Note:
TENANCY LAWS
Maharashtra Housing and Area Development Act
Section 66 – Notice – Requirement – Presumption of notice – Tenant found not residing – Real brother in occupation – Notice of proceedings for regularisation served – If sufficient to constitute notice for eviction. Held that the Act does not pro-vide for any such presumption. A notice for eviction under 66 is sine-qua-non for eviction proceedings.
Maharashtra Housing and Area Development Act
Section 66 – Notice – Requirement – Presumption of notice – Tenant found not residing – Real brother in occupation – Notice of proceedings for regularisation served – If sufficient to constitute notice for eviction. Held that the Act does not pro-vide for any such presumption. A notice for eviction under 66 is sine-qua-non for eviction proceedings.
Held:
In the present case, there is no evidence on record to show that any notice, as contemplated under Section 66 of the Act, was at all served on the appellant. In the absence of any such notice no proceedings under Section 66 of the Act could have been taken for eviction of the appellant. Service of notice on the tenant is sine qua non for taking proceeding for his eviction. In the absence of notice, the proceeding for eviction of the tenant is invalid and as a result there would be no vacancy in the premises which may not warrant initiating any proceeding for regulariza-tion of tenancy in favour of third party. Further under the Act no such presumption is created about service of notice the serv-ice of notice in the regularization proceedings cannot be taken as service on the appellant in eviction proceedings. The order of eviction passed by the Competent Authority was void and ineffec-tive. (Para 8)
JUDGEMENT:
V.N.KHARE, J.
1. The appellant herein was allotted a one-room premises, being tenement No. 16/1097, situated at Abhuyadaya Nagar, Bombay in the year 1965 by the Bombay Housing and Area Development Board (hereinafter referred to as ‘the Board’), established and consti-tuted under the Maharashtra Housing and Area Development Act (hereinafter referred to as the ‘Act’). At the time of allotment, the appellant was required to fill and submit Form ‘C’, indicat-ing therein, the names of persons who would be occupying the premises. The appellant, in compliance thereof, submitted Form ‘C’, wherein he indicated that ~4~ Thukaram S Vichare, who is his own real brother and his wife, as the persons forming part of his family, would be residing in the said premises. This Form ‘C’, submitted by the appellant, was accepted by the Board.
2. It appears that the officers of the Board inspected the prem-ises and in their Inspection Reports dated 13.11.85 and 23.12.86, it was reported that the appellant was not residing in the prem-ises and he has sublet the premises to his own brother. In pur-suance of the said reports, a notice dated 15.10.86 was alleged to have been served on the appellant wherein the appellant was required to show cause why the tenancy in respect of the premises in dispute be not regularized in favour of his brother, namely Shri Thukaram S Vichare who was in occupation of the premises. It appears that the appellant did not participate in the said pro-ceedings before the Competent Authority. Consequently, the Com-petent Authority, on 20th March, 1987, ordered the eviction of the appellant from the premises and regularized the tenancy in favour of respondent – Shri Thukartam S.Vichare.
3. The appellant, aggrieved against the order of the Competent Authority preferred an appeal before the Appellate Authority constituted under the Act. The Appellate Authority found that no notice under Section 66 of the Act having been served on the appellant tenant, the order for his eviction was illegal and void. Consequently, the appeal was allowed. Aggrieved, the re-spondent filed a writ petition before the High Court under Arti-cle 227 of the Constitution, challenging the Appellate Order dated 5.1.89. The High Court took the view that the appellant having sublet the premises to the respondent, the Competent Authority was justified in terminating the tenancy of the appell-ant and settling the tenancy in favour of the respondent. The High Court also was of the view that since the appellant was served with the notice in the proceeding for regularizing the tenancy in favour of the respondent, the service of notice in respect of proceedings for his eviction has to be presumed. Consequently, the High Court allowed the writ petition filed by the respondent. It is against the aforesaid judgment the appell-ant is in appeal before us.
4. Learned counsel appearing on behalf of the appellant has raised two submissions. The first submission is that, in the absence of any notice on the appellant for his eviction as re-quired under Section 66 of the Act, the entire proceedings for his eviction and regularization of tenancy in favour of the respondent was illegal and void.
5. The second submission is that the appellant, in Form ‘C’ having already informed the Board that his brother, namely re-spondent Thukaram S Vichare and his wife would be residing in the said premises, and the same having been accepted by the Board, it was not open to the Board to question that the appellant has sublet the premises to his own brother.
6. After we heard learned counsel for the parties and perused the record, we find that both the submissions have merit. To appreci-ate the arguments of the parties, it is relevant to set out the provisions of the Act which are extracted below:-
Section 66 of the Act reads as under :
“66. Power to evict certain persons from Authority premises
(1) If the Competent Authority is satisfied –
(a) that the person authorized to occupy any Authority premises has – (i) not paid rent or compensation or amount lawfully due from him in respect of such premises for a period of more than two months, or
(ii) Sub-let, without the previous permission of the Authority, the whole or any part of such premises, or
(iii) committed, or is committing, any act which is destructive, or permanently injurious to such premises, or
(iv) made, or is making, material addition to, or alteration in such premises without the previous permission of the Authority, or
(v) otherwise acted in contravention of any of the terms, express or implied, under which he is authorized to occupy such premises,
or
(vi) failed to vacate the premises required by the Authority for the purpose of implementing any plan or project for the sale of tenements and to accept the alternative accommodation offered by the Authority;
(b) that any person is in unauthorized occupation of any Authori-ty premises:
the Competent Authority may, for reasons to be recorded in writing, by notice served (i) by post, or (ii) by affixing a copy of it on the outer door or some other conspicuous part of such premises or (iii) in such other manner as may be prescribed, order that persons, as well as any other person, who may be in occupation of the whole or any part of the premises, to vacate the premises in unauthorized occupation, within 24 hours of the date of service of notice, and in any other case within a period of seven days of the date of such service.
(2) Before an order under sub-section (1) is made against any person, the Competent Authority shall issue, in the manner hereinafter provided, a notice in writing calling upon all per-sons concerned to show cause within ten days why an order of eviction should not be made. The notice shall –
(a) specify the grounds on which the order of eviction is proposed to be made ; and
(b) require all persons concerned, that is to say, all persons who are or may be in occupation of, or claim interest in, the Author-ity premises, to show cause against the proposed order, on or before such date as is specified in the notice.
If such person makes an application to the Competent Authority for the extension of the period specified in the notice, such Authority may grant the same on deposit of one hundred rupees and on such terms as to payment and recovery of the amount claimed in the notice, such Authority thinks fit.
Any written statement put in by any person and documents produced in pursuance of the notice, shall be filed with the record of the case, and such persons shall be entitled to appear before the Competent Authority by advocate, attorney or other legal practi-tioner.
The notice to be served under this sub-section shall be served in the manner provided for the service of another under sub-section (1); and thereupon, the notice shall be deemed to have been duly given to all persons concerned.
7. The aforesaid provisions show that the Competent Authority is empowered to pass an order of eviction against a tenant if it is found that the tenant has sub-let the premises allotted to him without previous permission of the Competent Authority. In case any proceeding is to be taken for eviction of a tenant on the ground of subletting, the Competent Authority is required to serve a notice to that effect to the tenant.
8. In the present case, what we find is that there is no evidence on record to show that any notice, as contemplated under Section 66 of the Act, was at all served on the appellant. In the absence of any such notice no proceedings under Section 66 of the Act could have been taken for eviction of the appellant. A proceeding for eviction against a tenant to be valid depends upon service of notice which is required to be given to the tenant. In fact service of notice on the tenant is sine qua non for taking pro-ceeding for his eviction. If it is found that there was no notice to the tenant, the proceedings for his eviction is totally with-out jurisdiction and any order for eviction of the tenant in pursuance thereof would be nullity. It was urged on behalf of the respondent’s counsel that the appellant having been served with the notice in the proceedings for regularization of tenancy in favour of the respondent, it would be presumed that he was served with the notice in eviction proceedings also. This argument of learned counsel runs contrary to the expressed provisions of the Act. The provisions of the Act contemplate two independent pro-ceedings followed by service of notices – (a) one in respect of proceeding for eviction of the tenant; and (b) other for regular-ization of tenancy. Both the proceedings can be initiated only on service of notice on the tenant. In the absence of notice, the proceeding for eviction of the tenant is invalid and as a result there would be no vacancy in the premises which may not warrant initiating any proceeding for regularization of tenancy in favour of third party. Further under the Act no such presumption is created about service of notice as held by the High Court. Under such circumstances, the service of notice in the regularization proceedings cannot be taken as service on the appellant in evic-tion proceedings. In this case we also do not find any proceed-ings having been taken for eviction of the appellant as contem-plated under Section 66 of the Act. We are, therefore, of the view that the order of eviction passed by the Competent Authority was void and ineffective.
9. So far as the second submission is concerned, a tenant can be evicted on the ground of sub-letting when he sub-lets the premis-es without the previous permission of the Competent Authority. In the present case, at the time of allotment, the appellant submit-ted Form ‘C to the Board, wherein he specifically indicated that his brother, namely the respondent, along with his wife would be occupying the premises. The Board accepted the said Form ‘C’ and allotted the premises to the appellant. The Board after having permitted the appellant’s brother to reside in the premises it was not open to it to terminate the tenancy of the appellant on the ground that he has sublet the premises to his brother. We, therefore, find that the ground on which appellant’s eviction was ordered was illegal. Since there was no vacancy, there was no question of regularization of tenancy in favour of the respond-ent. Consequently, the order passed by the Competent Authority regularizing the tenancy in favour of the respondent was also illegal and void.
10. For the aforesaid reasons the order and judgment of the High Court is not sustainable in law. We accordingly set aside the judgment and order of the High Court under appeal. The appeal is allowed. There shall be no order as to costs.
1. The appellant herein was allotted a one-room premises, being tenement No. 16/1097, situated at Abhuyadaya Nagar, Bombay in the year 1965 by the Bombay Housing and Area Development Board (hereinafter referred to as ‘the Board’), established and consti-tuted under the Maharashtra Housing and Area Development Act (hereinafter referred to as the ‘Act’). At the time of allotment, the appellant was required to fill and submit Form ‘C’, indicat-ing therein, the names of persons who would be occupying the premises. The appellant, in compliance thereof, submitted Form ‘C’, wherein he indicated that ~4~ Thukaram S Vichare, who is his own real brother and his wife, as the persons forming part of his family, would be residing in the said premises. This Form ‘C’, submitted by the appellant, was accepted by the Board.
2. It appears that the officers of the Board inspected the prem-ises and in their Inspection Reports dated 13.11.85 and 23.12.86, it was reported that the appellant was not residing in the prem-ises and he has sublet the premises to his own brother. In pur-suance of the said reports, a notice dated 15.10.86 was alleged to have been served on the appellant wherein the appellant was required to show cause why the tenancy in respect of the premises in dispute be not regularized in favour of his brother, namely Shri Thukaram S Vichare who was in occupation of the premises. It appears that the appellant did not participate in the said pro-ceedings before the Competent Authority. Consequently, the Com-petent Authority, on 20th March, 1987, ordered the eviction of the appellant from the premises and regularized the tenancy in favour of respondent – Shri Thukartam S.Vichare.
3. The appellant, aggrieved against the order of the Competent Authority preferred an appeal before the Appellate Authority constituted under the Act. The Appellate Authority found that no notice under Section 66 of the Act having been served on the appellant tenant, the order for his eviction was illegal and void. Consequently, the appeal was allowed. Aggrieved, the re-spondent filed a writ petition before the High Court under Arti-cle 227 of the Constitution, challenging the Appellate Order dated 5.1.89. The High Court took the view that the appellant having sublet the premises to the respondent, the Competent Authority was justified in terminating the tenancy of the appell-ant and settling the tenancy in favour of the respondent. The High Court also was of the view that since the appellant was served with the notice in the proceeding for regularizing the tenancy in favour of the respondent, the service of notice in respect of proceedings for his eviction has to be presumed. Consequently, the High Court allowed the writ petition filed by the respondent. It is against the aforesaid judgment the appell-ant is in appeal before us.
4. Learned counsel appearing on behalf of the appellant has raised two submissions. The first submission is that, in the absence of any notice on the appellant for his eviction as re-quired under Section 66 of the Act, the entire proceedings for his eviction and regularization of tenancy in favour of the respondent was illegal and void.
5. The second submission is that the appellant, in Form ‘C’ having already informed the Board that his brother, namely re-spondent Thukaram S Vichare and his wife would be residing in the said premises, and the same having been accepted by the Board, it was not open to the Board to question that the appellant has sublet the premises to his own brother.
6. After we heard learned counsel for the parties and perused the record, we find that both the submissions have merit. To appreci-ate the arguments of the parties, it is relevant to set out the provisions of the Act which are extracted below:-
Section 66 of the Act reads as under :
“66. Power to evict certain persons from Authority premises
(1) If the Competent Authority is satisfied –
(a) that the person authorized to occupy any Authority premises has – (i) not paid rent or compensation or amount lawfully due from him in respect of such premises for a period of more than two months, or
(ii) Sub-let, without the previous permission of the Authority, the whole or any part of such premises, or
(iii) committed, or is committing, any act which is destructive, or permanently injurious to such premises, or
(iv) made, or is making, material addition to, or alteration in such premises without the previous permission of the Authority, or
(v) otherwise acted in contravention of any of the terms, express or implied, under which he is authorized to occupy such premises,
or
(vi) failed to vacate the premises required by the Authority for the purpose of implementing any plan or project for the sale of tenements and to accept the alternative accommodation offered by the Authority;
(b) that any person is in unauthorized occupation of any Authori-ty premises:
the Competent Authority may, for reasons to be recorded in writing, by notice served (i) by post, or (ii) by affixing a copy of it on the outer door or some other conspicuous part of such premises or (iii) in such other manner as may be prescribed, order that persons, as well as any other person, who may be in occupation of the whole or any part of the premises, to vacate the premises in unauthorized occupation, within 24 hours of the date of service of notice, and in any other case within a period of seven days of the date of such service.
(2) Before an order under sub-section (1) is made against any person, the Competent Authority shall issue, in the manner hereinafter provided, a notice in writing calling upon all per-sons concerned to show cause within ten days why an order of eviction should not be made. The notice shall –
(a) specify the grounds on which the order of eviction is proposed to be made ; and
(b) require all persons concerned, that is to say, all persons who are or may be in occupation of, or claim interest in, the Author-ity premises, to show cause against the proposed order, on or before such date as is specified in the notice.
If such person makes an application to the Competent Authority for the extension of the period specified in the notice, such Authority may grant the same on deposit of one hundred rupees and on such terms as to payment and recovery of the amount claimed in the notice, such Authority thinks fit.
Any written statement put in by any person and documents produced in pursuance of the notice, shall be filed with the record of the case, and such persons shall be entitled to appear before the Competent Authority by advocate, attorney or other legal practi-tioner.
The notice to be served under this sub-section shall be served in the manner provided for the service of another under sub-section (1); and thereupon, the notice shall be deemed to have been duly given to all persons concerned.
7. The aforesaid provisions show that the Competent Authority is empowered to pass an order of eviction against a tenant if it is found that the tenant has sub-let the premises allotted to him without previous permission of the Competent Authority. In case any proceeding is to be taken for eviction of a tenant on the ground of subletting, the Competent Authority is required to serve a notice to that effect to the tenant.
8. In the present case, what we find is that there is no evidence on record to show that any notice, as contemplated under Section 66 of the Act, was at all served on the appellant. In the absence of any such notice no proceedings under Section 66 of the Act could have been taken for eviction of the appellant. A proceeding for eviction against a tenant to be valid depends upon service of notice which is required to be given to the tenant. In fact service of notice on the tenant is sine qua non for taking pro-ceeding for his eviction. If it is found that there was no notice to the tenant, the proceedings for his eviction is totally with-out jurisdiction and any order for eviction of the tenant in pursuance thereof would be nullity. It was urged on behalf of the respondent’s counsel that the appellant having been served with the notice in the proceedings for regularization of tenancy in favour of the respondent, it would be presumed that he was served with the notice in eviction proceedings also. This argument of learned counsel runs contrary to the expressed provisions of the Act. The provisions of the Act contemplate two independent pro-ceedings followed by service of notices – (a) one in respect of proceeding for eviction of the tenant; and (b) other for regular-ization of tenancy. Both the proceedings can be initiated only on service of notice on the tenant. In the absence of notice, the proceeding for eviction of the tenant is invalid and as a result there would be no vacancy in the premises which may not warrant initiating any proceeding for regularization of tenancy in favour of third party. Further under the Act no such presumption is created about service of notice as held by the High Court. Under such circumstances, the service of notice in the regularization proceedings cannot be taken as service on the appellant in evic-tion proceedings. In this case we also do not find any proceed-ings having been taken for eviction of the appellant as contem-plated under Section 66 of the Act. We are, therefore, of the view that the order of eviction passed by the Competent Authority was void and ineffective.
9. So far as the second submission is concerned, a tenant can be evicted on the ground of sub-letting when he sub-lets the premis-es without the previous permission of the Competent Authority. In the present case, at the time of allotment, the appellant submit-ted Form ‘C to the Board, wherein he specifically indicated that his brother, namely the respondent, along with his wife would be occupying the premises. The Board accepted the said Form ‘C’ and allotted the premises to the appellant. The Board after having permitted the appellant’s brother to reside in the premises it was not open to it to terminate the tenancy of the appellant on the ground that he has sublet the premises to his brother. We, therefore, find that the ground on which appellant’s eviction was ordered was illegal. Since there was no vacancy, there was no question of regularization of tenancy in favour of the respond-ent. Consequently, the order passed by the Competent Authority regularizing the tenancy in favour of the respondent was also illegal and void.
10. For the aforesaid reasons the order and judgment of the High Court is not sustainable in law. We accordingly set aside the judgment and order of the High Court under appeal. The appeal is allowed. There shall be no order as to costs.
