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

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Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

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

KUMUD W/O MAHADEORAO SALUNKE …Appellant(s) VERSUS

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

J U D G M E N T

Uday Umesh Lalit, J.

1. Leave granted.

2. This appeal arises out of Judgment and Order dated 19.06.2014 passed by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Writ Petition No.2199 of 2003.

3. The appellant, landlord of the premises in question sought permission of the Rent Controller under the provisions of C.P. and Berar  Letting  of  Houses  and  Rent  Control  Order,  1949  seeking eviction  of  the  respondent  on  the  grounds  that  he  bona  fide required  the  premises  and  that  the  respondent  was  habitual defaulter  in  paying  rent  to  the  appellant.   After  the  Rent controller  granted  the  permission,  the  appellant  terminated  the

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

2 tenancy by issuing notice under Section 108 of the Transfer of Property Act, 1982.  Thereafter, he filed Civil Suit No.334 of 1996 seeking  eviction  of  the  respondent.   However,  an  objection  was taken by the respondent that the premises were governed by the Maharashtra Slum Areas (Improvement, clearance and Re-development) Act, 1971 (hereinafter referred to as, ‘the Act’) and as such the requisite permission of the Slum Authority under Section 22 had to be obtained.  The suit was therefore withdrawn by the appellant, and  application  was  preferred  by  him  before  the  Slum  Authority seeking required permission.

4. The Slum Authority vide its order dated 28.11.2000 granted the permission.  In an appeal arising therefrom, an order of remand was passed by the Appellate Authority.  The matter was gone into by the Slum  Authority  afresh  and  by  its  order  dated  30.05.2002  the permission  was  granted  to  the  appellant  to  file  the  suit  for eviction.  The appeal preferred by the respondent challenging the order passed by the Slum Authority was dismissed by the Appellate Authority on 31.10.2002 after giving opportunity to the parties and after scrutinising the material on record.  While considering the submission made on behalf of the respondent as regards alternative accommodation, it was observed by the Appellate Authority as under:

“5-4.  U/s  22  (4)  of  Maharashtra  Slum (Improvement  &  Re-development  Act,  1971  the competent  authority  should  have  seen  that whether  the  alternative  accommodation  is available to the occupied within his means it does  not  mean  that  the  competent  Authority should search the accommodation.  The wife of appellant as in service in mentioned in para 15

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

3 of  written  notes  of  arguments.   Under  the circumstances whether alternative accommodation is  available  and  can  be  made  available,  the burden  of  proof  lies  with  the  appellant. However, the appellant failed to prove the same and hence there is no substance in the point. 6.   On  the  basis  of  above  discussion  and verifying  the  record  of  lower  court  and provisions  of  Maharashtra  Slum  (Improvement  & Re-development) Act, 1971, therefore I come to the  conclusion  that  no  substantial  proof  is presented by the appellant to interfere with the finding  of  lower  court  &  hence  I  pass  the following order.

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

5. Having secured the permission from the Slum Authority, Civil Suit No.113 of 2003 was filed by the appellant seeking decree of eviction of the respondent.  The suit was however dismissed by the Trial Court on 27.09.2007.  Regular Civil Appeal No.444 of 2007 arising therefrom was allowed by the Appellate Court and by its judgment and order dated 17.08.2010 it passed decree for eviction of the respondent and also passed order as regards payment of arrears.  It is undisputed that the decree passed by the Appellate Court was not challenged in any manner and has attained finality.

6. In the meantime, Writ Petition No.2199 of 2003 was filed by the  respondent  challenging  the  permission  granted  by  the  Slum Authority as confirmed by the Appellate Authority vide its order dated 31.10.2002.  This Writ Petition was allowed by the High Court by its judgment and order dated 19.06.2014.  It was observed that the Slum Authority had not considered the relevant factors

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

4 enumerated in Clauses (a) to (c) of Section 22(4) of the Slum Act, 1971 and consideration of those factors by the Appellate Authority would  not  legalize  the  absence  of  such  consideration  by  the competent authority.  It was observed as under:-

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

With this view, the writ petition was allowed and the matter was again remitted to the authority for inquiry.

7. We  heard  Dr.  A.  Rajeev  B.  Masodkar,  learned  Advocate  in support of the appeal and Mr. Kishor Lambat, learned Advocate for the respondents.

8. In  Vidarbha  part  of  the  State  of  Maharashtra,  before  the enactment of Maharashtra Rent Control Act, 1989, there had to be two rounds of litigation to seek eviction of a tenant.  The first round had to be before the Rent Controller seeking permission to issue a quit notice under Section 108 of the Transfer of Property Act.  If such permission was granted, then only the landlord could issue a notice of termination of tenancy and file a civil suit seeking eviction of a tenant.  In the present case the first round

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

5 before the Rent Controller was gone into.   Bona fide need as a ground for eviction may, in a given case, have an additional facet of comparative hardship and whether the tenant has any alternative accommodation  or  not.   In  any  case,  the  matter  had  attained finality.  The permission was granted by the Rent Controller and the civil suit was filed only thereafter in which an objection was taken that the premises being governed by the provisions of the Act, the requisite permission of the Slum Authority was mandatory.

9. In the proceedings so initiated the Slum Authority granted that permission.  The matter was carried in appeal and the issue whether  the  requirements  under  Section  22(4)  of  the  Act  stood satisfied or not was also considered by the Appellate Authority.

It must also be noted that the Civil Suit seeking eviction also attained finality.   

10. In the circumstances, the view that weighed with the High Court was not correct.  The respondent had opportunity at every stage to present his case and whether the requirements of Section 22(4) of the Act stood satisfied or not was a matter which was dealt with by the Appellate Authority in sufficient detail.  In the  circumstances  there  was  no  reason  for  the  High  Court  to interfere  in  its  jurisdiction  under  Article  227  of  the Constitution of India.

11. We, therefore, allow this appeal, set aside the judgment and

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

6 order dated 19.06.2014 passed by the High Court in Writ Petition No.2199 of 2003 and restore the order dated 31.10.2002 passed by the Appellate Authority.

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

…………………………….J. (Uday Umesh Lalit)

………………………….J. (Indu Malhotra)

New Delhi; May 10, 2019.