Sunday, 11 February 2018

When suit is maintained without permission from authorities under maharashtra slum Act ?

On the other hand, in so far as Smt. Teresa (supra) is concerned, it is clear that the decree has not become final when the notification was set aside. In fact declaration was made on 9-9-1977. That declaration was set aside on 7-12-1979 and suit was decree on 12-4-1979. An application was made to set aside the said decree which was dismissed. Revision which was preferred was allowed. In other words, the decree had not become final. Even otherwise at the highest what section 22 contemplates is bar on the person instituting the suit without permission of the competent authority. It is not ouster of jurisdiction of Civil Court. The Civil Court cannot proceed with the matter unless permission of the authority was granted. It is no doubt true that another learned Single Judge in the case of Kalavatibai v. Gopala, MANU/MH/0688/1984 : 1984 Mh.L.J. 261 has taken a view that permission cannot be post facto and has to be before the suit is instituted. At any rate, I am not called upon to answer that issue in the present case. Once the notification is set aside and proceedings are pending, the bar created is lifted. Once the bar is lifted, the bar on the person instituting the suit without permission goes of. The suit can be proceeded with further. In these circumstances, to my mind it is not possible to hold that there is any conflict in the judgment in the case of Smt. Hazira and Smt. Tereza (supra).

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1944 of 2002

Decided On: 04.04.2002

 Hari S. Yadav Vs. Hiralal Prabhu Yadav and Anr.

Hon'ble Judges/Coram:
F.I. Rebello, J.

Citation: 2002(6) Bom CR177



1. Rule. Respondent waives service.

Heard forthwith.

Respondent No. 1 original plaintiff had filed a suit against petitioner and respondent No. 2 before the Small Causes Court at Mumbai which was numbered as R.A.E. Suit No. 4802 of 1978. The suit was for eviction of the petitioner from the suit premises on the ground that the petitioner a monthly tenant was in arrears of rent and inspite of statutory notice had failed to pay the amount. Some other grounds was also set out inclining that the defendant No. 1 in the suit, respondent No. 2 herein, had unlawfully inducted petitioner in the suit premises. The petitioner herein filed his written statement on 13-9-1982 contending that he was protected under the provisions of the Bombay Rent Act. It was further pointed out that the area where the structure was situated was declared as slum under Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971. No permission of the authority has been taken and considering section 22 of the Act, suit was not maintainable. The trial Court framed issue as to whether the suit property has been declared as slum and as such whether the suit was maintainable. The trial Court held in the affirmative. The trial Court held that the plaint was lodged on 15-9-1978 after declaration of slum which notification was published in the Government Gazette on 16-2-1978. In that light of the matter, suit was dismissed. In so far as arrears of rent is concerned, the Court held that the defendant therein were not in arrears of rent for more than six months. The Court answered in the affirmative the issue that the premises have been unlawfully sublet to defendant No. 2. However, in view of the finding on Issue No. 1 dismissed the suit.

2. Respondent No. 1 aggrieved by the said order preferred an appeal before the Appellate Bench of the Small Causes Court, Mumbai. The Appellate Bench framed points for determination including whether the suit was maintainable as also the ground of sub-letting. In so far as issue of the area being declared as slum is concerned, the Appellate Court held based on copy of the judgment of the Maharashtra Slum Area Tribunal, Bombay in Appeal No. 46/255 of 1986 dated 29-11-1998. That the notification of 16-2-1978 had been set aside by its order dated 26-4-1979. The Court further noted that the area was again re-declared as slum by notification of 24-2-1963. That declaration was once again set aside on 29-11-1988. Relying on the judgment of the learned Single Judge of this Court, which will be adverted to latter on, the Appellate Bench held that as the declaration was set aside, there was no slum and as such there was no necessity to obtain necessary permission. In so far as issue of sub-letting is concerned, the Appellate Bench concurred with the findings of the trial Court and in the light of that decreed the suit and directed eviction of the petitioner. It is that order which is sought to be impugned before this Court.

3. At the hearing on behalf of the petitioners, it is contended that on the date the suit was filed, which is 13-9-1978, the area was declared as slum. The area had been declared as a slum by Government Notification on 16-2-1978. The mere fact that subsequently that notification was set aside, during the pendency of the suit would be of no consequence. The trial Court has correctly appreciated that contention. The Appellate Court in holding otherwise has acted without jurisdiction. The order suffers from error apparent on the face of record. Reliance which has been placed on the judgment of the learned Single Judge of this Court in the case of Smt. Hazira Wife of Mohd. Gaus v. Saphaya, AIR 1988 C J 57

On the other hand on behalf of the respondent, their learned Counsel contends that once declaration is set aside it goes to the root of the matter and even if the suit had been filed when that declaration was in force, the moment the declaration was set aside the suit would be properly constituted. Reliance for that purpose have been sought in the case of Abdul v. Tereza, AIR 1986 CJ 154

4. With the above background, we may now decide the issue in controversy. Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 has been amended from time to time. Under section 22 it is provided that 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 institute after commencement of the Maharashtra Slum Area (Improvement, Clearance and Redevelopment) Act, 1971 any suit or proceedings for obtaining any decree or order for eviction of the occupier from any building or land in the slum area or for recovery of any arrears of rent or compensation from any such occupier. This is the provision which will have to be considered as it was in issue before the Court below.

In Smt. Hazira w/o. Mohd. Gaus (supra), the decree had been obtained against defendant which had become final. That decree was sought to be executed. The execution was obstructed on the ground that the decree was nullity as on the date the decree was passed, area has been notified as slum under the Slums Act. That matter came up before this Court. A learned Single Judge took a view that the decree was nullity and allowed the petition and set aside the orders of the Courts below which had directed eviction.

In Smt. Tereza (supra), which judgment was delivered on 8-7-1985 before the judgment in Smt. Hazira (supra), which was the decision of 31-7-1986, another learned Single Judge considered the very same section. In that case declaration was made on 9-9-1977. The suit was filed in December, 1977. The decree was passed on 12-4-1979. Proceedings were however, initiated against the said decree. The application by the defendant there to set aside the decree on the ground that fraud was practised on him was rejected. However, it was held that the suit would be bad as at the relevant time there was notification declaring the area as slums. A revision was preferred which was allowed and ex parte decree confirmed. The writ petition came to be filed against that order. That petition was dismissed on the ground that the notification declaring premises as slum area had been set aside and holding that the effect of the order of the Appellate Court would be that there was no declaration under section 4 at any time and thus suit would not be covered by section 22 of the Slums Act. The Court further observed that the very effect is washed away and consequently there was no prohibition against filing of suit without permission of the competent authority.

5. It was contended before this Court that considering the ratios of the two judgments, it would be clear that there is conflict in the judgments of the two learned Single Judges of this Court and consequently the matter should be referred to a larger Bench. If after examining the ratios of the judgments, it is so possible to hold, then it would be appropriate to refer the matter to the learned Chief Justice for reference to larger Bench. However, is that required? In the first instance, the judgment in Smt. Tereza was earlier in point of time. That judgment was not brought to notice of the learned Single Judge who decided the case of Smt. Hazira. Secondly the proceedings in the case of Smt. Tereza were pending as the application was moved to set aside the decree on the ground that the fraud was played on the respondents. In other words, the decree had not yet become final.

In so far as Faizal Hazi and others are concerned, the decree had become final. The execution was resisted by the Obstructionist. It is in these circumstances that the learned Judge of this Court came to the conclusion that the judgment was a nullity at law. In other words, even though the decree has become final since it was nullity at law, it could not be executed. The important aspect is that the decree which had become final was not also challenged.

Is it possible from the above to differentiate the ratios of the said judgment or are the two ratios in conflict to each other. In so far as Smt. Hazira is concerned, the decree had become final and it was the obstructionist who pleaded that the decree is nullity. The suit was filed on 21-3-1979 when the declaration under the Slums Act was in force. An appeal had been preferred against the notification. That appeal was allowed only on 13-4-1982. The suit had been decreed on 10-8-1979. In other words the suit was decreed when the area was declared as slum. There were no further proceedings against the said decree at least it is not discernible from the judgment. The notification was set aside only on 13-4-1982. The order passed on the Obstructionist Notice was on 2-10-1980. It was in these set of circumstances when the decree was passed when the notification under Slums Act was subsisting and no further proceedings had been taken against the decree, that the Court came to the conclusion that the decree was nullity. The judgment in the case of Smt. Hazira is clearly distinguishable. It has to be restricted to those cases where the decree was passed where notification was set aside and no appeal had been filed challenging the notification declaring the area as a slum.

On the other hand, in so far as Smt. Teresa (supra) is concerned, it is clear that the decree has not become final when the notification was set aside. In fact declaration was made on 9-9-1977. That declaration was set aside on 7-12-1979 and suit was decree on 12-4-1979. An application was made to set aside the said decree which was dismissed. Revision which was preferred was allowed. In other words, the decree had not become final. Even otherwise at the highest what section 22 contemplates is bar on the person instituting the suit without permission of the competent authority. It is not ouster of jurisdiction of Civil Court. The Civil Court cannot proceed with the matter unless permission of the authority was granted. It is no doubt true that another learned Single Judge in the case of Kalavatibai v. Gopala, MANU/MH/0688/1984 : 1984 Mh.L.J. 261 has taken a view that permission cannot be post facto and has to be before the suit is instituted. At any rate, I am not called upon to answer that issue in the present case. Once the notification is set aside and proceedings are pending, the bar created is lifted. Once the bar is lifted, the bar on the person instituting the suit without permission goes of. The suit can be proceeded with further. In these circumstances, to my mind it is not possible to hold that there is any conflict in the judgment in the case of Smt. Hazira and Smt. Tereza (supra).

In so far as ground of subletting is concerned, that has not been seriously challenged. There are concurrent findings of facts by both the courts below. The order does not suffer from any error apparent on the face of record. In the light of that, it is impossible to interfere in the orders of the courts below on the finding of ground of sub-letting.

6. In the light of what has been stated aforesaid, there is no merit in this petition. Petition accordingly dismissed. Rule discharged. No order as to costs.



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