Wednesday, 8 August 2018

What enquiry is to be made by court prior to passing of eviction decree on ground that demolition notice is issued by local authorities?

The premises required for immediate purpose of demolition ordered by Municipal Authorities (Section 16(1)(k) of the Rent Act)

65. The Trial Court as well as the Appeal Court have upheld the plea for eviction on the ground contemplated by Section 16(1)(k) of the Rent Act. There is, however, variance in the reasoning adopted by the Trial Court and Appeal Court.

66. Section 16(1)(k) of the Rent Act reads thus:

"16(1)(k) - that the premises are required for the immediate purpose of demolition ordered by any municipal authority or other competent authority;"
67. The Trial Court, as reflected in the judgment and decree dated 4 July 2011, had framed the following issue in the context of grounds for eviction under Section 16(1)(k) of the Rent Act.

"(2) Whether the plaintiffs are entitled for possession on the ground that suit property is in dilapidated condition and ordered to be demolished by the local authority as being dangerous for human habitation?"
68. From the manner in which the issue was cast by the Trial Court as also the discussion in the judgments and decrees made by the Trial Court and the Appeal Court, it is clear that both the Courts have not even adverted to the aspect of as to whether the suit premises were required for 'immediate purpose of demolition' as contemplated by Section 16(1)(k) of the Rent Act. The italicised expression, is not without a purpose or a mere surplusage. Before, any decree of eviction can be made under Section 16(1)(k) of the Rent Act, the Court has to satisfy itself that the suit premises are required for the 'immediate purpose of demolition'. In the absence of even the consideration of this aspect of immediacy, much less record of any satisfaction in that regard, there is clear failure to exercise jurisdiction. This position is no longer res integra.

69. The Apex Court, in case of P.O.P.R. and Sons (P) Ltd. v. Associates Publishers (Madras) Limited MANU/SC/0505/1991 : (1991) 1 SCC 301, has held that the expression 'immediate purpose' in Section 14(1)(b) of the Tamilnadu Buildings (Lease and Rent Control) Act, 1960 (Tamilnadu Act) relates to directness rather than speed, although the absence of the latter negatives the former. This expression denotes connection and timely action, but not instant action, yet delayed action is a sign of remoteness of purpose. The expression must be understood as required in direct connection and timely purpose and not just some secondary, remote or premature purpose. The legislative intent is that the purpose should be immediate or direct and not mediate, remote, not direct or secondary. The Apex Court, in the context of Section 14(1)(b) of the Tamilnadu Act as also observed that the Court does not normally sit in judgment over the appreciation of evidence and findings of fact rendered by authorities empowered under a statute. However, if the authority has acted in excess of its jurisdiction, asked itself wrong questions or misunderstood or misapplied the law, failed to consider the relevant circumstances, allowed itself to be persuaded by irrelevant circumstances, then the findings are liable to be reversed as perverse by a Court exercising judicial review. Any repository of power must act, in accordance with the law and on basis of relevant evidence. The authorities must act by reason and justice, not by private opinion.

70. The learned Single Judge of this Court in case of Mrs. Piadad Fernander v. K.M. Ramesh and ors. MANU/MH/0063/1970 : AIR 1970 Bombay 376, in the context of provisions contained in Section 13(1)(hhh) of the 1947 Act have held that satisfaction regards immediacy is not a mere formality. The Court must apply its mind to all facts and circumstances of the case including the order of demolition and then come to the conclusion one way or the other. The earlier decision of this court in Civil Revision Application Nos. 1734 to 1748 of 1965 decided on 14 August 1967 (Bom.) was referred to and relied upon to hold that the expression 'immediate' must be given its due weight in the context. Mr. Justice Patel, in the decision rendered on 14 August 1967, has observed thus:

"In my view, the word 'immediate' in the above clause has been used by the legislature with some intent. If the legislature wanted to provide that the landlords should be entitled to recover possession for the purpose of demolition of the property ordered by the Corporation there should have been no necessity of using the word 'immediate' and even the meaning it would have borne would be the same which Mr. Dhanuka wants me to give to the above clause. It must be remembered in this connection that between the issuing of the notices by the Municipal Corporation for demolition of the premises and the filing of a suit many things might intervene and though at one time the Corporation might have thought that a building was in such a ruinous condition that it must be ordered to be demolished, the same state of affairs might not continue to exist after the lapse of a few years. The word 'immediate' must be given its due effect in the context."
71. This Court, again in the context of Section 13(1)(hhh) of the 1947 Act, in case of M.L. Sonavane v. C.G. Sonar 1981 Bom.R.C. 128, has held that before any order of eviction under Section 13(1)(hhh) of the 1947 Act can be made, the Court must be satisfied upon two aspects. It must be satisfied that a decree for possession has to be passed against the a tenant and secondly, "premises are required for the immediate purposes of demolition". Unless the Court is satisfied about the existence of both these things, it would be difficult to see how a Court can pass a decree for eviction against a tenant. The satisfaction must relate to the requirement of passing a decree for possession against the tenant, and the immediate necessity of demolition. The satisfaction of the Court is not a substitute for the satisfaction of the local authority. Nor is it that Court must itself enquire that the premises are in such a ruinous condition that they are required to be demolished. That satisfaction is relegated to the local authority. But, even apart from that satisfaction is still reserved for the Court by the terms of the section, which deals with that satisfaction with regard to the passing of a decree for possession against the tenant, and the immediate purpose of demolition. If the Court is satisfied, on a consideration of the subsequent events that the premises are not required 'for the immediate purpose of demolition', then, notwithstanding the order passed upon a bona fide exercise of the power by the local authority, the Court may still refuse to pass a decree.

72. Finally, in case of Manohar P. Rajpal v. Satara City Municipal Corporation, Satara and anr. AIR 1992 Bom.R.C. 220, which was relied upon by both the Trial Court as well as Appeal Court, this Court has held that it is open to the Rent Court, before making an order of eviction under Section 13(1)(hhh) of 1947 Act to examine whether the order made by the local authority is based upon relevant considerations and not irrelevant ones. Further, some enquiry is also warranted in the context of expression 'immediate purpose' since the expression is not a mere surplusage and the same has to be considered having regard to various circumstances, including subsequent events.

73. Now if the impugned judgments and decrees made by the Trial Court and the Appeal Court are perused, it is clear that there is no serious investigation as to whether the notice dated 23 January 2002, upon which the landlords have founded their cause of action to seek eviction under Section 16(1)(k) of the Rent Act was issued on basis of relevant considerations and after eschewing irrelevant ones. Further there is no discussion at all on the issue of 'immediate purpose of demolition'. As held in case of M.L. Sonavane (supra), the record of satisfaction on the aforesaid twin aspects is necessary before any eviction order can be made on basis of provisions pari materia to Section 16(1)(k) of the Rent Act. Therefore, in the absence of even adverting to the significant aspect of 'immediate purpose of demolition', the impugned judgments and decrees cannot be sustained.

74. The notice dated 23 January 2002, which as noted earlier, was foundation of the institution of the suits by the landlords states that inspection was carried out on 22 January 2002 and therein it was revealed that the eastern wall of House No. 86B is bloated and there are cracks therein. Similarly, wooden rafters have decayed and the roof destabilized. This condition, poses danger to the persons residing in the house as also passers by. The notice finally directs the landlords to remove the dangerous part of the house and warns that the Municipal Authority will not be responsible for any untoward instances, including loss and life or property.

75. In the context of the provisions contained in Section 16(1)(k) of the Rent Act as also the ruling in case of Manohar Rajpal (supra), the correct question to be posed would be whether demolition of the suit premises has indeed been ordered by the Municipal Authorities and further, whether such orders are based upon relevant considerations and not irrelevant ones. Some enquiry is also warranted in the context of the expression 'immediate purpose' employed in Section 16(1)(k) of the Rent Act. Apart from the decision of the Apex Court in case of P.O.P.R. & Sons (P) Ltd. (supra), this Court in case of M.L. Sonawane (supra), has held that the word 'immediate' is not a surplusage and the same must be construed having regard to the circumstances.

76. In the notice dated 23 January 2002, there is no reference to the same being issued under Section 195 of the Maharashtra Municipalities Act, 1965 (1965 Act), which is the law, which governs the Municipal Authorities at Mahabaleshwar. This is significant because there is a statutory appeal against the notice under Section 195 of the 1965 Act, which opportunity was denied to the tenants. Further, the notice is not directly in the context of suit premises occupied by the tenants, but rather pertains to certain portions of House No. 86B. The notice, does not require demolition of the entire House No. 86B, but rather requires removal of portions thereof, including in particular eastern wall, rafters and roofing. On basis of such notice, it is difficult to sustain an eviction order under Section 16(1)(k) of the Rent Act, particularly where no satisfaction whatsoever has been recorded by the two Courts on the aspect of 'immediate purpose of demolition', which satisfaction, was required to be recorded, both in terms of the context of Section 16(1)(k) of the Rent Act as also the decision of this Court in case of M.L. Sonavane (supra).

77. There is yet another significant aspect in the context of order of eviction under Section 16(1)(k) of the Rent Act. On 6 August 2002, the tenants lodged the complaint to the Municipal Authorities that the landlord Baitulla Shaikh was deliberately indulging in weakening of the walls of the portion of House NO.86, in his possession, with the objective of weakening the entire structure. Based upon such complaint, on 29 August 2002, an inspection was held by the Municipal Authority. Upon finding some merit in the complaint of the tenants, the decision was taken to issue appropriate notice to the landlords Baitulla Shaikh and C.K. Aris, Hamid. Pursuant to such decision, the Municipal Authority, by notice dated 29 August 2002, notified the landlords that during inspection it was revealed that the landlords are illegally and unauthorisedly weakening the walls of House No. 86 and that in future, if the wall collapses and causes loss to the life and property of the tenants, then, it is the landlords, who will be entirely responsible for the same. The documents like complaint of the tenants, inspection report as well as notice dated 29 August 2002 have been proved in the course of evidence and have been marked as Exhibits 223, 224 and 225. This vital material has been completely ignored by the two Courts. Exclusion of relevant and vital material, is also a species of perversity in the record of any finding of fact. The Court Commissioner was also appointed and even the Report of the Court Commissioner does not make out the case that the premises were required for immediate purpose of demolition. The evidence of the Municipal Engineers as well as the Court Commissioner, at the highest indicates that certain portions of House No. 86 are in need of repairs. But the evidence does not make out any case that the suit premises were required for the immediate purpose of demolition. By virtually ignoring such material, the two Courts have proceeded to make a decree of eviction under Section 16(1)(k) of the Rent Act. This is an exercise in excess of jurisdiction. There is both illegality as well as material irregularity in the record of findings of fact, inasmuch as the Courts have failed to ask itself correct question in the context of 'immediate purpose' and further failed to consider relevant circumstances, rather the two Courts have allowed themselves to be persuaded by irrelevant circumstances.

78. The learned counsel for the landlords, however, attempted to make reference to certain subsequent notices issued by the Municipal Authority during pendency of proceedings. One such notice is dated 3 December 2005. Again, this notice makes no reference to the Section 195 of the 1965 Act. Copy of this notice was marked to Shri. Dastagir Dange and Shri. Sanjay Shinde, who were stated to be the complainants. There is no question of placing any reliance of such notice dated 3 December 2005, because the Municipal Authority, by subsequent communication dated 16 December 2005 (Exhibit-299) informed the tenants that further enquiries were conducted in the context of complaint made by Shri. Dattatray Deshmukh, which were the basis for issuance of notice dated 23 January 2002 and it was revealed that the complaint made by Shri. Dattatray Deshmukh was false. There is record of letter dated 14 November 2005 addressed by Shri. Dattatray Deshmukh stating that he had never made any complaint. The communication dated 16 December 2005 has been marked (as Exhibit-299) in the record.

79. The learned counsel for the landlords also made reference to notice dated 16 July 2009 (Exhibit-196). This is a notice which makes reference to Section 195 of the 1965 Act. As against this notice, the appeal has been instituted by the tenants and the same is pending consideration. That apart, even this notice directs the demolition of eastern wall and states that the Municipal Authorities will not be responsible for loss of life or property. What needs to be emphasized is that even this notice dated 16 July 2009 does not require demolition of the suit premises, but only the eastern wall of House No. 86. Then again, this notice makes reference to the Court Commissioner Report, without really considering the contents of said Report.

80. Upon cumulative consideration all the aforesaid circumstances as well as law on the subject, the eviction under Section 16(1)(k) of the Rent Act is unsustainable. The Courts have not even adverted to, much less recorded any satisfaction on the aspect of 'immediate purpose of demolition'. This is an essential pre-requisite before any eviction order can be made under Section 16(1)(k) of the Rent Act, as held by this Court in case of M.L. Sonavane (supra). Further, the Courts have not even adverted to the issue as to whether notice dated 23 January 2002 as also the subsequent notices indeed required the demolition of the entire House No. 86 or for that matter the entire suit premises. The Courts have also not eschewed the irrelevant considerations or taken into account relevant considerations. In particular, the Courts have totally ignored notice dated 29 August 2002 (Exhibit-155) issued by the Municipal Authority to the landlords in the context of deliberate damage to the walls by the landlords, in order to prejudice the tenants. The notice dated 29 August 2002 issued by the Municipal Authority is backed by the documents at Exhibit-223 and 224 in the form of complaints and notings in pursuance of inspection of House No. 86. The Courts have also failed to take into consideration the communication dated 16 December 2005 (Exhibit-299) which accepts that Shri. Dattatray Deshmukh upon whose complaint, the notice dated 23 January 2002 was issued, had made no complaint at all in the matter. The Court Commissioner's Report and evidence as also the Municipal Engineer's evidence has not been adverted to by the two Courts in proper perspective. Therefore, applying the principles set out in case of M.L. Sonavane (supra) and Manohar Rajpal (supra), it is not possible to sustain eviction under Section 16(1)(k) of the Rent Act.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 770 of 2013, 

Decided On: 04.08.2015

 Vasant Mahadeo Gujar and Ors. Vs.  Baitulla Ismail Shaikh and Ors.


Hon'ble Judges/Coram:
M.S. Sonak, J.

Citation: 2016(4) ALLMR 174
Read full judgment here: Click here


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