2024 INSC 71 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1543 OF 2016

BAITULLA ISMAIL SHAIKH

AND ANR. …APPELLANT(S)

VERSUS

KHATIJA ISMAIL PANHALKAR

AND ORS. …RESPONDENT (S)

WITH

CIVIL APPEAL NO. 1544 OF 2016

J U D G M E N T

ANIRUDDHA BOSE, J.

The appellants before us are landlords and they assail a

judgment delivered by a Single Judge of the Bombay High Court

on 04.08.2015 exercising his revisional jurisdiction invalidating

eviction decrees against two tenants in respect of two portions of

the same building. The building in question carries House

No.86 as per the municipal records, comprised in C.S. No. 111/b

as per city survey records, located at Dr. Sobane Road in

2

Mahabaleshwar, District-Satara within the State of Maharashtra.

The Civil Appeal No. 1543 of 2016 arises out of Civil Suit No. 136

of 2010 and the tenant/defendant in that suit is one Khatija

Ismail Panhalkar. In this suit, two of his sons have also been

impleaded as defendants. The premises involved in th ese

proceedings comprise of two blocks within the aforesaid building.

One block comprises of 10’×4’ structure made of ‘ita and tin shed’.

Civil Appeal No. 1544 of 2016 arises out of Civil Suit No. 137 of

2010 and the tenant whose eviction is sought for in this suit is

one Vasant Mahadeo Gujar (since deceased). Before us, his legal

representatives have contested the appeal. The property from

which the appellants want them to be evicted comprises of two

rooms comprising of an area of 10’×12’, which appears to be

located in the middle of the said building. The two rooms, at the

material point of time, were being used for residential purpose.

The appellants purchased the subject-premises in the year 1992

from its erstwhile owner. Both the tenants were inducted by the

erstwhile owner of the building in question.

2. On 23.01.2002, a demolition notice was issued by the

Mahabaleshwar Giristhan Municipal Council for a part of the

subject-building. This notice constituted one of the grounds on

3

which the appellants wanted to evict the respondents under the

Maharashtra Rent Control Act, 1999 (“the 1999 Act”). This notice

was followed by three subsequent notices by the said Municipal

Council on 03.12.2005, 13.07.2009 and 05.07.2010, almost on

similar terms. The suit, however, was founded on, inter-alia, the

notice dated 23.01.2002. This notice is of relevance so far as these

appeals are concerned and we quote below the text thereof:-

“ANNEXURE P- 1

MAHABALESHWAR GIRISTHAN MUNICIPAL COUNCIL,

MAHABALESHWAR, DIST. SATARA - 412806

Municipal office no. 60220 Chief officer no. 60673

President office no. 60232 Chief officer res. No

60671

----------------------------------------------------------------------------------------

V.S. NO. 15/527 Date; 23-1-2002

Notice

You are do hereby informed that on inspection of the

property comprised in C.S. no. 111-b, house no. 86-

b situated within the municipal council, as on today

that is 22-1-2002 it is found that the wall from the

eastern side is swollen and there are cracks. It is

also found that the wooden pillars, wood is

damaged and ceiling also has turned out of shape.

Due to this the danger to the house is apprehended.

There is risk to the persons residing in the house as

well as the persons coming and going. At anytime

thre is possibility of collapsing the said dangerous

building due to which there is possibility of fatalities

and the financial loss. Hence vide this notice it is to

inform you to demolish the said dangerous portion

immediately on receipt of this notice otherwise if any

fatality occurs or the financial loss occurs due to the

said house then municipal council will not be

responsible and the entire responsibility will lie in

your part. And please note the same.

4

Sd/-

Chief officer

Mahabaleshwar Giristhan

Municipal council

To,

Baitulla lsmail sheikh and C.K. Aris.

Vasant Mahadev Gujar

Khatija lsmail Panhalkar”

3. Notices for eviction were subsequently sent to the tenants in

each appeal and both these notices are dated 04.02.2002. So far

as the notice to the respondents in Civil Appeal No. 1543 of 2016

is concerned, the delivery of vacant possession was asked for on

five main grounds. The first one was default in payment of rent.

The next ground was erection of a permanent structure by the

tenant without permission of the landlord. The third point was

subletting and it was also stated in that notice that the landlords

had decided to construct a building thereon for residen tial

purpose as also for operating a hotel. Under Section 16(1)(i) of

the 1999 Act, the erection of a new building could come within

“reasonable and bona fide” requirement of landlord, subject to

satisfaction of certain other stipulated conditions. The

municipality’s demolition notice was also cited as a ground for

eviction. We shall reproduce provisions of Sections 15 and 16 of

the said enactment in subsequent paragraphs of this judgment.

In the eviction notice to the respondent in Civil Appeal No. 1544

5

of 2016, the grounds cited were, inter-alia, issue of the demolition

notice by the municipality, default in payment of rent and also

necessity of the tenanted portion for construction of a new

building upon demolishing the structures on the land.

4. As the eviction notices did not yield any result, the two suits

were instituted on the same date, i.e. 07.08.2002. These suits

appear to have had been tried simultaneously and they were

decreed by the Trial Court, which was sustained by the Appellate

Court. In the Civil Revision Petition, the tenants succeeded as the

judgment and decree were set aside.

5. In course of the proceeding before the Trial Court, a

Commissioner was appointed. He was an architect. His opinion,

however, was not accepted by the Trial Court. He had given his

opinion that a portion referred to as “C” in his report was

dangerous and was required to be demolished. This portion,

however, was in possession of the plaintiffs only, but adjacent to

the suit property (in Civil Appeal No. 1543 of 2016). Though his

report dated 08.12.2008 carries the caption of suit no. (239 of

2002) 136 of 2010, the report was examined by the Trial Court in

connection with both the suits. His report on the necessity of

urgent demolition of the tenanted portions was not fully

6

conclusive but his view was that the entire building was about 97

years old and life of the building was over. His opinion has been

referred to and dealt with by the Trial Court in the following

terms:-

“16) In this respect I have perused evidence of D.W.1 Vivek

and his commission report at Exh.122. It is pertinent to note

that in the commission report Exh.122, the commissioner

has given actual position of every room situated in

C.T.S.No.111/B. In his conclusion he has opined that, the

building is approximately 96 to 97 years old and the life of

building is over. Considering all the material he opined that

the portion shown as 'C' in the map is dangerous and is

required to be demolished. It is important to note that, said

portion shown as 'C' is the room which is in possession of

plaintiffs and adjacent to suit property. The commissioner

has also filed number of photographs showing the position

of property at Exh. 135 to Exh. 148. Further, if D.W.1 Vivek's

deposition is perused it is clear that he has supported his

commission report. In cross examination, he admitted that,

if the cementing strength of soi! used for construction is gone

then there may be cracks to the wall ·and to reconstruct the

said wall the previous wall is required to be demolished,

further, if the base of construction is not strong then new

construction can also collapse. He further admitted that, if

the portion shown by red ink in the map i.e. 'C' is

demolished the entire roof on the property is also required

to be removed and if said roof is removed it will create

danger to the roof of the property on the western side and

ta the roof on 'B' portion. Further, if total evidence of

D.W.1 Vivek is considered it cannot be said that, he

had opined that, suit property is in dilapidated

condition though he had admitted that the life of suit

property is over.”

(Emphasis supplied)

6. It would be evident from this part of the judgment of the Trial

Court that there was no specific finding that the portions in

respect of which the respondent s have tenancy required

immediate demolition. It was a portion of the premises in

7

possession of the landlords which, in the opinion of the

Commissioner was dangerous. The Trial Court proceeded on the

basis that it could not sit in appeal over the decision of Municipal

Council requiring demolition. On plaintiffs’ plea of default, the

Trial Court rejected that contention holding that the tenants were

ready and willing to pay the rent of the suit property and during

the pendency of the suit, they had deposited the rent. The Trial

Court also rejected the landlord’s contention that the subject-

property was sublet or permanent structure was made without

consent of the landlord. The Trial Court, however, opined that the

landlord was the best judge of his own requirement and on that

basis the issue of bona fide need was decided in favour of the

appellants.

7. The Appellate Court sustained the judgment and decree on

the ground of bona fide need as also necessity to effect demolition

of the subject-building. In addition, it overturned the Trial Court’s

finding on there being no default in payment of rent on the ground

that the provisions of Section 15(3) of the 1999 Act could not

support the tenant’s case. On the question of permanent

structure having been made by the respondent in Civil Appeal No.

8

1543 of 2016 without permission of the landlord and question of

sub-letting, the Trial Court’s decision was sustained.

8. The Revisional Court on analysing the provisions of Sections

15 and 16 of the said Statute set aside the judgment and decree

and allowed the revision applications of the tenants.

9. The provisions of Sections 15 and 16 of the 1999 Act

stipulate:-

“15. 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 the tenant on the ground of non-

payment of the standard rent or permitted increases

due, until the expiration of ninety days 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) No decree for eviction shall be passed by the court

in any suit for recovery of possession on the ground of

arrears of standard rent and permitted increases if,

within a period of ninety days from the date of service

of the summons of the suit, the tenant pays or tenders

in court the standard rent and permitted increases

then due together with simple interest on the amount

of arrears at fifteen per cent per annum; and thereafter

continues to pay or tenders in court regularly such

standard rent and permitted increases till the suit is

finally decided and also pays cost of the suit as

directed by the court.

9

(4) Pending the disposal of any suit, the court may, out

of any amount paid or tendered by the tenant, pay to

the landlord such amount towards the payment of rent

or permitted increases due to him as the court thinks

fit.

16. When landlord may recover possession.

(1) Notwithstanding anything contained in this Act but

subject to the provisions of section 25, a landlord shall

be entitled to recover possession of any premises if the

court is satisfied-

(a) that the tenant has committed any act contrary to

the provisions of clause (o) of section 108 of the

Transfer of Property Act, 1882;

Explanation.- For the purposes of this clause, replacing

of tiles or closing of balcony of the premises shall not

be regarded as an act of a causing damage to the

building or destructive or permanently injurious

thereto; or

(b) that the tenant has, without the landlord's consent

given in writing, erected on the premises any

permanent structure;

Explanation.- For the purposes of this clause, the

expression "permanent structure" does not include the

carrying out of any work with the permission,

wherever necessary, of the municipal authority, for

providing a wooden partition, standing cooking

platform in kitchen, door, lattice work or opening of a

window necessary for ventilation, a false ceiling,

installation of air-conditioner, an exhaust outlet or a

smoke chimney; or

(c) that the tenant, his agent, servant, persons inducted

by tenant or claiming under the tenant or, any person

residing with the tenant has been guilty of conduct

which is a nuisance or annoyance to the adjoining or

neighbouring occupier, or has been convicted of using

the premises or allowing the premises to be used for

immoral or illegal purposes or that the tenant has in

respect of the premises been convicted of an offence of

contravention of any of the provisions of clause (a) of

sub-section (1) of section 394 or of section 394A of the

Mumbai Municipal Corporation Act, or of sub-section (1)

or of section 376 or of section 376A of the Bombay

Provincial Municipal Corporations Act, 1949, or of

section 229 of the City of Nagpur Municipal Corporation

Act, 1948; or of section 280 or of section 281 of the

10

Maharashtra Municipal Councils, Nagar Panchayats

and Industrial Townships Act, 1965; or

(d) that the tenant has given notice to quit and in

consequence of that notice,the landlord has contracted

to sell or let the premises or has taken any other steps

as a result of which he would, in the opinion of the

court, be seriously prejudiced if he could not obtain

possession of the premises; or

(e) that the tenant has,-

(i) on or after the 1st day of February 1973, in the areas

to which the Bombay Rents, Hotel and Lodging House

Rates Control Act, 1947 applied; or

(ii) on or after the commencement of this Act, in the

Vidarbha and Marathwada, areas of the State,

unlawfully sub-let or given on licence, the whole or part

of the premises or assigned or transferred in any other

manner his interest therein; or

(f) that the premises were let to the tenant for use as a

residence by reason of his being in the service or

employment of the landlord, and that the tenant has

ceased, whether before or after commencement of this

Act, to be in such service or employment; or

(g) that the premises are reasonably and bona fide

required by the landlord for occupation by himself or

by any person for whose benefit the premises are held

or where the landlord is a trustee of a public charitable

trust that the premises are required for occupation for

the purposes of the trust; or

(h) that the premises are reasonably and bona fide

required by the landlord for carrying out repairs which

cannot be carried out without the premises being

vacated; or

(i) that the premises are reasonably and bona fide

required by the landlord for the immediate purpose of

demolishing them and such demolition is to be made

for the purpose of erecting new building on the

premises sought to be demolished; or

(j) that the premises let consist of a tenement or

tenements on the terrace of a building such tenement

or tenements being only in part of the total area of the

terrace, and that the premises or any part thereof are

required by the landlord for the purpose of the

11

demolition thereof and erection or raising of a floor or

floors on such terrace;

Explanation.-For the purposes of this clause, if the

premises let include the terrace or part thereof, or

garages, servants quarters or out-houses (which are

not on the terrace), or all or any one or more of them,

this clause shall nevertheless apply; or

(k) that the premises are required for the immediate

purpose of demolition ordered by any municipal

authority or other competent authority; or

(l) that where the premises are land in the nature of

garden or grounds appurtenant to a building or part of

a building, such land is required by the landlord for the

erection of a new building which a municipal authority

has approved or permitted him to build thereon; or

(m) that the rent charged by the tenant for the premises

or any part thereof which are sublet is in excess of the

standard rent and permitted increases in respect of

such premises or part or that the tenant has received

any fine, premium other like sum of consideration in

respect of such premises or part; or

(n) that the premises have not been used without

reasonable cause for the purpose for which they were

let for a continuous period of six months immediately

preceding the date of the suit.

(2) No decree for eviction shall be passed on the ground

specified in clause (g) of subsection (1), if the court is

satisfied that, having regard to all the circumstances of

the case including the question whether other

reasonable accommodation is availabl e for the

landlord or the tenant, greater hardship would be

caused by passing the decree than by refusing to pass

it.

Where the court is satisfied that no hardship would be

caused either to the tenant or to the landlord by

passing the decree in respect of a part of the premises,

the court shall pass the decree in respect of such part

only.

Explanation. - For the purposes of clause (g) of sub-

section (1), the expression "landlord" shall not include

a rent-farmer or rent-collector or estate-manager.

(3) A landlord shall not be entitled to recover possession of

any premises under the provisions of clause (g) of sub-

section (1), if the premises are let to the Central Government

12

in a cantonment area, and such premises are being used for

residence by members of the armed forces of the Union. or

their families.

(4) The court may pass the decree on the ground specified

in clause (h) or (i) of subsection (1) only in respect of a part

of the premises which in its opinion it is necessary to vacate

for carrying out the work of repair or erection.

(5) Notwithstanding anything contained in any other law for

the time being in force, an assignment of a decree for

eviction obtained on the grounds specified in clauses (g), (h),

(i) and (j) of sub-section (1) shall be unlawful.

(6) No decree for eviction shall be passed on the ground

specified in clause (i) or (j) of sub-section (1), unless the court

is satisfied-

(a) that the necessary funds for the purpose of the erection

of new building or for erecting or raising of a new floor or

floors on the terrace are available with the landlord,

(b) that the plans and estimates for the new building or new

floor or floors have been properly prepared;

(c) that the new building or new floor or floors to be erected

by the landlord shall, subject to the provisions of any rules,

bye-laws or regulations made by municipal authority

contain residential tenements not less than the number of

existing tenements which are sought to be demolished;

(d) that the landlord has given an undertaking.-

(i) that the plans and estimates for the new building or new

floor or floors to be erected by the landlord include premises

for each tenant with carpet area equivalent to the area of

the premises in his occupation in the building sought to be

demolished subject to a variation of five per cent in area;

(ii) that the premises specified in sub-clause (i) will be

offered to the concerned tenant or tenants in the re-erected

building or, as the case may be, on the new floor or floors;

(iii) that where the carpet area of premises in the new

building or on the new floor or floors is more than the carpet

area specified in sub-clause (i) the landlord shall, without

prejudice to the liability of the landlord under sub-clause (i),

obtain the consent 'in writing' of the tenant or tenants

concerned to accept the premises with larger area; and on

the tenant or tenants declining to give such consent the

landlord shall be entitled to put the additional floor area to

any permissible use;

13

(iv) that the work of demolishing the premises shall be

commenced by the landlord not later than one month, and

shall be completed not later than three months, from the

date he recovers possession of the entire premises; and

(v) that the work of erection of the new building or new floor

or floors shall be completed by the landlord not later than

fifteen months from the said date:

Provided that, where the court is satisfied that the work of

demolishing the premises could not be commenced or

completed, or the work of erection of the new building or, as

the case may be, the new floor or floors could not be

completed, within time, for reasons beyond the control of the

landlord, the court may, by order, for reasons to be

recorded. extend the period by such further periods, not

exceeding three months at a time as may, from time to time,

be specified by it, so however that the extended period shall

not exceed twelve months in the aggregate.

(7) Where the possession of premises is recovered on the

ground specified under clause (g), (h), (i) or (j) of sub-section

(1) and the premises are transferred by the landlord, or by

operation of law before the tenant or tenants are placed in

occupation, then such transfer shall be subject to the rights

and interests of such tenants.

(8) For the purposes of clause (m) of sub-section (1), the

standard rent or permitted increase in respect of the part

sub-let shall be the amounts bearing such proportion to the

standard rent or permitted increases in respect of the

premises as may be reasonable having regard to the extent

of the part sub-let and other relevant considerations.

(9) Notwithstanding anything contained in this Act, where

the premises let to any person include-

(i) the terrace or part thereof; or

(ii) any one or more of the following structures, that is to say,

tower-rooms, sitting-outrooms, ornamental structures,

architectural features, landings, attics on the terrace of a

building, or one or more rooms of whatsoever description on

such terrace (such room or rooms being in the aggregate of

an area not more than one-sixth of the total area of the

terrace); or

(iii) the terrace or part thereof and any such structure,

and the court is satisfied that the terrace or structure or

terrace including structure, as aforesaid, are required by the

landlord for the purpose of demolition and erection or raising

of a floor or floors on such terrace, the landlord shall be

14

entitled to recover possession of the terrace including such

tower-rooms, sitting-out-rooms, ornamental structures,

architectural features, landings, attics or rooms, the court

may make such reduction, if any, in the rent as it may deem

just.

(10) A suit for eviction on the grounds specified in clause (h),

(i), (i) or (k) of sub-section (1) may be filed by the landlord

jointly against all the tenants occupying the premises

sought to be demolished.”

10. The eviction proceeding was instituted in the suit giving rise

to Civil Appeal No.1543 of 2016 against the appellants, inter-alia,

on the grounds of having made construction of permanent nature

by extending the area of the shop premises, without the landlords’

consent, causing permanent damage to the property in question,

causing nuisance and annoy ance to the adjoining area and

neighbouring occupiers as also inducting a relative as sub-

tenant. It was pleaded by the appellants that because of rusting

of beams holding the tenanted structure, the roof of the rented

property was damaged as a result of which it had become

dangerous for the occupation of human beings. Demolition notice

issued by Mahabaleshwar Giristhan Municipal Council to the

landlords dated 23.01.2002 was relied upon in the plaint in this

regard. So far as the suit forming the basis of Civil Appeal

No.1544 of 2016 is concerned, the grounds for eviction were

default in the payment of rent, demolition notice having been

15

issued by the Municipal Council on 23.01.2002, as also for

necessity of having the premises for the purpose of carrying out

construction for residential purpose and hotel. This requirement,

the appellant argued, constituted bona fide requirement by the

landlord. On the finding of the Appellate Court that there was

default in payment of rent, the High Court held:-

“12(c) The Appeal Court has committed an error of law,

apparent on face of record in interpreting Section 15 of the

Rent Act, in the manner it has. The interpretation is contrary

to both, the text as well as the rulings of this Court on the

subject. This is a case where ·rents were regularly offered

and dispatched by way of money orders. The rents were,

however, refused by the landlords. In such circumstances,

there is no obligation upon the tenants to comply with

conditions prescribed in Section 15(3) of the Rent Act. It is

always open to a tenant to establish and prove that the

tenant was always ready and willing to pay rent and

therefore, there was no cause of action to even initiate

proceedings for eviction under Section 15(1) of the Rent Act.

Besides, a careful perusal of the impugned orders would

indicate that concurrently the two Courts have accepted that

there was no default in payment of rents. There is, in any

case, ample evidence on record to establish that there was

no default in payment of rent;”

11. The Revisional Court examining the question of reasonable

and bona fide requirement of the landlords found eviction was

sought for demolishing the suit premises and erecting a new

building thereon. In the opinion of the High Court, it was

incumbent on the part of the fact finding fora to come to a finding

on that question and record satisfaction as required under sub-

sections (4), (5), (6) and (7) of Section 16 of the 1999 Act. We have

16

quoted above Section 16 of the 1999 Act. The High Court appears

to have connected the claim based on reasonable and bona fide

requirement to Sections 16 (1)(h) and (i) of the said statute.

Though these two provisions apply in different contexts, sub-

section (4) thereof requires the Court to carry out an exercise to

determine which part of the rented-out premises ought to be

vacated for carrying out the work of repair or erection. The first

two fora did not address this question, which is a statutory

requirement. A three-Judge Bench of this Court, in the case of P.

ORR & Sons (P) Ltd. -vs- Associated Publishers (Madras) Ltd.

[(1991) 1 SCC 301] dealing with a provision similar to Section

16(1)(i) contained in the rent legislation for the State of Tamil

Nadu, Tamil Nadu Buildings (Lease and Rent Control) Act, 1960

opined that the condition of building had to be considered for

determining the legitimacy of the demand for timely demolition by

reason of extent of damage to the structure, apart from

considering other factors. It was also pointed out in this judgment

that there was no necessity of the building being in crumbling

condition to invoke the said provision. This view was echoed in a

Constitution Bench judgment of this Court in the case of Vijay

Singh and Others -vs- Vijayalakshmi Ammal [(1996) 6 SCC

17

475]. But these authorities do not clash with the reasoning of the

High Court anchored on Section 16(4) of the 1999 Act. That

provision lays down an entirely different test, and that is to

ascertain if part-demolition could save the tenant’s interest.

Dealing with claim based on Section 16(1)(h) and (i) of the 1999

Act, the statutory mandate for the Court is to test the question of

part vacating. Neither the Trial Court nor the Appellate Court

chose to analyse this requirement before directing eviction. This

provision becomes relevant as the initial demolition notice

identifies a part of the premises requiring demolition and the

Commissioner’s report is also on that line. Sub-section (2) of

Section 16 relates to reasonable and bona fide need in terms of

Section 16(1)(g) and if the requirement is in the aforesaid terms,

then the Court has to be satisfied having regard to all the

circumstances of the case including the question whether other

reasonable accommodation is available to the landlord or the

tenant. This provision essentially incorporates the principle of

“comparative hardship”, as such a test has come to be known in

tenancy jurisprudence. We have been taken through the

judgments of the Trial Court and the Appellate Court on this

point. The Appellate Court came to the finding that balance on

18

this point tilts in favour of the landlord. The High Court rejected

this finding, holding:-

“54] However, the respondent-landlords, have not at all

been candid with the Court insofar as the pleadings are

concerned. In the course of evidence, it has come on record

that the respondent-landlords have, besides the suit

premises several other premises, which are being used by

them for purposes of commerce as well as residence. Some

of the premises, may have been acquired post the institution

of the suit including in particular, the premises acquired by

one of the sons of Baitullah Shaikh. Nevertheless, there

were no disclosures volunteered in the course of

examination-in-chief. Even if, the premises subsequently

acquired are left out of consideration, there was a duty upon

the respondent-landlords to fully and candidly make

disclosure about the premises in their occupation, both for

the purposes of residence as well as commerce and

thereafter to explain, howsoever briefly, the subsistence of

the need in respect of suit premises. The respondent-

landlords have completely failed in this aspect. Such non-

disclosure is a relevant consideration in the context of

determining both the reasonability as well as bona fides.

55] The tenants have managed to bring on record the

material in the context of occupation and control of several

premises by the respondent-landlords. Looking to the

conduct of the respondent-

landlords, there is no certainty as to whether the

premises in respect of which the tenants have obtained

and produced documents, are only premises which are

in the occupation or control of the respondent-landlords

or whether there are some others as well.

However, even on basis of the existing material on

record, there was no question of making any decree

under Section 16(1) (g) of the Rent Act.”

We affirm the view taken by the High Court that there was no

satisfaction in the manner contemplated in Section 16 (2) of the

1999 Act as far as bona fide need in terms of Section 16(1)(g) was

concerned. In the impugned judgment, the High Court has dealt

19

with in detail the list of properties which were with the landlords

and on that basis gave its own finding in that regard. We do not

find any perversity in such view taken by the High Court.

12. Sub-section (6) of Section 16 also mandates satisfaction of

the conditions stipulated in sub-clauses (a) to (d) thereof. Sub-

clause (d) in particular, contemplates the landlord to give

undertaking in terms of paragraphs (i), (ii), (iv) and (v) of that sub-

clause, while dealing with landlord’s eviction claim based on

Section 16(1)(i) of the said statute. These are all mandatory

requirements and we cannot find any flaw with the judgment of

the High Court to the extent it rejects the claim of the landlord for

non-compliance of the aforesaid provisions.

13. Section 16(1)(k) of the said Act permits recovery of possession

of tenanted premises on the ground that the premises are

required for immediate purpose of demolition ordered by any

municipal or other competent authority. In the present case, the

respective suits were instituted seeking recovery of possession,

inter-alia, under this provision. We have already referred to the

demolition notice issued by the municipal authority. The High

Court opined that it was necessary to satisfy itself that the suit

premises were required for immediate purpose of demolition.

20

Contention of the appellants is that the Statute does not require

the Court to come to a satisfaction on this point. In the event a

tenant questions immediacy of demolition, then the proper course

for him would be to question legality of the said notice. Section

195 of the Maharashtra Municipal Councils, Nagar Panchayats

and Industrial Townships Act, 1965 (“1965 Act”) to which the

High Court has also referred to, stipulates:-

“195. (1) If it shall at any time appear to the Chief Officer

that any building or other structure or anything affixed to

such building or structure is in a ruinous condition or likely

to fall, or in any way dangerous to any person occupying,

resorting to or passing by such building or structure or any

other structure or place in the neighbourhood thereof, the

Chief Officer may, by written notice, require the owner or

occupier of such building or structure to pull down, secure,

remove or repair such building, structure or thing or do one

or more such things and to prevent all causes of danger

therefrom.

(2) The Chief Officer may also, if he thinks fit, require the

said owner or occupier, by the said notice, either forthwith

or before proceeding to put down, secure, remove or repair

the said building, structure or thing, to set up a proper and

sufficient board or fence for the protection of passers by and

other persons.

(3) If it appears to the Chief Officer that the danger from a

building, structure or thing which is ruinous or about to fall

is of hourly imminence he shall, before giving notice as

aforesaid or before the period of notice expires, fence of,

take down, secure or repair the said structure or take such

steps or cause such work to be executed as may be required

to arrest the danger.

(4) Any expenses incurred by the Chief Officer under sub-

section (3) shall be paid by the owner or occupier of the

structure and shall be recoverable in the same manner as

an amount due on account of a property tax.”

21

14. The High Court found fault with the demolition notice as it

carried no reference to the said provision (Section 195 of the 1965

Act). This flaw, by itself would not make the notice unenforceable.

Omission to label a notice with the provision under which it is

issued would not make it nugatory, if substance thereof is clearly

conveyed. But the High Court also found:-

“76…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 N0.86, 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 compliant 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

22

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.”

(quoted verbatim from the paperbook)

15. Scope of Section 195 of the 1965 Act has been examined by

the Bombay High Court in its judgment in the case of M.L.

Sonavane -vs- C.G. Sonar [1981 (1) All India Rent Control

Journal 466]. It is recorded in this judgment:-

“25. The more pertinent question however, is, whether the

satisfaction of a local authority can be a substitute for the

satisfaction of a court. The court must be satisfied as the

section says of two things. It must be satisfied that a decree

for possession has to be passed against 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 the court must itself inquire 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, an area of

23

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,

such satisfaction has also to be with regard to the

immediate purpose of demolition. It is there and under those

circumstances that the subsequent events and actions enter

into the considerations of the court. If the court is satisfied

on a consideration of the subsequent events that the

premises are not required “for the immediate purposes 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. To my mind, that is

the decision and principle laid down in 72 Bombay Law

Reporter 569 and the judgment of Justice Patel referred

earlier.”

16. After holding that the satisfaction contemplated in the

aforesaid provision is that of the local authority in a suit for

eviction, it has been held that an area of satisfaction is still

reserved for the Court. Court has to examine if there is immediacy

of the need for demolition. Broadly, the same view has been taken

by the Bombay High Court in a later judgment, in the case of

Manohar Prabhumal Rajpal -vs- Satara City Municipal

Corporation, Satara and Another [(1993) 1 All India Rent

Control Journal 81]. In this judgment, the Court dealt with an

eviction suit filed under the provisions of Section 13(1)(hhh) of the

Bombay Rents, Hotel and Lodging House Rates Control Act, 1947

(“1947 Act”). The said provision is near identical to the provisions

of Section 16(1)(k) of the Rent Control Act, 1999. While analysing

the said provision of the 1947 Act, the High Court had held that

24

the Trial Court while examining a plea for decree under similar

statutory provision cannot sit in appeal over the decision of the

local authority once the latter had exercised its power after taking

into relevant factors into consideration. In our opinion, these two

decisions lay down the correct principles of law for construing the

provisions of Section 16(1)(k) of the 1999 Act. We accept the

appellant’s argument that the Court trying an eviction proceeding

under the aforesaid provision has very limited role in determining

as to whether demolition is really necessary or not, but it does not

automatically follow therefrom that the Court would mechanically

adopt the view of municipal authority of there being urgent need

of demolition. The conditions under which a landlord can bring

an eviction action under clauses (i) and (k) of Section 16(1) are

different in their operations. In respect of an eviction proceeding

founded on the former provision, it contemplates a lesser degree of

immediacy or urgency, as held in the Constitution Bench

judgment which we have referred to above. But the latter

provision requires a greater degree of urgency and it is within the

jurisdiction of the Court to test this factor, as held in the cases of

M.L. Sonvane (supra) and Manohar P. Rampal (supra). Both the

fact finding fora failed on this count.

25

17. On behalf of the appellants, it was brought to our notice that

after the first demolition notice on 23.01.2002, three other notices

were issued. Obviously the two fact finding Courts did not

consider these notices as they did not form part of cause of action

and it also does not appear that the said facts were admitted to

be brought on the record by way of amendment of plaint or

otherwise. These notices would run their own course and we also

do not want to take cognizance of these subsequent notices as it

would be up to the authorities to take such steps as may be

permissible in law in respect of the subsequent notices. The

tenants shall also be entitled to question the legality thereof, if so

advised.

18. We are conscious that the Revisional Court was examining a

judgment and decree already tested by the Appellate Forum and

on facts, decree was made. Ordinarily the Revisional Court ought

not to interfere with findings on fact. But in the judgment under

appeal, we find that the Revisional Court has fitted the facts with

the legal provisions and found that there was mismatch on the

basis of which the judgment and decree were set aside. We have

been taken through the judgment of the Revisional Court and do

26

not find any flaw that needs re-appreciation. We accordingly

dismiss both the appeals.

19. Pending application(s), if any, shall stand disposed of.

……………………………….J.

(ANIRUDDHA BOSE)

……………………………….J.

(BELA M. TRIVEDI)

New Delhi;

30

th

January, 2024