eviction

Op EdsOP. ED.

This article concerns with a recurrent issue that arises from an ever-widening relationship of landlord-tenant. There can be no hesitation mentioning that almost all the societies have witnessed conflicts when it comes to determination of tenancy and thus, regulate the same. In India, Part V of the Transfer of Property Act, 1882, (hereinafter referred to as “the Act” or “TPA”) governs such a relationship entered into through a lease. A perplexing question that needs discussion here pertains to procedural requirement of “giving a notice” under Sections 106 and 111(g) of the Act, by the landlord, of his intention to determine the jural relationship of tenancy before filing a suit for eviction under the various State Rent Acts. The issue within this is not regarding what amounts to “giving of a notice” or whether a notice given in a certain way fulfils all requirements to be a valid notice. The controversy centres on whether such a notice is at all necessary to be given. The major takeaway for the readers would be knowledge of confined situations where notice is required to be served by the landlord and consequently, would reduce the confusion regarding the same. Before moving on to the question on hand it becomes pertinent to shed some light on the concept and scope of the aforesaid provisions.

Ordinarily, a contract between the parties would regulate all the relevant terms including the duration of the subsistence of tenancy, however, there might be a case where the contract mentions no date of termination of such relation. On a plain reading of Section 106, it is clear that the legislature has classified the leases into two categories and according to their purposes this provision would be attracted to construe the duration of the lease and accordingly duration of notice to be served in absence of a contract or local usage to the contrary[1]. This implies that this section is applicable only in the absence of contract as to the duration of lease. Also, it is open to the parties to contract themselves out of the provision and to make a valid contract between themselves as regards duration of their lease and the manner of termination of the same. It is obvious that the lease of tenancy, mostly, if not always, would be covered by the mandate of giving 15 days’ notice to the tenant. Even the length of the notice or the calendar for computation of the period can be subject to contract between the parties[2].

The other indispensable requirement of giving notice is rooted under Section 111(g) of the Act. The sub-section deals with the subject known as forfeiture of leases. Forfeiture ordinarily implies a penalty for an offence or unlawful act or for some wilful omission of a tenant of property whereby he loses it, together with his title, which devolves upon others[3]. To constitute forfeiture in a matter, there must be a breach of an express condition of the lease which provides for the landlord’s re-entry to the premises.

The question that stares us at this stage is whether both the notices under the impugned sections technically are identical to each other. To start with, a bare reading of Section 111(g) shows that it is nowhere mentioned as to the nature and time period of the notice that needs to be given is identical to that of Section 106. Clearly, Section 106 of the Act was incorporated as an equitable provision so that a tenant may not be taken by surprise. The rationale behind such a mandate could be intimating the intention of landlord so that the tenant could arrange for himself another roof. It seems to be in the interests of hapless tenants who are without just cause thrown out of the premises at the mercy of the landlord. On the other hand, the latter’s purpose apparently is not the one as of the former and is not based on the principles of justice, equity or good conscience[4]. It cannot be said to be guided by reason and equity as the tenant after liability has been incurred cannot be given benefit of his own wrong. Therefore, notice under the latter sub-section is not the one to be given under Section 106 of the Act. However, at most, it can be said that the similarities that can be drawn in both the notices are with respect to the procedural formalities but not the technical ones.

This brings us to the real question of this article as to whether the “giving of notice” as contemplated by the Act is a prerequisite condition that needs to be adhered to prior to filing of a suit of eviction against tenant under the State Rent Acts.

Here, it becomes imperative to appreciate the fact that the State List[5] of the Constitution of India prescribes the State Governments to regulate rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents. Resultantly, almost all the States have enacted their law governing determination of tenancy. The controversy now is limited to whether the provisions of the relevant State Rent Act was in addition to the provision of the TPA or was in derogation thereof. In other words, whether it would supplement or supplant the same. The Rent Acts  passed in different States were intended to prevent indiscriminate eviction of tenants and were intended to be a protective statute to safeguard the security of possession of the tenants and therefore, should be construed in the light of it being a social legislation[6].

As far as the answer to the present question is concerned it can be said that there were mixed and inconsistent views iterated by the Supreme Court and various High Courts in catena of judgments. A few of the judgments deserves to be highlighted herein. The Supreme Court in Manujendra Dutt v. Purendu Prosad Roy Chowdhury[7], while deciding requirement of notice in both the sections to be sine qua non before filing suit for eviction under the State rent provisions, has remarked that:

5. … Rent Acts are not ordinarily intended to interfere with contractual leases and are Acts for the protection of tenants and are consequently restrictive and not enabling, conferring no new rights of action but restricting the existing rights either under the contract or under the general law.

In addition to the above case, the Supreme Court while referring to its judgment in Namdeo Lokman Lodhi v. Narmadabai[8], has held that giving notice under Section 106 is a principle of equity and hence mandatory but laid down contrary with respect to Section 111(g). It observed that:

26. … The irrelevance of the English Law as such to notions of good conscience in India notwithstanding, we agree that a written notice is no part of equity. The essential principles, not the technical rules, of the TP Act form part of justice, equity and good conscience. The conclusion emerges that the landlord’s termination of the tenancy in this case is good even without a written notice.[9]

Either of the above view was adopted by the Supreme Court of India in many more pronouncements until the landmark judgment[10] by a seven-Judge Bench of the Court. The ruling marked the end of all the chaos and confusing and thus overruled all the previous conflicting views. Moreover, it emphasised the need to have a uniform law in all the States despite having some difference in phraseology of relevant provisions in the State laws.

The Court pointed out with no hesitation that notice under both the sections is different kind of intimation. As far as Section 106 is concerned it brushed aside the previous position of law and stated that when under the various State Rent Acts, either in one language or the other, it has been provided that a tenant can be evicted on the grounds mentioned in certain sections of the said Acts, then how does the question of determination of a tenancy by notice arise? If the State Rent Act requires the giving of a particular type of notice in order to get a particular kind of relief, such a notice will have to be given. It further observed that:

11. … It is true that the Rent Act is intended to restrict the rights which the landlord possessed either for charging excessive rents or for evicting tenants. But if within the ambit of those restricted rights he makes out his case it is a mere empty formality to ask him to determine the contractual tenancy before institution of a suit for eviction[11].

Thus, the action of the landlord in instituting a suit for eviction on the ground mentioned in any State Rent Act will tantamount to an expression of his intention that he does not want the tenant to continue as his lessee and the legal relationship of lessor and lessee will come to an end on the passing of an order or a decree for eviction. Until then, under the extended definition of the word “tenant” under the various State Rent Acts, the tenant continues to be a tenant even though the contractual tenancy has been determined by giving of a valid notice under Section 106 of the TPA.

On the other hand, the Court while considering the requirement under Section 111(g) obliterated the difference between “contractual tenant” and “statutory tenant“. It observed that where any tenant has violated any term of the contract and the landlord having served the notice determines the contractual lease under Section 111(g) of the Act, nevertheless, he would be provided with the protection under various State Acts as statutory tenant and can only be evicted after obtaining an order or decree to that effect. Stating it in words of the Bench:

16. … Why this dual requirement? Even if the lease is determined by forfeiture under the Transfer of Property Act the tenant continues to be a tenant, that is to say, there is no forfeiture in the eye of the law. The tenant becomes liable to be evicted and forfeiture comes into play only if he has incurred the liability to be evicted under the State Rent Act, not otherwise. In many State statutes different provisions have been made as to the grounds on which a tenant can be evicted and in relation to his incurring the liability to be so evicted. Some provisions overlap those of the Transfer of Property Act. Some are new which are mostly in favour of the tenants but some are in favour of the landlord also.[12]

Therefore, it can be aptly concluded that determination of a lease in accordance with the TPA is unnecessary and a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be so even thereafter.

Thereafter, this position of law has been followed in a plethora of judgments by the Supreme Court. In Shakuntala S. Tiwari v. Hem Chand M. Singhania[13], the Court held that it is an act in law and not an act of law because under the scheme a determination of tenancy which takes place under the TPA, according to the appellant, is wholly irrelevant for founding a cause of action in ejectment because the provisions of the TPA are superseded by the provisions of the Rent Act. Interestingly, the Court has broadened its sweep to the extent saying that Section 111(g) in such situations be treated as inoperative and deemed to be repealed[14].

Conclusion

On a careful consideration of all the material referred to, it can be aptly remarked that requirement of giving a notice to the tenant under Sections 106 and 111(g) in a case of filing an eviction petition under the respective State rent legislations is not based on rule of equity and reason. Hence, it is an additional technical formality, absence of which ensue no legal consequences and cannot be insisted upon the landlord. But does that mean that the impugned provisions have no role to play in shaping the rent control jurisprudence? The answer cannot be in affirmative. The two provisions would still operate in a larger field of regulating other leases of immovable property other than tenancy. Also, it cannot be said that both of them are in nullity when we talk about regulation of landlord-tenant relationship. The judgment of the Supreme Court in Nopany Investments (P) Ltd. v. Santokh Singh (HUF)[15] can be interpreted to the extent that giving a notice under Section 106 of the Act is not a requirement even when filing a suit in general law. However this does not seem to be the correct proposition of law laid down in Yesodai Ammal case[16] as these provisions of the Act would apply in absence of Rent Act in the State concerned and where the landlord presses a ground which does not find mention in the State Act but in general law[17]. In furtherance to this, there can be another situation which is a necessary corollary to the intent of State Legislatures i.e. where the State rent law itself expressly or by necessary implication entails to give a notice in accordance with the terms of Section 106.

Ergo, the requirement of giving a notice can be summed up in the following categories as noted hereinbelow:

  1. Where the rent agreement speaks for giving notice in a manner which is not inconsistent with the statute in force of that State or the general law (in case no State Act exists) as the case maybe, then that specific clause of the agreement shall prevail.
  2. Where no clause for giving notice is provided in the agreement or if provided is inconsistent with the State law or Central law (in case of absence of State law), then:

(a) Where that particular State has not enacted its rent statute, then the terms provided under TPA shall apply and would become a mandate.

(b) Where a particular State has enacted its rent statute but does not provide any provision regarding giving of notice, then no notice need to be served before filing a petition for eviction and tenancy shall only be terminated once a decree is granted by the proper rent court.

(c) Where the State rent statute itself expressly or by necessary implication entails to give a notice in accordance with the terms of Section 106 of TPA.

(d) Where the landlord presses a ground which does not find mention in the relevant State Rent Act in a particular State of India but in TPA, then terms of TPA shall be complied with.

*Final Year Student of BA LLB (Hons.), University School of Law & Legal Studies, GGSIPU.

[1] Samir Mukherjee v. Davinder K. Bajaj, (2001) 5 SCC 259 

[2] Harbhajan Singh v. P.N. Chopra, 1976 SCC OnLine Del 174

[3] Wharton’s Law Lexicon, see also Sunil Kumar Modi v. Munna Lal Gupta, 2007 SCC OnLine All 899

[4] Rattan Lal v. Vardesh Chander, (1976) 2 SCC 103; see also, Namdeo Lokman Lodhi v. Narmadabai,  1953 SCR 1009

[5] Sch. VII, List II, Entry 18,  Constitution of India

[6] Manujendra Dutt v. Purendu Prosad Roy Chowdhury, (1967) 1 SCR 475

[7] Ibid

[8] 1953 SCR 1009

[9] Rattan Lal v. Vardesh Chander, (1976) 2 SCC 103, 117

[10] V. Dhanapal Chettiar v. Yesodai Ammal, (1979) 4 SCC 214

[11] Id. at p. 22

[12] V. Dhanapal Chettiar v. Yesodai Ammal, (1979) 4 SCC 214, at p. 227

[13] (1987) 3 SCC 211

[14] Palani Ammal v. Viswanatha Chettiar, (1998) 3 SCC 654

[15] (2008) 2 SCC 728

[16] (1979) 4 SCC 214

[17] Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693

Case BriefsHigh Courts

“Our country has always been proud of progeny like Shravan Kumar, who to fulfill the wish of his poor, blind and ageing parents, took them on a pilgrimage by carrying them on his shoulder in two baskets put on either side of the bamboo stick, and whilst trying to collect water on his way from a stream, to quench the thirst of his parents, became a target of King Dashrath’s arrow.”

–Bombay High Court

Bombay High Court: A Division Bench of S.J. Kathawalla and N.R. Borkar, JJ., while addressing a matter wherein a 70 year old mother was physically and mentally harassed by one of her daughters,  noted that,

“…it is unfortunate that in the last several years courts are repeatedly witnessing, old parents knocking at its doors, in the twilight years of their lives seeking redressal of their grievances against their children.”

A 70-Year old mother had approached the High Court alleging that she was subjected to mental and physical torture by her daughter (respondent 1).

Court while addressing the said matter stated that, the welfare of the parents / senior citizens is of paramount importance, ascertain the seriousness and correctness of the allegations made, pass appropriate order/s ensuring that no injustice or inconvenience is caused to either party.

Bench in it’s earlier order, when the mother approached the court for relief, had laid down the following order:

Bench assured the petitioner that if she lives in her own flat and face any harassment from respondent 1 or her son, she will be provided all assistance, both by the Court and police authorities.

Installation of CCTV cameras inside the flat has been directed.

Respondent 1 and her son, both have been sternly warned . Senior Inspector of local police station under who jurisdiction the flat come has been directed to give all assistance to the petitioner.

Respondent 1 and her son will not obstruct entry of any of the relatives whom petitioner wants to meet. Also respondent 1 and her son are not allowed to invite or bring any of their guests to the flat without prior permission of petitioner through her advocate.

What is the present situation in the above matter?

Respondent 1 daughter has filed an affidavit stating that the petitioner mother was reacting/over-reacting at the instance of her other sibling namely her sister – Vaishali, who has admittedly temporarily come down with her family from Singapore.

Petitioner refusing the above made an offer to allow respondent 1 and her son to reside in one of her flats at Nalasopara on and from 15th July, 2020 and only on her agreement petitioner would be able to come back to her flat for the remainder of her life and stay in peace.

Court was happy to note that respondent 1 daughter and her son have undertaken to vacate the said flat with a period of 8 weeks.

Keeping the interest of the family and their rights, in mind, Court passed the following order:

  • Undertaking given by the respondent 1 and her son that they will vacate the flat with 8 weeks — is accepted.
  • If the Respondent 1 along with her son, are unable to find premises on leave and license basis within a period of 08 weeks from today, the Petitioner shall allow them to reside in her fat at Nalasopara, until they find a premises of their choice on leave and license basis.
  • Respondent 1 shall pay maintenance charges, electricity, telephone, etc. for the period that she and her son occupy the flat at Nalasopara.
  • Petitioner shall move to her flat once respondent 1 and her son vacate the flat.
  • Since the share certificate issued by the Society admittedly stands in the sole name of the husband of the Petitioner, who passed away intestate on 26th January, 2011, the Petitioner shall not sell, alienate, encumber and part with possession or create third party rights in respect of the said fat during her lifetime, without seeking permission of this Court and without giving notice to all the legal heirs of her husband. However, the Petitioner will be entitled to execute her Will and bequeath her share in the said fat to person/s of her choice.
  • If any of the daughters of the Petitioner and / or any other relatives or any person starts residing in the said fat along with the Petitioner as a Caretaker, such person shall vacate the said fat immediately upon the demise of the Petitioner and shall not make any claim on the said fat, on the ground that he / she / they were residing therein along with the Petitioner.
  • Since Curt has not finally determined any allegations made by either parties, it is made clear that non on the allegations stand established. Petitioner or their family members/ or any other persons hall not publicise any allegations against each other in any manner whatsoever .

Matter was disposed off in the above terms. [Rajani B. Somkuwar v. Sarita Somkuwar, 2020 SCC OnLine Bom 722  , decided on 19-06-2020]

Also Read:

Bom HC | “If children cannot take care of their parents and allow them to live in peace, they atleast ought not to make their life a living hell”; Court sternly warns daughter to not harass mother physically & mentally

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and L. Nageswara Rao and Sanjiv Khanna, JJ has refused to hold  Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (Rent Act) merely because it grants a right to claim eviction for bona fide need by summary procedure to a certain group of landlords, that is, Non-Resident Indians subject to and on the satisfaction of statutory conditions which incorporate a check on frivolous evictions.

The Court said that the plea that Section 13-B ought to be struck down on the ground that similar rights can be extended to other landlords was without substance, as

“It rests with the legislature to make laws and extend it to other similarly situated persons. The rent act(s) invariably give similar rights by a controlled mechanism and alluded riders to various other classes/groups of landlords, namely, government servants, members of armed forces, the retired or soon to retire employees of the Central and the State Governments, widows, etc.”

The Court, further, explained that the right of Non-Resident Indians to initiate eviction under the summary procedure provided in Section 18-A of the Rent Act is not an unfettered and absolute right. It is subject to satisfaction of various pre-requisites and imperatives that ensure and check potential abuse by resorting to a short-circuit procedure. The requirement should arise from a genuine need of the Non-Resident Indian landlord or his dependent. Such landlord should be an owner for five years preceding the date of filing of the eviction petition. There is a cap on permitting the use of the provision which is available only once in a lifetime and only in respect of one building. There are restrictions and constraints on the re-sale and re-letting and a further requirement to possess the property for a continuous period of three months after the possession is taken.

It was, hence, noticed that the pre-conditions and post possession restrictions suggest that Section 13-B serves a specific policy objective to ensure the right of Non-Resident Indians to occupy their property in the Union Territory of Chandigarh and the State of Punjab as the case may be, after “returning” to their country. This right has to be balanced with the right of the tenants to establish their case on merits by disproving the genuine requirement of the Non-Resident Indians.

“Section 13-B cannot, therefore, be treated as an arbitrary classification that infringes and violates Article 14 of the Constitution.”

[Ram Krishan Grover v. Union of India, 2019 SCC OnLine SC 1469, decided on 14.11.2019]

Case BriefsHigh Courts

Gujarat High Court: A Division Bench of S.R. Brahmbhatt and A.P. Thaker, JJ. dismissed a PIL filed by the petitioner.

The applicant filed a PIL in the Court and the following was prayed for:

  • The Court should declare the action of the respondent authorities in proposing the implementation of the slum rehabilitation scheme for the slum-dwellers of Rathod Vas Village as unconstitutional, illegal and without jurisdiction to the extent the same proposes shifting of location that too on payment of amount price under the JNURM BSUP Scheme.
  • Respondents must be directed to propose a slum housing project or allot them houses in the housing project situated in the closest proximity under the slum rehabilitation scheme without mandating any payment from the slum dwellers as prescribed under the Slum Rehabilitation Act and Slum Policies.
  • Respondent must be directed to pay the rent to the slum-dwellers for the inter-magnum period of their relocation from the slums till the completion and allotment of houses.

On these grounds the petitioner wanted the Court to pass an order restraining the respondent authorities from evicting the slum-dwellers.

The contentions of the petitioner were that the respondents did not have the right to uproot and shift the slum dwellers irrespective of they being registered as slum dwellers or not as per the Gujarat Slum Areas (Improvement, Clearance and Re-development) Act, 1973. Secondly, the scheme under which the rehabilitation is offered also requires payment by the beneficiary, which also is not in accordance with the scheme, as while offering rehabilitation there ought not to have been any requirement of payment on the part of the occupant.

The respondent argued that the very petition was ill-conceived and must be dismissed as the petitioner created an undue hurdle in the way of the beneficiary for whom the petition is filed. Secondly, the petitioner had basically pleaded for the encroachment surrounding Vadsar Pond. They spoke about the rights of the beneficiary party to seek rehabilitation at a place of choice with payment of a minimum amount.

The Court took all the arguments into consideration and instructed the petitioner to apply to the Corporation for grant of alternative accommodation in accordance with the law and disposed of the petition.[Bhaliya Bhikhabhai Ramjibhai v. State of Gujarat, 2019 SCC OnLine Guj 1491, decided on 25-07-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: The instant petition involved a question that whether the eviction of tenant could be ordered for settling married son of the landlord under Section 14(3)(a)(i) of H.P. Urban Rent Control Act, 1987, even the same was not covered by Section 14(3)(d) of the Act. The same question was contemplated by Tarlok Singh Chauhan, J.

Factual matrix of the case was that the landlord filed a rent petition under Section 14 of the Act of 1987, before the Rent Controller. He sought eviction of the tenant on the ground that his son intended to settle his business in the same premises and that since he and his wife were old, they wanted to live with their son at Solan. The landlord also claimed arrears of rent and sought eviction on the ground of material addition and alteration being carried out by the tenant in the premises in question.

The tenant contested the petition tooth and nail and denied the grounds taken in the petition seeking his eviction from the premises in question. Subsequently, an order was passed in favor of the landlord and the tenant-petitioner was directed to be evicted on the grounds of non-payment of arrears of rent and that the son of the landlord needed the premise for the running business. The tenant was aggrieved by the order and he went into an appeal, the appellate authority dismissed his appeal and hence, the tenant had no other option but to file the instant petition.

Pratap Singh Gover, counsel for the landlord, relied on cases where the similar reiteration of law was found in the Judgments, Nand Lal Sharma v. Bimla Sharma, HLJ 2007 (HP) 1112; Jasvinder Singh v. Kedar Nath, HLJ (2012) (HP) 1452; Jagat Ram Chauhan v. Avinash Partap, HLJ 2014 (HP) 420 etc. further the counsel presented the witnesses, one of them was the son of the landlord, who testified that the said premise was needed by them, as his parents were old and he wanted to start his own business, but for the time being he was residing in Delhi.

On the contrary, tenant appeared as a witness and deposed that son of the landlord was residing abroad in Mexico and was doing business there and he had no intention to shift or settle at the said premise. He stated that the landlord intended to sell the tenanted premises and the proposed buyer had been forcing the landlord to get the tenanted premises vacated and in order to give vacant possession to the buyer, the landlord had concocted false plea of bona fide requirement.

The Court after the submissions of the parties observed that, there was no reason to doubt the bona fide requirement of the landlord as admitted, he was a senior citizen aged about 83 years and thus required someone to look after him and his property. The testimony of the son of the landlord was also not doubted. It was further observed that the tenant had no proof of what he alleged that the landlord wanted to sell the premise. Hence, the Court found no merit in the petition and dismissed the same.[Mandeep Singh v. Gian Chand, 2019 SCC OnLine HP 1029, decided on 18-07-2019]

Case BriefsHigh Courts

Sikkim High Court: Bhaskar Raj Pradhan, J. confirmed a decree of eviction passed against the appellant-tenant by the District Judge on the bonafide requirement of the landlord.

The sole ground for eviction being contended in the application was the requirement of suit premises for the personal occupation of the landlord. Under the relevant statutory notification, the landlord could evict the tenant only on showing the bonafide requirement for personal occupation. A holistic reading of the plaint suggested that the landlord required the suit premises as his house was in a dilapidated condition; his ill health including mental illness for which he desired to accommodate a help; to accommodate his growing children who did not have adequate personal space in the house and who were pestering him for it which was causing him mental stress; to establish them in business as they were completing their education; etc.

The appellant -tenant was represented by Laxmi Chakraborty and Manju Rai, Advocates. Per contra, Zangpo Sherpa, Deven Sharma, Jushan Lepcha and Mon Maya Subba, Advocates represented the respondent-landlord.

On perusal of the record, the High Court found the facts as claimed of the landlord to be true. Referring to its earlier case in Pradeep Golyan v. Durga Prasad Mukhia, 2016 SCC OnLine Sikk 225, the Court observed: “That personal occupation of the landlord includes the requirement of the dependents as well is now well settled.” The landlord pleaded hardship and proved it. He proved a bonafide requirement of personal occupation. Furthermore, the appellant did was unable to show any special equities in his favour against the eviction.

In such circumstances, the Court confirmed the decree of eviction passed by the District Judge. However, considering the fact that the appellant was in occupation of the suit premises and doing his business from there since 1999, he was given four months’ time to vacate the suit premises on the condition that he will continue to pay rent till then. [Bishnu Prasad Bhagat v. Prakash Basnett, 2019 SCC OnLine Sikk 84, decided on 15-06-2019]

Hot Off The PressNews

Supreme Court: After the Centre sought stay on the order which directed the forced eviction of more than 1,000,000 tribals and other forest-dwelling households from forestlands across 16 states on February 13, 2019, the Court has put a stay on the said order and has asked the concerned States to submit details of the process adopted to access the claims under the  Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.

The matter will next be taken up on July 10, 2019.

(Source: ANI)
Hot Off The PressNews

Supreme Court: After the Court ordered the forced eviction of more than 1,000,000 tribals and other forest-dwelling households from forestlands across 16 states on February 13, 2019, it has agreed to hear the plea of the Central Government seeking stay on the order.

The 3-judge bench of Arun Mishra, Navin Sinha and Indira Banerjee, JJ had, on February 13, 2019, directed the Chief Secretaries of all the 16 States to

“ensure that where the rejection orders have been passed, eviction will be carried out on or before the next date of hearing. In case the eviction is not carried out, as aforesaid, the matter would be viewed seriously by this Court.”

The court’s orders came in a case filed by wildlife groups questioning the validity of the Forest Rights Act. The petitioners had also demanded that all those whose claims over traditional forestlands are rejected under the law should be evicted by state governments as a consequence.

The Forest Rights Act, which was passed during the Congress-led United Progressive Alliance’s first tenure, requires the government to hand back traditional forestlands to tribals and other forest-dwellers against laid down criteria. The Act, passed in 2006, has seen opposition from within ranks of forest officials as well as some wildlife groups and naturalists.

Tribal groups contend that their claims have been rejected systematically in some states and need to be reviewed. In several states there have been reports on administrations going particularly slow on even accepting community-level claims.

Case BriefsSupreme Court

Supreme Court: The Supreme Court has ordered the forced eviction of more than 1,000,000 tribals and other forest-dwelling households from forestlands across 16 states after the government failed to defend the validity of the Forest Rights Act. The 3-judge bench of Arun Mishra, Navin Sinha and Indira Banerjee, JJ directed the Chief Secretaries of all the 16 States to

“ensure that where the rejection orders have been passed, eviction will be carried out on or before the next date of hearing. In case the eviction is not carried out, as aforesaid, the matter would be viewed seriously by this Court.”

It also asked the Chief Secretaries to indicate, by way of an affidavit, as to why after the rejection of the claims, which have attained finality, eviction has not been made. The next date of hearing is set for July 24, 2019.

The court’s orders came in a case filed by wildlife groups questioning the validity of the Forest Rights Act. The petitioners had also demanded that all those whose claims over traditional forestlands are rejected under the law should be evicted by state governments as a consequence.

The Forest Rights Act, which was passed during the Congress-led United Progressive Alliance’s first tenure, requires the government to hand back traditional forestlands to tribals and other forest-dwellers against laid down criteria. The Act, passed in 2006, has seen opposition from within ranks of forest officials as well as some wildlife groups and naturalists.

Tribal groups contend that their claims have been rejected systematically in some states and need to be reviewed. In several states there have been reports on administrations going particularly slow on even accepting community-level claims.

[Wildlife First v. Ministry of Forest and Environment, 2019 SCC OnLine SC 238, order dated 13.02.2019]

(With inputs from Business Standard)

Case BriefsHigh Courts

Madhya Pradesh High Court: Petitioner preferred this civil revision before a Single Judge Bench of Rajeev Kumar Shrivastava, J., under Section 115 of Civil Procedure Code, against the order passed by 3rd Civil Judge, Class-II, whereby the objection raised by the petitioner under Section 47 read with Section 151 was rejected.

Facts of the case were such that respondent had purchased a shop which is in question, from a person Khusro who is the power of attorney holder of late Jahan. It was alleged that petitioner occupied the shop and failed to pay rent to respondent to whom the shop actually belong by virtue of a sale deed. Petitioner had submitted that they have no relation with the respondent and all the construction done on the shop had been done by them. Trial Court affirmed eviction of petitioner from the shop in question. Later an execution case was filed which was objected under Section 47 read with Section 151 praying for stay of the execution proceedings but the same was denied. Hence, this revision. Petitioner contended that the executing Court should have allowed petitioner to give evidence in order to substantiate and prove his objection, therefore, the impugned order was bad in law and should be set aside.

High Court was of the view that this revision petition should be dismissed. On the basis of facts and circumstances of the case, it was found that decree of eviction was affirmed by the first appellate Court and second appellate Court. The objection raised were not sustainable due to the well-settled principle that Executing Court cannot go beyond the decree. Therefore, this revision petition was dismissed. [Mohasin Ulla Khan v. Nabila Rahil, 2018 SCC OnLine MP 949, Order dated 13-12-2018]

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Mohit Kumar Shah, J. while hearing a civil writ petition ruled that the district administration was not empowered to order sealing of a property and direct eviction of the possessor therefrom.

The present petition was filed praying for quashing order of Sub-Divisional Magistrate, Gaya whereby petitioner’s shop had been sealed on the basis of a complaint of his landlady alleging that despite demanding the petitioner-tenant to vacate the shop, he had refused to do so and had instead, threatened her.

The Court opined that the District administration was not empowered to seal the shop of the petitioner at the instance of his landlady. Petitioner’s eviction or sealing of his shop could have taken place only after following the due process of law. If the landlady wanted to evict the petitioner, she was free to approach the Court of competent civil jurisdiction for the said purpose.

In view of the above, the petition was allowed and impugned order was quashed. District Administration was directed to open the seal of petitioner’s shop and hand over its possession to him within three days of the date of the present order.[Ram Pravesh Yadav v. State of Bihar, 2018 SCC OnLine Pat 2170, decided on 05-12-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Vinod Goel, J. dismissed a revision petition filed against the order of the Additional Rent Controller whereby he allowed the eviction petition filed by the respondent-landlord under Section 14(1)(e) of the Delhi Rent Control Act, 1958.

The petitioner was a tenant of the respondent. The respondent, in the eviction petition filed by him, had sought ejectment of the petitioner from the suit property. the ground taken by him was a bona fide requirement. It was pleaded that the suit property was required by the respondent for expansion of the business. The petitioner, per contra, submitted that the said property was not suitable for expansion of business as sought by the respondent. the Additional Rent Controller, however, decreed the suit and passed the eviction orders against the petitioner. Aggrieved thereby, he filed the instant revision under Section 25-B of the DRC Act.

The High Court, while adjudicating on the matter, referred to a Supreme Court decision in Baldev Singh Bajwa v. Monish Saini, (2005) 12 SCC 778. It was observed that whenever a landlord seeks ejectment of a tenant for bona fide requirement, it shall be presumed to be genuine and bona fide. Furthermore, the burden to rebut the said presumption lies on the tenant; however, the mere assertion on part of the tenant does not suffice. In the instant case, the testimony of the respondent as to his bona fide requirement went unrebutted. In such view of the matter, the revision petition was dismissed and the order impugned was accordingly upheld. [Metro Bearings v. Faizunnisa, 2018 SCC OnLine Del 12313, Order dated 31-10-2018]

Case BriefsForeign Courts

Supreme Court of Democratic Republic of Sri Lanka: A Bench comprising of S. Eva Wanasundera PCJ, H.N.J. Perera and Murdu Fernando, JJ., set aside the judgment of the lower courts, and granted the relief sought by the plaintiffs in the present case.

The pertinent facts of the case are that the defendant had come into the ownership of two small allotments of land by means of a title deed, which was duly attested by the notary public. She had transferred the same to a third party named Premlatha for a purchase price of Rs. 500,000, as stated by the notary public. Premlatha, by means of another deed, transferred the said property to the plaintiff. On the very same day on which this transfer took place, the plaintiff entered into a lease agreement in favour of the defendant, which was for a period of two years and the lease amount was Rs. 12000 per year, which the defendant agreed to pay in installments of Rs. 500 every month. After the expiry of the lease period, the defendant had refused to move out, as a result of which the plaintiffs filed an action for ejection against the defendant. In the trial, the defendant had presented evidence, but had not been present for cross examination. In spite of the same, the district court had reserved the case for judgment, and further dismissed the plaint but did not grant the relief prayed for by the defendant. The High Court had upheld the decision of the District Judge. The contention of the defendant was that the transfer of the property to Premlatha was in the nature of a transaction of security, for which the defendant was paying interest, and as she had failed to ‘pay the loan’, she was unable to get the property retransferred to herself. The transaction between the defendant and Premlatha was in the nature of a trust, as the defendant never intended to pass the title of the property. The defendant was a witness to the deed which was signed between Premlatha and the plaintiff, and thus it is evident that there was no intention on the part of the defendant to retain her status as owner of the property, as the deed was for the sale of the property, for a consideration of Rs. 6 lakhs. The contention that the plaintiff was holding the property in trust for the defendant was also rejected by the court, which stated that ‘holding in trust’ is a concept which cannot pass or be transferred from one person to another.

The court placed reliance on the case of Dr. Rasiah Jeyarajah v. Yogambihai Thambirajahnee-Renganathan Pillei, 2015 SCC OnLine SL SC 8, to state that the plaintiff was entitled to evict the defendants from the property upon the conclusion of the lease agreement, and that there was no need to prove title over the premises. The plaintiff was not obligated under law to provide notice of termination of lease and license, contrary to what was held by the High Court.

Accordingly the appeal was allowed with costs and the judgment of the District Court and the Civil Appellate High Court set aside. [Hallewa Mangalika Jayasinghe v. Udeni Bandara Jayasinghe, SC Appeal 183/2016, order dated 28.09.2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of A.S. Chandurkar, J. allowed a civil revision application filed by the tenant — Dena Bank, against the order of the trial court whereby its application under Order 7 Rule 11(d) CPC for rejection of the plaint filed by the landlord for its eviction was dismissed.

The Bank filed the abovesaid application stating that in the light of provisions of Section 17(4-A) read with Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Act, 2002 (SARFAESI), the civil court had no jurisdiction in the suit. However, the application was rejected. Aggrieved thus, the Bank approached the High Court.

The High Court noted that according to Section 17(4-A), any person who is aggrieved by any of the measures referred to in Section 13(4) of  SARFAESI being taken by a secured creditor can approach Debts Recovery Tribunal and can raise a grievance. A person claiming tenancy or leasehold is also entitled to make such application under Section 17. As per Section 34, a civil court has no jurisdiction to entertain any suit or proceeding with regard to any matter which the DRT is empowered to adjudicate under SARFAESI. The High Court, on the basis of the above, held that the trial court rejected the application of the Bank without having regard to Section 17(4-A) and therefore committed a jurisdictional error. Hence, the order impugned was quashed and set aside. The application filed by the Bank under Order 7 Rule 11(d) was allowed. However, it was open to the landlord to take such other steps as permitted under law. The civil revision was accordingly allowed. [Dena Bank v. Pravin Vithalrao Dorkhande,2018 SCC OnLine Bom 2800, decided on 26-09-2018]

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Sanjay Kumar Gupta, J., dismissed a writ petition against the order of Respondent 5. The said order directed the petitioner to vacate the government accommodation given to him, by or before 08.08.2018.

The main issue, in this case, was whether Respondent 5 was justified in issuing an order for vacating the said premises without adopting the due course of law.

The Court, in this case, observed that it is an accepted fact that the petitioner was an unauthorized occupant of the said government premises because he ceased to hold the official status/position and the allottee of a Government accommodation, may it be a Government Servant, Minister or a Legislator, is required to vacate the accommodation allotted to him, after he ceases to hold the official status/position. The Court further applied the ‘useless formality theory’ according to which if there is no possibility of change or improvement in a situation even after hearing the person against whom the order is passed, then such a formality can be avoided.

The Court held that since petitioner was an unauthorized occupant of the said government accommodation for a long time now, hence he has no indefeasible right to be heard before issuing the order of eviction of public premises. Concluding that the petitioner has failed to show any valid and reasonable cause to retain the Government Accommodation in question after the petitioner ceased to be Minister or Member of State Legislative Assembly, hence his petition was dismissed.[Thakur Randhir Singh v. State of J&K,2018 SCC OnLine J&K 505, order dated 13-08-2018]

Case BriefsSupreme Court

Supreme Court: Uday U. Lalit, J. delivered the judgment for Abhay Manohar Sapre, J.  and himself whereby the Court reiterated that no eviction can be ordered unless grounds for seeking eviction are made out.

The appellant-tenants and respondent-landlord entered into a lease agreement. Subsequently, the respondent wanted the premises to be evicted which effort was resisted by the appellants. The matter became a dispute and a police complaint was filed. A written settlement was reached between the parties under which the appellants agreed to vacate the premises. The appellant disputed the said agreement alleging that they were made to enter into the compromise by coercion under police pressure. The matter travelled through various competent authorities; the Principal Subordinate Judge allowed the application filed by the appellant; however, on appeal by the respondent, the High Court reversed the order of the said Judge. Aggrieved thus, the appellants preferred the instant appeal.

The Supreme Court referred to its earlier judgments including K. K. Chari v. R.M. Seshadri, (1973) 1 SCC 761 and Nagindas Ramdas v. Dalpatram Ichharam, (1974) 1 SCC 242. The Court observed that the common thread running through the judgments referred was that ‘in cases where protection under Rent Act is available, no eviction can be ordered unless grounds seeking eviction is made out, even in a case where parties have entered into a compromise. Moreover, invalidity on that count can even be raised in execution.’ In the present case, however, noted the Supreme Court, the order of the High Court did not even remotely note that any particular ground under the Rent Act was made out. In the view of the Court, the order passed by the Principal Subordinate Judge was correct and did not call for any interference by the High Court. Therefore, the order impugned was set aside and the appeal was allowed. [Alagu Pharmacy v. N. Magudeswari,2018 SCC OnLine SC 961, dated 14-08-2018]

Case BriefsSupreme Court

Supreme Court: Deciding the question as to whether the order passed by the City Civil Court in exercise of power under Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, as an Appellate Officer, is in the capacity of a Civil Court or persona designate, the 3-judge bench of Dipak Misra, CJ and Amitava Roy and AM Khanwilkar, JJ held:

“the Appellate Officer while exercising power under Section 9 of the 1971 Act, does not act as a persona designata but in his capacity as a pre-existing judicial authority in the district (being a District Judge or judicial officer possessing essential qualification designated by the District Judge).”

It was said that being part of the district judiciary, the judge acts as a Court and the order passed by him will be an order of the Subordinate Court against which remedy under Article 227 of the Constitution of India can be availed on the matters delineated for exercise of such jurisdiction.

Explaining the provision under Section 9 f the Act, the Court said:

“when the Appellate Officer is either the District Judge of the district or any another judicial officer in that district possessing necessary qualification, who could be designated by the District Judge, the question of such investiture of power of an appellate authority in the District Judge or Designated Judge would, by no standards, acquire the colour or for that matter trappings of persona designate.”

Explaining further, the Court said that the District Judge or Principal Judge exercises judicial power of the State and is an authority having its own hierarchy of superior and inferior Courts, the law of procedure according to which it would dispose of matters coming before it depending on its nature and jurisdiction exercised by it, acting in judicial manner. Hence, the District Judge/Principal Judge of the City Civil Court and other judicial officers of these Courts possessing necessary qualifications constitute a class and cannot be considered as persona designata. The Appellate Officer, therefore, has to function as a Court and his decision is final in terms of Section 10 of 1971 Act. The Bench said:

“The legislative intent behind providing an appeal under Section 9 before the Appellate Officer to be the District Judge of the concerned District  Court in which the public premises are situated or such other judicial officer in that district possessing necessary qualification to be designated by the District Judge for that purpose, is indicative of the fact that the power to be exercised by the Appellate Officer is not in his capacity as persona designata but as a judicial officer of the pre-existing Court.”

[Life Insurance Corporation of India v. Nandini J. Shah, 2018 SCC OnLine SC 142, decided on 20.02.2018]

Case BriefsSupreme Court

Supreme Court: Deciding a short question of law as to whether the requirement of the landlord for own occupation could also mean occupation by a member of the family, the bench of Kurian Joseph and A.M. Khanwilkar, JJ said that mere non-examination of the family member who intends to do the business cannot be taken as a ground for repelling the reasonable requirement of the landlord.

According to the J&K High Court, the appellant has failed to establish her reasonable requirement for own occupation as per Section 11(1)(h) of the Jammu and Kashmir Houses and Shop Rent Control Act, 1966. Having not examined the son who intends to do the business, the requirement of own occupation was not established.

In the present case, the landlord was not happy and content with the paltry rent received from the premises and intended to engage her unemployed and uneducated son in the business at the premises. Considering the facts of the case, the Court said that the eviction is not sought on the last limb of Section 11(1)(h) of the Act namely, “for the occupation of any person for whose benefit the house or shop is held”. The premises sought to be evicted is not held for the benefit of the son alone; but the whole family. It is for the own occupation of the landlord and it is for the landlord to decide as to the best use the premises should be put to.

The Court said that the reasonable requirement by the landlord of the premises would depend on whether the landlord has been able to establish a genuine element of need for the premises which would depend on the facts and circumstances of each case. Merely because the landlord has not examined the member of the family who intends to do business in the premises, he cannot be non-suited in case he has otherwise established a genuine need. [Mehmooda Gulshan v. Javaid Hussain Mungloo, 2017 SCC OnLine SC 143, decided on 17.02.2017]

Case BriefsSupreme Court

Supreme Court: Dealing with the question as to whether the Civil Court would cease to have jurisdiction to try the suit of eviction if the suit property came under notified area during pendency of the suit, the Court held that as on the date of the institution of the suit legal right in favour of the landlord had already accrued and it stood crystallised under the law applicable to the building at that time, if during the pendency of the suit, Rent Act becomes applicable to the premises in question, that would be of no consequence and it would not take away the jurisdiction of civil court to dispose of a suit validly instituted.

Referring to various rulings of this Court, the Bench of Dr. A.K. Sikri and N.V. Ramana, JJ said that in order to oust the jurisdiction of civil court, there must be a specific provision in the Act taking away the jurisdiction of the civil court in respect of those cases also which were validly instituted before the date when protection of Rent Act became available in respect of the said area/premises/tenancy. Further In case aforesaid position is not accepted and the protection of the Rent Act is extended even in respect of suit validly instituted prior in point of time when there was no such protection under the Act, it will have the consequence of making the decree, that is obtained prior to the Rent Act becoming applicable to the said area/premises, inexecutable after the application of these Rent Act in respect of such premises. This would not be in consonance with the legislative intent.

In the present case the premises in-question was initially outside the ambit of rent legislation, however, during the pendency of the suit and before it could be finally decided, the area in question was brought within the sweep of rent legislations by requisite notifications. The effect of such coverage was to give protective umbrella to the tenants. As a fortiorari, the landlord can now evict the tenant only by taking recourse to the rent legislation that too, by filing the petition for eviction under the Rent Act before the Rent Controller/Tribunal constituted under the said Acts. [Rajender Bansal v. Bhuru, 2016 SCC OnLine SC 1151, decided on 18.10.2016]

Case BriefsSupreme Court

Supreme Court: In a matter relating to eviction of the tenant, the bench of J. Chelameswar and Abhay Manohar Sapre, JJ held that any female, if she is having a legal right of residence in the building, is entitled to seek eviction of the tenant from such building for her need.

In the case the landlady of a shop had asked the tenant to vacate the property on account that her daughter, who had a clinic adjacent to the concerned shop, wanted to expand her clinic as the area of the existing shop was inadequate to run a clinic. The Tenant, however, contended that the need of the appellant was not bona-fide as the appellant’s daughter was not a member of family as defined under Section 3(g) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 because she is a married daughter whereas Section 3(g)(iii) include only an “unmarried daughter”. The Allahabad High Court had overturned the ruling of the Prescribed Authority/Civil Judge and the first appellate court and had held that the daughter was not a family member under the Act.

The Court, rejected the said contention of the tenant and held that the inclusive part of the definition under Section 3(g) of the Act, which is enacted only for the benefit of “female” in relation to the landlord, adds one more category of person in addition to those specified in clauses (i) to (iii), namely, “any female having a legal right of residence in that building”. In other words, in order to claim the benefit of expression “family”, a female must have a “legal right of residence” in the building.

Considering the fact that appellant’s husband, the original owner of the property in question, died intestate and on his death, the appellant, two sons and four daughters inherited the estate left by Dr. Ahsan Ahmad, which included the building, the Court said that the appellant’s daughter was a family member under the Act and hence, the appellant’s need was bona-fide. [Gulshera Khanam v. Aftab Ahmad, 2016 SCC OnLine SC 1001, decided on 27.09.2016]