eviction

Case BriefsSupreme Court

Supreme Court: In the case where ten times adjournments were given between 2015 to 2019 and even twice the adjournments were granted as a last opportunity and even the cost was imposed, the bench of MR Shah* and AS Bopanna, JJ has held that the courts shall be very slow in granting adjournments and they shall not grant repeated adjournments in routine manner.

“Time has now come to change the work culture and get out of the adjournment culture so that confidence and trust put by the litigants in the Justice delivery system is not shaken and Rule of Law is maintained.”

The Court was dealing with “a classic example of misuse of adjournments granted by the court”.

A suit for eviction, arrears of rent and mesne profit was filed in the year 2013. Thereafter, despite the repeated adjournments sought and granted by the court and even twice the adjournments were granted as a last opportunity and even the cost was imposed, the defendant failed to cross examine the plaintiff’s witness.

Although the adequate liberty was given to the defendant to cross examine the plaintiff’s witness, they never availed of the same and went on delaying the proceedings by repeated prayers of adjournment and unfortunately the Trial Court and even subsequently the High Court continued to grant adjournment after adjournment and as such contributed the delay in disposal of the suit which as such was for eviction. It was also brought to the Court’s notice that as such now even the main suit has been disposed of.

The Supreme Court called such approach ‘wholly condemnable’ and said,

“Law and professional ethics do not permit such practice. Repeated adjournments on one or the other pretext and adopting the dilatory tactics is an insult to justice and concept of speedy disposal of cases. Petitioner – defendant acted in a manner to cause colossal insult to justice and to concept of speedy disposal of civil litigation.”

Taking the example of the case at hand, the Court noticed that,

“Many a times the suits are filed for eviction on the ground of bonafide requirements of the landlord. If plaintiff who seeks eviction decree on the ground of personal bonafide requirement is not getting the timely justice and he ultimately gets the decree after 10 to 15 years, at times cause for getting the eviction decree on the ground of personal bonafide requirement may be defeated. The resultant effect would be that such a litigant would lose confidence in the justice delivery system and instead of filing civil suit and following the law he may adopt the other mode which has no backing of law and ultimately it affects the rule of law.”

Noticing that arrears are mounting because of such dilatory tactics and asking repeated adjournments by the advocates and mechanically and in routine manner granted by the courts, the Court said that,

“Many a times, the task of adjournments is used to kill Justice. Repeated adjournments break the back of the litigants. The courts are enjoying upon to perform their duties with the object of strengthening the confidence of common man in the institution entrusted with the administration of the justice. Any effort which weakens the system and shake the faith of the common man in the justice dispensation has to be discouraged.”

The Court was also conscious of the fact that whenever the trial courts refused to grant unnecessary adjournments many a times they are accused of being strict and they may face displeasure of the Bar. However, the judicial officers shall not worry about that if his conscience is clear and the judicial officer has to bear in mind his duties to the litigants who are before the courts and who have come for justice and for whom Courts are meant and all efforts shall be made by the courts to provide timely justice to the litigants.

Therefore, it was directed that the courts shall not grant the adjournments in routine manner and mechanically and shall not be a party to cause for delay in dispensing the justice. The courts have to be diligence and take timely action in order to usher in efficient justice dispensation system and maintain faith in rule of law.

[Ishwarlal Mali Rathod v. Gopal, Special Leave to Appeal (C) No(s). 14117-14118/2021, order dated 20.09.2021]

Counsels: Mr. N.K. Mody, Sr. Adv. Mr. Shishir Kumar Saxena, Adv. Mr. R.N. Pareek, Adv. Mr. Prabhuddha Singh, Adv. Ms. Soumya Chaturvedi, Adv. Ms. Sharmila, Adv. Mr. Praveen Swarup, AOR

*Order by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Case BriefsHigh Courts

Bombay High Court: Noting the misery of parents aged 90 years, G.S. Kulkarni, J., observed that,

“Daughters are daughters forever and sons are sons till they are married” albeit there would surely be exemplary exceptions.

A Sad Case

In the present matter, petitioner 1 alongwith his wife petitioner 2 and their daughter petitioner 3 dragged his parents-respondents 1 and 2, aged 90 and 89 years in protracted legal proceedings.

As a last resort, the parents had to invoke the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 on which the Maintenance Tribunal granted relief to the parents.

Aggrieved with the decision of the Maintenance Tribunal the present petition was filed.

Misery of Parents 

At such an advanced stage of lives, parents had to reach the tribunal as petitioners 1 and 2 were forcibly trying to grab the flat in which the parents were residing and had permitted the petitioners to reside who were harassing and torturing the parents since many years.

Flat in Question

The flat initially belonged to the father and later gifted it to his two daughters by gift deed.

Metropolitan Magistrate had prohibited petitioner 1 and 2 from committing any act of domestic violence and had restrained them from dispossessing or in any manner disturbing the possession of the mother from the shared household.

The above order was passed on the complaint of the mother.

Analysis

High Court noted that the present case was a ‘classic case’ where the petitioners 1 and 2 intended to prevent the parents from leading a normal life at their old age of about 90 years.

Defeating Parents right to lead a normal life

It was stated that the property in question was not an ancestral property on which the petitioner 1 could claim any legal right so as to keep himself on such property alongwith his family and foist themselves on the parents against their wishes by remaining on the property without any legal rights.

Hence, Maintenance Tribunal had rightly recognized the rights of the parents on the property.

Concluding the matter, Court noted that the present case was a story of desperate parents who intend to be at peace at such advanced stage in life.  Whether such bare minimum expectations and requirement should also be deprived to them by an affluent son, is a thought which the petitioners need to ponder on.

Adding to the above, Bench stated that the son seemed to be blinded in discharging his obligations to cater to his old and needy parents and on the contrary dragged them to litigation.

It is painful to conceive that whatever are the relations between the son and the parents, should the son disown his old aged parents for material gains?

While directing the petitioners to vacate the flat in question alongwith his family members, the petition was rejected. [Ashish Vinod Dalal v. Vinod Ramanlal Dalal, 2021 SCC OnLine Bom 2976, decided on 15-09-2021]

Advocates before the Court:

 Mr Yashpal Thakur with Mr Surendra Raja with Mr Mukund Pandya, for the Petitioner.

Mr Abhay Khandeparkar, Senior Advocate i/b. Mr Kunal Tiwari, for Respondent Nos.1 and 2.

Ms Vaishali Nimbalkar, AGP for the State.

Case BriefsForeign Courts

Supreme Court of The United States: While deciding upon the instant emergency application brought in by the Alabama Association of Realtors challenging the nationwide moratorium on evictions of any tenants during the Covid-19 pandemic; the Court with a ratio of 6:3, decided to end the federal moratorium on residential evictions citing that the Centers for Disease Control and Prevention (hereinafter CDC) clearly exceeded its authority under the Coronavirus Aid, Re­lief, and Economic Security Act, 2020 by taking the matters into its own hands and subsequent extension of the March 2020 moratorium through July 2021.

Background: In March 2020, Congress passed the Coronavirus Aid, Re­lief, and Economic Security Act to ease the burdens caused by the rapidly increasing COVID–19 pandemic. Among other reliefs, the Act im­posed a 120-day eviction moratorium for properties that participated in federal assistance programs or were subject to federally backed loans. When the eviction moratorium expired in July, Congress did not renew it. However, the CDC upon concluding that further action was needed “did what the Congress did not” and renewed the moratorium, covering all residential properties nationwide and imposing criminal penalties on violators.

The CDC’s moratorium was originally slated to expire on December 31, 2020, but Congress extended it for one month as part of the second Covid–19 relief Act. As the new deadline approached, the CDC again took matters into its own hands and extended its moratorium through March, then again through June, and ultimately through July 2021.

Contentions: The CDC contended that S. 361(a) of the Public Health Service Act allows it to ‘make and enforce such regulations (as in his judgment) which are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession’. Thus the provision gives the CDC broad authority to take whatever measures it deems necessary to control the spread of COVID–19, in­cluding issuing the moratorium.

The Realtor associations and rental property managers in Al­abama and Georgia meanwhile argued that the moratorium has put the landlords across the country at risk of irreparable harm by depriving them of rent payments with no guarantee of eventual recov­ery. Despite the CDC’s determination that landlords should bear a significant financial cost of the pandemic, many landlords have modest means, and preventing them from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property owner­ship—the right to exclude. It was also contended that the CDC has exceeded it statutory authority in renewing and extending the eviction moratorium.

Observations: The Majority comprising of John Roberts, C.J., Amy Coney Barrett, Brett Kavanaugh (concurring), Samuel Alito, Neil Gorsuch and Clarence Thomas, JJ., noted that it is indisputable that the public has a strong interest in combating the spread of the COVID–19 Delta variant, but “our system does not permit agencies to act unlawfully even in pursuit of desirable ends”. The Judges observed that the moratorium’s constant extension meant that the equities have begun to favour the landlords and their contentions became stronger because vaccine and rental-assistance distribution had improved since the stay was entered, while the harm to landlords had continued to increase. Perusing the aforementioned arguments of the CDC, the Court noted that the downstream connection between eviction and the interstate spread of disease is noticeably different from the direct tar­geting of disease that characterizes the measures identified in the statute. “Reading both sentences together, rather than the first in isolation, it is a stretch to maintain that S. 361(a) gives the CDC the authority to impose this eviction moratorium”.

Coming down heavily upon the CDC and the Government, the Court also observed that the issues at stake are not merely financial. The mor­atorium intrudes into an area that is the particular domain of state law: the landlord-tenant relationship- “This claim of expansive authority under S. 361(a) is un­precedented. Since that provision’s enactment in 1944, no regulation premised on it has even begun to approach the size or scope of the eviction moratorium. And it is further amplified by the CDC’s decision to impose criminal penal­ties of up to a $250,000 fine and one year in jail on those who violate the moratorium. Section 361(a) is a wafer-thin reed on which to rest such sweeping power”.

The Majority concluded by holding that even if the Government believed that its action was necessary to avert a national catastrophe, the same could not over­come a lack of Congressional authorization. It is up to Con­gress, not the CDC, to decide whether the public interest merits further action here. “If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it”.

Dissenting Opinion: Stephen Breyer, Sonia Sotomayor and Elena Kagan, JJ., disagreed with the observations of the majority and observed that the Court should not set aside the CDC’s evic­tion moratorium in this summary proceeding as the criteria for granting the emergency application have not been met in the instant matter. It was further observed that, “Applicants raise contested legal questions about an im­portant federal statute on which the lower courts are split and on which this Court has never actually spoken. These questions call for considered decision making, informed by full briefing and argument”.

[Alabama Association for Realtors v. Dept. of Health and Human Services, No. 21A23, decided on 26-08-2021]

Sucheta Sarkar, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Ujjal Bhuyan and Madhav J. Jamdar, JJ., while explaining the provisions under Maintenance and Welfare of Parents and Senior Citizens Act, 2007 also elaborated upon the concept of shared household and remanded the matter back to the Tribunal for Maintenance and Welfare of Parents and Senior Citizens.

In the present matter, the legality and validity of the order passed by the Deputy District Collector, acting as the Presiding Officer of the Tribunal for Maintenance and Welfare of Parents and Senior Citizens as challenged.

Respondent 1 was the mother-in-law of the petitioner. Petitioner alongwith her husband and minor daughter used to reside in a Flat along with respondent 1.

The above referred flat originally belonged to Anandlal Jasani who during his lifetime made nomination in respect of the said flat whereby 20% share of the flat was granted in favour of petitioner’s husband.

Since her marriage, the petitioner was living in the above-stated flat along with respondent 1 and the father-in-law till his death.

Petitioner claimed that the said flat is her matrimonial home as well as her shared household. Petitioner, her husband, daughter, and respondent 1 were residing in the said flat.

Further, the petitioner submitted that her husband was suffering from mental illness and depression because of which he required regular treatment and counselling and could not contribute to the earnings of the family.

Petitioners Allegation

Petitioner alleged that respondent 1 wanted to sell the stated flat and thereafter retain the sale consideration to herself to enable her to lead an affluent lifestyle. Petitioner and her husband were opposed to selling the flat.

Adding to the above, petitioner submitted that the said flat was not self-acquired property of respondent 1, rather it was an ancestral property of the family of the petitioner’s husband wherein petitioner’s husband, petitioner and their minor daughter had equal rights, title and interest.

Further, it was added that respondent 1 had the motive of ousting the petitioner, her husband and minor daughter from the flat and that was the reason why she filed a complaint before the Tribunal for Maintenance and Welfare of Parents and Senior Citizens for eviction of the petitioner and her husband from the flat to allow her to reside in the flat all by herself.

This Court had issued an order dated 15-04-2021 stating that no coercive steps should be taken against the petitioner.

Analysis, Law and Decision

Bench noted that Tribunal held that the flat was an ancestral property and that both respondent 1 and petitioner along with her husband had joint rights. In so far sale of the flat was concerned, it was beyond the jurisdiction of the tribunal.

In Tribunal’s opinion, as per Sections 4(2) and (3) of the 2007 Act, it was the obligation of the children or the relatives to maintain a senior citizen to the extent of the needs of such senior citizen.

Based on Sections 4,5,9, 13 and 23 of the 2007 Act, Tribunal decided and directed the petitioner and her husband to vacate the flat and to hand over the possession to respondent 1.

Whether the flat in question is a shared household and that petitioner has a right to reside in the shared household?

Supreme Court in S. Vanitha v. Deputy Commissioner, 2020 SCC OnLine SC 1023 concluded that claim of the appellant that the premises constitute a shared household within the meaning of the 2005 Act would have to be determined by the appropriate forum. The claim cannot be simply obviated by evicting the appellant in the exercise of the summary powers entrusted by the 2007 Act.

Question for consideration:

Whether the Tribunal under the 2007 Act can order eviction of a person from tenement in which he has ownership right to the extent of 20%?

Whether having regard to the mandate of Section 4 of the 2007 Act read with other provisions of the said 2007 Act, Tribunal can direct or order eviction of children or relative at the first instance itself or at a later stage to enforce an order of maintenance passed at the first instance?

Supreme Court in S. Vanitha v. Deputy Commissioner, 2020 SCC OnLine SC 1023 took the view that Tribunal under the 2007 Act may have the authority to order an eviction if it is necessary and expedient to ensure maintenance and protection of the senior citizen or parent.

Single Judge in Dattatrey Shivaji Mane v. Lilabai Shivaji Mane, 2018 SCC OnLine Bom 2246  took the view that the Tribunal can order eviction under the 2007 Act, as noticed above, such order was in the context of the tenement being the exclusive property of the parent/senior citizen which was not so in the present case.

Therefore, Court held that without expressing any opinion at this stage on the questions formulated by this Court above, it is essential for the Tribunal to first conclude, though summarily, as to whether the flat in question was an ancestral property or exclusively owned by respondent 1.

Further, the Court expressed that in terms of Section 9 of the 2007 Act, Tribunal must be satisfied that the parent has suffered neglect at the hands of the children or relatives or that they have refused to maintain the parent.

Under Section 5(3) of the 2007 Act, the Tribunal is mandated upon receipt of an application for maintenance to provide an opportunity of hearing to both the parties and to hold an enquiry for determining amount of maintenance.

Further, the procedure contemplated under the 2007 Act is summary in nature nonetheless Tribunal is required to find out as to whether the flat in question belongs exclusively to respondent 1 or it is an ancestral property where petitioner has also a right to ownership and/or residence through her husband.

Tribunal is also required to deal with the contention of petitioner that the flat in question is her shared household wherefrom she cannot be evicted.

As the Supreme Court had pointed out in S. Vanitha v. Deputy Commissioner,  2020 SCC OnLine SC 1023, both parents / senior citizens and the daughter-in-law are vulnerable groups in the Indian context and for protection of their rights the 2005 Act and the 2007 Act have been enacted.

In the above backdrop, the claims of the contesting parties would have to be decided which unfortunately does not appear to be the case in the instant proceeding. 

Hence, the High Court set aside the Tribunal’s order and remand the matter back to the Tribunal for fresh decision.[Ritika Prashant Jasani v. Anjana Niranjan Jasani, 2021 SCC OnLine Bom 1802, decided on 13-08-2021]

Advocates before the Court:

Mr. Kishor Maru for Petitioner. Mr. Anoshak Daver a/w. Ms. Kausar Banatwala, Ms. Neuty Thakkar and Ms. Tanishka Desai i/b. Mr. Tushar Goradia for Respondent No.1.
Ms. Anjana N. Jasani, Respondent in person.
Ms. Ritika Jasani, Petitioner in person.

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., held that:

The senior citizen can approach the Deputy Commissioner/DM for eviction from any property over which he/she enjoys rights and such order will be appealable to the Divisional Commissioner.

Petitioner who is the wife of respondent 4 and daughter-in-law of respondent 3 filed the present petition against the order of the District Magistrate.

Petitioner was evicted from the suit in the said order and said order was passed by the District Magistrate while exercising powers under Rule 22(3)(1) of the Delhi Maintenance and Welfare of Parents and Senior Citizens Rules, 2009.

Petitioner’s counsel submitted that the writ petition was ought to be entertained as an appeal under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 which can only be filed by a senior citizen.

Further, it was added that there appears to be some confusion as to which orders are appealable, to which forum and by whom. It is necessary to set out the provisions which are applicable separately qua maintenance and eviction proceedings.

Maintenance Proceedings 

The maintenance proceedings for the welfare of parents and senior citizens are concerned under Section 2(j), the said Act provides that the ‘Tribunal’ would be the forum for exercising the first jurisdiction.

‘Tribunal’ is defined under Section 2(j) as the ‘Maintenance Tribunal’ constituted under Section 7.

 Hence, the Maintenance Tribunal under Section 7 of the Act would be the ADM or the SDM of the concerned sub-division.

Further, it was added that, filing of appeals qua maintenance-related matters are governed by Section 15 of the Act.

Bench while referring to the decisions of Naveen Kumar v. GNCTD, WP (C) No. 1337 of 2020, decided on 05-02-2020; Amit Kumar v. Kiran Sharma, WP (C) No. 106 of 2021, decided on 06-01-2021 and Shumir Oliver v. GNCTD, WP (C) No. 2857 of 2021, decided on 03-03-2021, held that any ‘affected person’ can prefer the appeal and not just a senior citizen or parent.

Procedure in respect to maintenance would be to first approach the concerned ADM/SDM concerned and thereafter, the Appellate Tribunal which is presided over by the Deputy Commissioner of the District concerned.

With respect to eviction proceedings, the same are governed by the Delhi Maintenance and Welfare of Parents and Senior Citizens (Amendment) Rules, 2016.

Hence as per The Delhi Maintenance and Welfare of Parents and Senior Citizens Rules (Amendment) Rules, 2016, a senior citizen can approach the Deputy Commissioner seeking eviction of the son, daughter or any other legal heir from his ‘self-acquired property’ on account of his non-maintenance and ill-treatment.

With regard to eviction, the first forum would be the Deputy Commissioner/District Magistrate, therefore, a challenge to the order of Deputy Commissioner would lie before the Divisional Commissioner.

Act and the various Rules and Notifications thereto are not readily available to litigants, as also lawyers, in the form of a separate publication. This may be one of the causes for confusion in filing multiple writ petitions directly against the first order of the tribunal or, in the case of eviction, from the order of the Deputy Commissioner/DM.

High Court also added to its observations that, the appellate forum and the limitation period is not within the knowledge of litigants and sometimes even lawyers, it is directed that the following two sentences be added at the end of every order passed by the initial forum i.e. the Tribunal under Section 7 of the Act or, in eviction cases, the Deputy Commissioner under Rule 23(3) of the Rules. 

For maintenance cases:

“The present order would be appealable, under Section 16 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 read with Rule 16 of The Delhi Maintenance and Welfare of Parents and Senior Citizens Rules, 2009, to the Appellate Tribunal, presided over by the Deputy Commissioner of the concerned District. The period of limitation for filing of appeal is 60 days.”

For eviction cases:

“The present order would be appealable under Rule 22(3)(4) of The Delhi Maintenance and Welfare of Parents and Senior Citizens Rules, 2009, as amended on 19th December, 2016 before the Divisional Commissioner, Delhi. The period of limitation for filing of appeal is 60 days.”

While parting with the present decision, High Court held that the present order be communicated to all the Maintenance Tribunals and Appellate Tribunals, as also the concerned Presiding Officers who are exercising powers under the Rules.

“…order be also sent to the worthy Registrar General for placing a copy at the filing counter so that whenever writ petitions are filed against original orders, the Registry can also inform lawyers of the availability of the alternate remedy, in case they wish to avail of the same.”

 Impugned Order be appealable to the Divisional Commissioner under Rule 22(3)(4).

The petition was accordingly permitted to be withdrawn with liberty to the petitioner to approach the Divisional Commissioner.[Rakhi Sharma v. State,  2021 SCC OnLine Del 1327, decided on 05-03-2021]

Case BriefsHigh Courts

Jammu and Kashmir High Court: The Division Bench of Vinod Chatterji Koul and Ali Mohammad Magrey, JJ., had heard the instant PIL, directed to be registered by the Court on its own motion in terms State of J&K v. Mir Saifullah, CM No.4613 of 2020. The instant petition was regarding unauthorized/ illegal occupation of Government accommodation by the erstwhile allottees in the Union Territory of Jammu and Kashmir.

The Court had issued a notice to State directing it to file the details of properties/ official accommodations which were under illegal occupation of the erstwhile allottees including ex-Ministers/ ex-Legislators/ Bureaucrats in the Union Territory of Jammu and Kashmir. Pursuant to which the Estates Department, had filed the action taken report on 26-11-2020. According to the report:

“5. Many former ministers/ legislators/ retired officers/ politicians/political persons vacated Government accommodation after department served them notices, however, 74 of them are still occupying the Ministerial Bungalows/ Special Houses beyond the period of their allotment.  

  1. That the respondents have already given final eviction notices/ orders to all the illegal occupants.
  1. That besides above the Department has recovered rent of rupees 47,65,906 from illegal occupants w.e.f. February, 2020 to till date.”

Noticing that the government of Jammu and Kashmir was in the process of evicting the illegal/ unauthorized occupants in tune with the mandate of law and the rules governing the field the Bench expressed, 

“It is unfortunate that some former Ministers/ Legislators/ Retired Officers/ Politicians/ Political persons, etc., have illegally managed to continue to stay in the residential accommodation provided to them by the Government of Jammu and Kashmir, though they are no longer entitled to such accommodation.”

The Bench stated that the unauthorized occupants must realize that rights and duties go correlative to each other. Occupants must appreciate that their act of overstaying in the premise directly had infringed the right of another. The Bench further stated,

“Natural resources, public lands and the public goods, like Government bungalows/ official residence are public property that belongs to the people of the country.” 

Any former Minister/ Legislator/ Retired Officer/ Politician/ Political person, once demitted from office, stand on a par with the common citizen, though by virtue of the office held, he/ she may be entitled to security and other protocols as per the assessment of the concerned filed agency. But allotment of government bungalow, to be occupied during the lifetime of such persons, would not be guided by the constitutional principle of equality.

 While relying on the judgments of the Supreme Court in S. D. Bandi v. Divisional Traffic Officer, Karnataka: (2013) 12 SCC 631’; and Lok Prahari v. State of U.P. (2016) 8 SCC 389, the Bench reiterated that such illegal and unauthorized occupation was bad in law, and directed the authorities concerned to recover appropriate rent from the occupants of the said government accommodation for the period during which they were in unauthorized occupation of the said accommodation. The Bench stated,

“No law or direction could entirely control this act of disobedience, but for self-realization among the unauthorized occupants.”

Accordingly, the case was disposed of with the following directions:

  1. The directions passed by this Court from time to time in the matter of eviction of unauthorized/ illegal occupants should be strictly implemented by the authorities concerned in the same spirit in which they were meant to be;
  2.  The Chief Secretary of the Government of Jammu and Kashmir and the Secretary to Government of Jammu and Kashmir, Estates Department, should take all possible steps for ensuring eviction of the illegal/unauthorized occupants in tune with the mandate of law provided by  the Supreme Court in the two judgments referred to hereinabove;
  3. The Chief Secretary of the Government of Jammu and Kashmir and the Secretary to Government of Jammu and Kashmir, Estates Department, should ensure recovery of rent/ arrears of rent from the occupants of Government accommodation for the period for which they were in authorized/ unauthorized occupation of the said accommodation as Land Revenue.

[Union Territory of J&K v. Sumeera Jan, 2021 SCC OnLine J&K 85, decided on 18-02-2021]

Kamini Sharma, Editorial Assistant ahs put this story together.

Case BriefsHigh Courts

Kerala High Court: A. Hariprasad J., while hearing a revision petition, set aside the order passed by the Rent Control Appellate Authority, Kozhikode on the application filed under Section 5 of the Limitation Act and remitted the matter to be considered on merits as expeditiously as possible.

Revision petitioner (tenant) was sought to be evicted in RCP No. 80 of 2014 before the Rent Control Court, Kozhikode. The tenant was set ex parte in the proceedings. He filed an application for setting aside the ex parte order of eviction with a petition under Section 5 of the Limitation Act to condone delay of 145 days. The said application was dismissed by the Rent Control Court, finding that there is no sufficient cause to condone the delay. Thereafter, the tenant approached the Rent Control Court Appellate Authority, Kozhikode, with RCA No. 146 of 2017. The Rent Control Appellate Authority referring to some precedents, held that the Rent Control Court has no power to condone the delay by invoking Section 5 of the Limitation Act.

The Court herein referred to the judgment pronounced by the Full Bench in Faisal v. Vikas Chacko, 2020(6) KLT 722, wherein it was found that the Rent Control Court is having power under Section 5 of the Limitation Act to condone delay, if sufficient cause was shown. Placing reliance on the same, Court set aside the order by the appellate authority and directed for time-bound disposal.[K.K. Hamsa v. Athikottu, 2021 SCC OnLine Ker 383, decided on 22-01-2021]

Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy, JJ has observed that if an employee occupies a quarter beyond the specified period, the penal rent would be the natural consequence and such penal rent can be adjusted against the dues payable including gratuity.

The Court was hearing an appeal arising from a Jharkhand High Court judgment with respect to the right of a retired employee to retain quarters since the retiral dues were not paid. The respondent superannuated from service of SAIL on 30.11.1997. During his service period, he was occupying a Quarter in Bokaro Steel City, which was retained by him after retirement, as the gratuity and other retiral dues were not settled to him by SAIL. It was SAIL’s case that it was entitled to withhold the gratuity of the employee for non-vacation of the company’s accommodation and no interest was payable on the same.

Placing reliance on the Supreme Court’s decision in Secretary, ONGC Ltd. v. V.U. Warrier, (2005) 5 SCC 245, it was submitted before the High Court that in view of the statutory Rules the withholding of the gratuity is permissible.

In Secretary, ONGC Ltd. v. V.U. Warrier, (2005) 5 SCC 245 it was held,

“It is no doubt true that pensionary benefits, such as gratuity, cannot be said to be “bounty”. Ordinarily, therefore, payment of benefit of gratuity cannot be withheld by an employer. In the instant case, however, it is the specific case of the Commission that the Commission is having a statutory status. In exercise of statutory powers under Section 32(1) of the Act, regulations known as the Oil and Natural Gas Commission (Death, Retirement and Terminal Gratuity) Regulations, 1969 have been framed by the Commission. In Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi the Constitution Bench of this Court held that regulations framed by the Commission under Section 32 of the Oil and Natural Gas Commission Act, 1959 are statutory in nature and they are enforceable in a court of law.”

The High Court had observed,

“No penal rent could be levied from the appellants for the simple reason that the original writ petitioner was occupying the quarter in question after his retirement, for the fact that his retiral dues were not cleared by the Company.”

It, hence, held that the penal rent on the quarter in question could not be charged by the SAIL, rather only the normal rent was to be charged, and the amount of gratuity would carry the interest @ 6% per annum, as given to a similarly situated employee of SAIL itself, by the Supreme Court in Ram Naresh Singh v. Bokaro Steel Plant[1].

In Ram Naresh Singh Case, when the gratuity and the retiral dues of an employee were unpaid from the SAIL, the Supreme Court had ordered that the said amount be released alongwith the interest at the rate of 6% per annum from the date of retention of the amount till the date of actual payment, and in such circumstance, for retention of the quarter by the retired employee, only the normal rent (and not the penal rent) of the quarter was found to be leviable from the retired employee.

Relying on the said “order”, the High Court said,

“The original writ petitioner had a reasonable ground for retaining the quarter after his retirement as his retiral dues were not cleared by the Company, and subsequently, the quarter was also allotted in his favour for long term lease. As such, the original writ petitioner could not have been denied due interest on his retiral dues, which remained unpaid for a long time, and he even died without getting them. At the same time, he was also not liable to pay the penal rent on the Company’s accommodation retained by him.”

When the matter reached the Supreme Court, set aside the observations made by the High Court in paras 19 and 21 qua the principles of penal rent being charged and placed reliance on the judgment in Secretary, ONGC Ltd. v. V.U. Warrier, (2005) 5 SCC 245.

It further noted that the reliance placed in the impugned judgment on the case of Ram Naresh Singh case “is misplaced as is not even a judgment but an order in the given facts of the case.”

[Steel Authority of India Ltd. v. Raghabendra Singh, 2020 SCC OnLine SC 1063, order dated 15.12.2020]

[1] Civil Appeal No. 4740 of 2007, dated 31.03.2017

Also Read

Know Thy Judge| Justice Sanjay Kishan Kaul

Case BriefsHigh Courts

Allahabad High Court: Vivek Kumar Birla, J., while addressing a matter with regard to “shared household”, held that,

“daughter-in-law can be evicted without seeking decree of eviction against son with whom she had moved on the suit property after the marriage of the son of the plaintiff with the appellant.”

Appellant was married to the plaintiff’s son — Vijay Gandhi. In the year 2013, Vijay Gandhi deserted the appellant and filed a divorce petition under Section 13 of the Hindu Marriage Act.

Further, it has been noted that an FIR was lodged against the appellant by the plaintiff.

Plaintiff is the owner of the property wherein he permitted his son and the defendant to live on the first floor of his house. Defendant started harassing the plaintiff who is old and handicapped along with his wife.

Suit for Eviction

In view of the above incident, the plaintiff asked his son to vacate the house with the defendant, who later came back and refused to vacate the house. Hence suit for eviction was filed against the defendant.

Substantial question in the present appeal

(I) Whether as per definition of shared household provided under Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 appellant daughter-in-law can be evicted without seeking a decree of eviction against son with whom she had admittedly moved on the first floor of the suit property after the marriage of the son of the plaintiff with appellant?

Supreme Court in its decision, S.R. Batra v. Tarun Batra, (2007) 3 SCC 169, while considering the aspect of “shared household” held that where the plaintiff is the exclusive owner, it cannot be called a “shared household”. The wife’s claim for alternative accommodation against the plaintiff was rejected and was held that it can be claimed only against the husband and not against the in-laws or other relatives.

S.R. Batra v. Tarun Batra, (2007) 3 SCC 169: a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member.

Hence, in the Court’s opinion, no substantial question of law arose or can be raised in the present second appeal.

Order 1 Rule 3 and Rule 9 CPC

Further, the Court added that, it is not in dispute that the husband was not residing in the suit property and left the house. It is also not being questioned that if parents permit his son to live in their house he would be a licensee. If his wife is also living with him, she would also be a licensee.

Where the son has left and is not residing in the suit property, no relief is being or is claimed against him. Since he is not living in the suit property, question of filing a separate suit or which may attract any common question of law or fact would also not arise.

Lastly, answering the substantial question of law in the negative, bench once again cited the Supreme Court decision in S.R. Batra with regard to the shared household and the argument for counsel for the respondent (wife) that definition of the shared household includes a house where the person aggrieved lives or at any stage had lived in a domestic relationship was specifically considered and rejected.

Court added that a reading of the said judgment, subject to correction, prima facie, reflects that husband was not a party to the suit and it was held that the claim for alternative accommodation can only be made against the husband and not against the in-laws or other relatives.

Therefore, in view of the definition of the shared house, as provided under Section 2 (s) of the Act, 2005 daughter-in-law can be evicted without seeking a decree of eviction against the son with whom she had admittedly moved in the suit property after the marriage of the son of the plaintiff.

In view of the above observations, petition was dismissed. [Sujata Gandhi v. S.B. Gandhi, 2020 SCC OnLine All 763, decided on 12-06-2020]

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]