eviction

Case BriefsHigh Courts

Bombay High Court: In a matter wherein, the parents sought eviction of their son, Rohit B. Deo, J., expressed that,

“In the conservative Indian society, a son is not expected to brand his aged father a ‘swindler’ or then allege that the aged parents have lost mental balance.”

The petitioners were the son and daughter-in-law of respondents 2 and 3 and assailed the order rendered by the Tribunal constituted under Section 7 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 whereby the petitioners were directed to vacate the self-acquired residential house of the respondents 2 and 3.

Petitioners’ submission was that the Act does not envisage a remedy of eviction, and the Tribunal committed a jurisdiction error in virtually treating the application under Section 5 of the Act as a suit for eviction.

Respondents contended that they had constructed a residential house from self-earning and that petitioner 1 illegally and forcibly took possession of part of the said house and was conducting himself in a manner as would pose a serious threat to the safety and security of respondents 2 and 3.

Further, the respondents submitted that if the petitioners vacate the portion illegally occupied, the said portion can be let out and the rental income would enable the respondents 2 and 3 to better maintain themselves.

Significantly, respondents 2 and 3 accused their son and daughter-in-law of physical assault and further prevented the well-wishers and other sons of respondents 2 ad 3 from entering the residential house.

On finding the real possibility of the safety and security of the aged petitioners being jeopardized, Tribunal directed eviction by the order impugned.

Analysis, Law and Decision

High Court expressed that the safety and security of the respondents 2 and 3 shall be in jeopardy unless the petitioners are evicted.

The Bench stated that the emotional and physical well-being of the aged respondents 2 and 3 could not be ensured unless the petitioners vacate the self-acquired residential house of respondent 2.

Supreme Court considered the scheme of the Act in Dr Ashwini Kumar v. Union of India, 2019 ALL SCR 155, wherein several directions were issued to make the provisions of the Act more effective and to ensure that the constitutional goal which the beneficial legislation seeks to achieve is enthused with more vigor.

High Court held that the eviction order was absolutely necessary in order to ensure the physical and emotional health and safety of the parents. [Namdeo v. Geeta, 2022 SCC OnLine Bom 914, decided on 4-4-2022]

Advocates before the Court:

Mr. Lubesh Meshram, Advocate with Mr. Sourabh Singha, Advocate for Petitioners.

Mr. N. R. Rode, AGP for Respondent 1/State.

Mr. P. S. Wathore, Advocate for Respondents 2 and 3.

Case BriefsDistrict Court

Dwarka Courts, New Delhi: Richa Gusain Solanki, Additional Senior Civil Judge-Cum-JSCC-Cum-Guardian Judge, addressed a matter with regard to the eviction of the daughter-in-law by in-laws.

The present suit was filed for permanent and mandatory injunction.

Plaintiff was the owner of the suit property having purchased it from the previous owner. The defendant was the daughter-in-law of the plaintiff. Plaintiff’s son was residing separately from the defendant.

Further, it was stated that the defendant’s behaviour was rude and harsh towards the plaintiff and her family from the very beginning. Since the defendant did not mend her ways, the plaintiff separated the defendant from her son.

Out of natural love and affection for the son and the daughter-in-law, the plaintiff permitted the defendant to reside at the suit property. On knowing that the defendant wanted to sell the property, she asked the defendant to vacate the property, but the defendant refused to do so and demanded Rs 15 lakhs for the same.

Plaintiff had no source of income, and the husband of the plaintiff received a meagre pension which was insufficient to run the household. If the suit property was vacated by the defendant, the same could be let out for an additional source of income. Therefore, the present suit had been filed.

Analysis, Law and Decision

“A party who seeks grant of an injunction must satisfy the Court that his/her dealing of the matter has been fair, honest and free of any fraud or illegality.”

Court noted that the manner in which suits were filed and withdrawn had shown that the plaintiff availed the benefits of the settlement and then took a U-turn to the disadvantage of the defendant.

Plaintiff’s conduct appeared to be such as to disentitle her to the assistance of the Court and no injunction could be granted under Section 41(i) of the Specific Relief Act.

Preponderance of probabilities 

Defendant did not file any application seeking an interim injunction against the sale of the suit property in this case. No injunction was ever granted and in a span of almost 5.5 years, the defendant has not sold or attempted to sell the suit property. Rather she has undertaken in her written statement that she never intends to do so.

“…rights of the plaintiff as an owner of the suit property have to be balanced with the rights of the defendant who is residing in the suit property in the capacity of a daughter-in-law of the plaintiff.”

Since the suit property was the shared household of the defendant, the status of the defendant was more than that of a gratuitous licensee.

Can the defendant have a legal right of residence in the suit property by virtue of Sections 17 read with 19 of the PWDV Act?

The repeated filing of civil suits to evict the defendant and her minor child from the suit property, despite there being a settlement between the parties and especially after the plaintiff had got the FIR quashed on the basis of the settlement, only goes to show that the plaintiff has caused immense mental harassment to the defendant.

“…suits for eviction must have hung over the head of the defendant like a Damocles’ Sword; the fear of not knowing what will happen to the defendant and her minor child, who had already been deserted by the son of the plaintiff must have caused great anxiety to her.”

The above-stated constituted emotional and economic abuse within the meaning of “domestic violence’ under Section 3of the PWDV Act.

Bench expressed that,

Usually, in cases where the in-laws and the daughter-in-law are residing in the same premises, the in-laws would be entitled to seek eviction of the daughter-in-law from their property after providing an alternative reasonable accommodation to her.

Plaintiff was obligated to provide for adequate residence to the defendant and there was no reason why the defendant should be evicted from the suit property.

Hence, the plaintiff was not entitled to a decree of mandatory injunction in her favour.[Bala Devi v. Anjana, CS SCJ: 112 of 2017, decided on 16-3-2022]

Case BriefsSupreme Court

Supreme Court: Refusing to interfere with the Delhi High Court verdict, the bench of MR Shah and BV Nagarathna, JJ has held that in a dispute between the husband and wife under the Domestic Violence Act, the landlord, who otherwise is entitled to the decree of eviction should not be made to suffer. The dispute between the husband and wife under the Domestic Violence Act shall not preclude and/or affect the right of the landlord to get the possession if otherwise he is entitled to.

The Court made clear that if the wife has any grievance against the husband, may be in respect of the alternative accommodation, the same is required to be adjudicated in the proceedings under the Domestic Violence Act and/or any other remedy which may be available to her against the husband.

The Court was hearing an appeal against the Delhi High Court verdict [2021 SCC OnLine Del 2109] wherein the Trial Court’s order granting the possession of the suit property on favour of the landlord was upheld. The appellant wife, in the present case, had challenged the Trail Court’s order on the ground that her husband should provide her accommodation as per the Domestic Violence Act, 2005.

The Delhi High Court, was, however, of the view the issue of accommodation by husband under the Domestic Violence Act cannot be a subject matter of the dispute between the landlord and the tenant.

The High Court had also taken note of the fact that an application filed by the appellant herself in the proceedings before the Trial Court wherein the impugned order has been passed, has been withdrawn by the appellant because of the fact that in a separate proceeding under the D. V. Act on her application certain orders have been passed though recalled later, which order has been taken in appeal by the appellant.

“It is for the appellant to seek such orders as appropriate in accordance with law. But surely not in these proceedings.”

[Archana Goindi Khandelwal v. Rajesh Balkrishnan Menon, Special Leave to Appeal (C) No(s). 2939/2022, order dated 04.03.2022]

Counsels

For Appellant: Advocates VK Anand and Ravi Kumar Tomar

High Court Round UpLegal RoundUp

82 reports on High Court Judgments to read from February 2022.

Allahabad High Court

 Bail

 22-year-old woman, burnt and buried due to demand of dowry: All HC denies bail to accused husband

Noting the brutality with wife a 22-year-old lady and mother of a one year’s infant child in causing her death, beating her cruelly by “her husband” Vikas Kunvar Srivastav, J. held that the said act was not only grave in nature but heinous also.

Read report, here…

Law on S. 311 CrPC

Power to the Court to summon a material witness or to examine a person present in Court or to recall a witness already examined: All HC discusses

Sanjay Kumar Pachori, J., while addressing a matter with regard to recalling of the witnesses expressed that, Section 311 of the Code confers a wide discretion on the Court to act as the exigencies of justice require.

Read report, here…

Law on Recovery of Maintenance

Limitation of 1 year for recovery of maintenance under S. 125(3) of CrPC and the law on enforcement to claim order of maintenance under S. 128 CrPC: All HC explains

Dr Yogendra Kumar Srivastava, J., while addressing a matter regarding recovery of maintenance amount, expressed that,

“Sentencing to jail can only be seen as a means of recovering the amount of arrears and not a mode of discharging liability.”

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Andhra Pradesh High Court

If the de facto complainant feels insulted as he was beaten in front of public and if he takes a hasty decision to commit suicide; will the accused be held responsible in the eyes of law?

Cheekati Manavendranath Roy J. partly allowed the petition by quashing FIR for the offence punishable under Sections 306 r/w 116 IPC.

Read report, here…

Bail

AP HC considered alleged attempt to threatening witness as a vague allegation; Cancellation of bail sought was rejected

“…nothing was brought to the notice of the police or the investigating agency stating that the accused are interfering with course of investigation by way of threatening the witnesses through their men.”

Read report, here…

Bombay High Court

 Law on Voluntarily Causing Grievous Hurt

In a land dispute, a person subjected to grievous injury with the use of ‘Khurpi’: Will he be punished under S. 326 or 325 Penal Code, 1860? Bom HC explains

The Division Bench of S.S. Shinde and N.R. Borkar, JJ., upheld the decision of the Trial Court in a case of causing grievous injury voluntarily.

Read report, here…

Bail

Constant quarrels between husband and wife: Bom HC observes while granting bail to husband accused of dowry and cruelty

Sarang V. Kotwal, J., on noting that the husband and wife cannot live together and there were constant quarrels between them, granted bail to the husband who was accused under the provisions of Dowry Prohibition Act and Penal Code, 1860. 

Read report, here…

Provocation by Wife

Wife subjected husband to humiliation by publicly calling him impotent and abusing him resulting in assault by husband: Husband will be convicted for murder or culpable homicide? Bom HC analyses

The Division Bench of Sadhana S. Jadhav and Prithviraj K. Chavan, JJ., modified the conviction of a husband who in provocation by wife on being subjected to abuses assaulted wife.

Read report, here…

Abetment to Suicide

Employer setting big targets, not granting leave and not accepting resignation would be acts in normal course of business: Bom HC grants anticipatory bail to employer accused of abetting suicide committed by employee

 Sarang V. Kotwal, J., addressed a matter wherein an employer was accused of abetting the suicide of an employee.

Read report, here…

Law on Custody

9-year-old child prefers to stay with mother’s father and his family members and shows animosity towards father: Whether father will get custody of child or not? Bom HC decides 

Addressing a matter wherein a child’s mother was diagnosed with cancer due to which she started living at her parental home with the child, and after the passing of the mother, a custody battle arose between the father of the child and the father and brother of wife, Division Bench of S.S. Shinde and N.J. Jamdar, JJ., noted animosity of the child towards his father, to which the Court expressed that, the same must have occurred due to ‘parental alienation syndrome’.

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Appeal

Appellate court can reverse the finding and sentence of the trial court ordering re-trial

The Division Bench of S.S. Shinde and Milind N. Jadhav, JJ. allowed an appeal against conviction of the Appellant by the Trial Court. The appellant was convicted of the offence punishable under Section 302 of the Penal Code, 1860, (“IPC”) read with Section 34 IPC. He was sentenced to suffer life imprisonment and to pay a fine of Rs. 15,000.

Read report, here… 

Transparency in Functioning

Disqualification of Sarpanch in suspicion of benefitting her close relations by allotting work under Panchayat’s order, without establishment of direct or indirect involvement as per S. 14(1)(g) of Maharashtra Village Panchayats Act: Is it correct? Bom HC analyses

Quoting a phrase from a story of a Roman Ruler Julius Caesar that, “Caesar’s wife should be above suspicion”, Bharati H. Dangre, J., remarked that,

“…those who are vested with the powers are to be made more accountable and transparent in their functioning and subjected to social audit with a view to minimize their discretionary decisions.”

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COVID-19 

Cinema Halls, Theaters, Malls, Restaurants, etc. permitted to carry on business with 50% capacity but banquet halls/Mangal Karyalaya & lawns not permitted with same capacity: Bom HC issues notice

The Division Bench of Sunil B. Shukre and Anil L. Pansare, JJ., addressed a petition wherein a grievance was filed stating that an unreasonable classification resulting in impermissible discrimination had been made by the respondents as Cinema Halls, Theaters, Malls, Restaurants and also other establishments have been permitted to carry on their business or operations with 50% capacity of the customers or attendees, provided customers or attendees are armed with two doses of vaccination, and whereas, Mangal Karyalaya/ Banquet Halls and Lawns where marriage functions are held and solemnised are not being permitted to carry on their business and operations with the same capacity of persons who have taken both the doses of vaccination. 

Read report, here… 

Consumer Protection

Consumer Protection Act requires State Government to constitute a State Consumer Disputes Redressal Commission and create circumstances to its effective functioning: Bom HC at Goa directs State of Goa to ensure filling up of vacant positions expeditiously

Stating that the State Administration comprises several IAS Officers, the least expected out of them is to find the solution to problems, so that State Consumer Disputes Redressal Commission functions effectively, The Division Bench of M.S. Sonak and R.N. Laddha, JJ., directed the State of Goa to ensure that the post of President and 3 other members of the Commission which are vacant be filled expeditiously.

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Dead Person

Notice to a dead person under S. 148 of Income Tax Act cannot be issued: Bom HC

The Division Bench of K.R. Shriram and N.J. Jamdar, JJ., reiterated that notice under Section 148 of the Income Tax Act, 1961 to a dead person cannot be issued.

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Legal Profession

“Notaries operating from public taxis around vicinity of Court”: Dignity of the profession needs to be maintained and the legal profession cannot be allowed to function from the streets | Bom HC

The Division Bench of S.J. Kathawalla and Milind N. Jadhav, JJ., requested the Department of Legal Affairs to give due consideration to this Court’s Order and the Report dated 9-12-2021 submitted by Nausher Kohli, Advocate whilst enacting the Draft Bill.

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Murder or Culpable Homicide?

Husband killed wife brutally in a heat of passion leaving husband with a wounded pride: Bom HC decides whether the said offence will come under “Murder” or “Culpable Homicide not amounting to Murder

Stating that, in the moment of anger spouses almost forgot about the two children who were hardly three years old at the time of incident, the Division Bench of Sadhana S. Jadhav and Prithiviraj K. Chavan, JJ., found that the case of a husband killing wife with a knife was a case of culpable homicide not amounting to murder.

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Arbitration

Bombay HC rejects argument that a dispute cannot be referred for arbitration on account of fraud: Read why

B.P. Colabawalla, J., addressed an arbitration application filed under Section 11 of the Arbitration and Conciliation Act, 1996

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Gangubai Kathiawadi

Can after certification granted by Board, public exhibition of a film be prohibited? Bom HC answers 

In respect to petitions with regard to the release of movie Gangubai Kathiawadi, Division Bench of Dipankar Datta, CJ and M.S Karnik, J., while expressing that “Once the film is granted a certificate by the competent statutory authority, i.e. the Board, the producer or distributor of the film has every right to exhibit the film in a hall unless, of course, the said certificate is modified/nullified by a superior authority/Court”, held that, there cannot be any kind of obstruction for the exhibition of a film, which is certified, unless the said certificate is challenged and Court stays its operation.

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Divorce 

If husband and wife get their marriage registered under Special Marriage Act & under Parsi Marriage and Divorce Act, 1936 as well, would this require them to get nullity of marriage under both Acts or one? Court decides

G.S. Kulkarni, J., expressed that, there is no provision under legislations, that if a marriage between the same couple is annulled under a competent law as enacted by the Parliament, it can as well be of a legal effect in the corresponding enactment.

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Calcutta High Court

Bail

S. 37 of the NDPS Act mandates a more stricter approach than an application for bail sans the NDPS Act: Cal HC

The Division Bench of Bibhas Ranjan De and Debangsu Basak, JJ., while addressing a bail application in a case under NDPS Act, remarked that,

Section 37 of the NDPS Act mandates a more stricter approach than an application for bail sans the NDPS Act.

Read report, here…

Sexual Assault

14-yr old girl subjected to penetrative sexual assault by man who called her grand daughter: Is girl’s complaint vital to form basis of conviction? Cal HC explains

The Division Bench of Joymalya Bagchi and Bivas Pattanayak, JJ., in a penetrative sexual assault case of a 14-year-old girl, expressed that,

“Crime against woman is increasing as a whole. Such type of crime is a direct insult to the human dignity of the society and therefore imposition of any inadequate sentence not only results in injustice to the victim and the society in general but also stimulates criminal activities.”

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Trademark

Disparagement or mere puffery? Court decides in matter of offending/misleading advertisements [Dabur India v. Baidyanath Ayurved]

Saraf, J. decided on a petition which was filed seeking remedy against impugned advertisements disparaging the goodwill and reputation of the petitioner and its product.

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Chhattisgarh High Court

 Jurisdiction

 Limited jurisdiction has been given to the High Court confined to the substantial question of law only

Anoop Kumar Dhand J. dismissed the appeal as it does not fulfill the requirement mandated under Section 30 of Workmen’s Compensation Act, 1923.

Read report, here…

If the party is able to make out an exceptional case and the court finds irretrievable injustice would occur if writ jurisdiction is not invoked, High Courts do have the power to entertain the writ petition

Sam Koshy J. partly allowed the petition and partly disposed of the petition expressing no opinion on the termination notice issued against the petitioner.

Read report, here…

Child Custody

Due to father’s field job, mother granted custody of child: Did Chh HC also grant contact and visitation right to father? Read

In a child custody battle, the Division Bench of Goutam Bhaduri and Rajani Dubey, JJ., reiterated the position of law in the Supreme Court’s decision of Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67, wherein it was held that the court cannot provide one happy home with two parents to the child then let the child have the benefit of two happy homes with one parent each, further this Court granted visitation and contact right to the father.

Read report, here…

Desertion 

If husband brings home concubine due to which wife leaves house, would that lead to desertion by wife? Chh HC explains

The Division Bench of Goutam Bhaduri and Rajani Dubey, JJ., expressed that,

“If the husband keeps another lady; gives shelter to her; and proceeds to have child with the said lady and for that reason if the first wife has to leave the matrimonial home because of physical and mental torture meted out to her it cannot be presumed as a desertion on the part of wife.”

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Delhi High Court

Trademark Dispute

Baazi v. WinZo | Trademark is used by a manufacturer or service provider to distinguish products from those of competitors: Here’s how Winzo appeared dishonest and unfair in adopting Baazi

“When people are satisfied with the products supplied by a manufacturer or service provider, they buy them on the basis of the trade mark and over time it becomes popular and well known. Thus, the use of a similar or identical trademark by a competitor in the same product would lead unwary customers to believe that it originates from the same source.”

Read report, here…

Deadly Weapons

Whether a ‘blade’ would be covered under S. 397 IPC as a deadly weapon? Del HC explains in view of settled position of law

Mukta Gupta, J., explained under what circumstances would Section 397 of penal Code, 1860 would be attracted.

Read report, here…

Law on Bail

Investigation complete, charge sheet filed, accused in jail since 6 months: Read whether Del HC grants bail

Dhari Singh, J., granted bail while referring to a catena of Supreme Court decisions with regard to the law on bail.

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4 years as undertrial, 2 witnesses examined out of 14, no probability of trial to be concluded in near future: Whether Del HC will grant bail to accused under S. 37(b)(ii) of NDPS Act? Read

Chandra Dhari Singh, J., granted bail to an accused on being satisfied with “reasonable grounds” as per Section 37 (b)(ii) of the NDPS Act, 1985.

Read report, here…

Judicial Separation 

Can judicial separation be granted instead of divorce for which party has approached the Court? Read what Del HC says

Expressing that the Family Court’s decision was based on optimism and hope rather than the actual factual matrix of the case, the Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., while addressing a matter wherein matrimonial dispute occurred between the parties, observed that,

“..a decree of judicial separation can be rescinded by the same court; but a decree of divorce can be reversed only by a judicial order: either in review or in appeal. If it is passed ex parte, it may be recalled on an application being made for that purpose.” 

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Money Laundering

Money laundering offence under PMLA is, layered and multi-fold and includes stages preceding and succeeding offence of laundering money: Del HC

While expressing the object of PMLA Act Chandra Dhari Singh, J., expressed that, offence of money laundering is threefold including the stages of placement, whereby the criminals place the proceeds of crime to the general and genuine financial system, layering, whereby such proceeds of crime are spread into various transactions within the financial system and finally, integration, where the criminals avail the benefits of crime as untainted money.

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Uphaar Case

Manner in which judicial records tampered revealed well-planned & methodical attempt to subvert justice system: Suspending sentence of Ansal brothers would amount eroding faith of public? Read Del HC’s decision

Stating that the manner in which Court records tampered was insidious and revealed a well-planned and methodical attempt to subvert the justice system in order to escape conviction in the Main Uphaar Case, Subramonium Prasad, J., held that since the matter relates to tampering of judicial record, the same has to be decided expeditiously in order to ensure faith of the public in the judicial system.

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Law on Review

Can review be sought wherein Court has to delve into materials, apply its mind afresh after re-evaluating materials? Del HC throws light

Expressing that, Minor mistakes of inconsequential importance are insufficient to seek a review, Asha Menon, J., elaborated that, while seeking review of orders passed in a Civil Suit, the grounds mentioned in Order XLVII Rule 1 of the CPC have to be satisfied, which would not equate the hearing with the original hearing of the case or a hearing in an appeal 

Read report, here… 

Eviction

Group of leading artistes asked to vacate Government allotted premises under Discretionary Quota: Right to continue in public premises infinitely? Detailed report

Expressing that a state of indecision could not have given rise to a legitimate expectation, Yashwant Varma, J., held that, while the petitioners undisputedly were illustrious and pre-eminent exponents in their respective fields of the classical arts, the Court was not shown any material which may justify the continued retention of public premises in Delhi or that they would be unable to propagate the classical arts in any other State or city of the nation.

Read report, here… 

Shared Household

Where the residence is a shared household, would it create any embargo upon owner to claim eviction against his daughter-in-law? Read what Del HC says

Yogesh Khanna, J., held that right of residence under Section 19 of the Domestic Violence Act is not an indefeasible right of residence in a shared household, especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law.

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Section 138 NI Act

Vicarious Liability of Directors of Company for offences committed under S. 138 NI Act: Person claiming to not being able to manage business due to his age, could this be accepted as defence? Del HC answers

Subramonium Prasad, J., addressed a matter pertaining to vicarious liability of directors of the company alleged for offences under Section 138 NI Act.

Read report, here…

Passport

Adoptive Father of a minor girl seeks issuance of her passport with details of adoptive parents so that she could write her TOEFL examination: Here’s what Del HC directed

Kameswar Rao, J., addressed a matter wherein a minor child was not able to apply for a passport either in the name of her biological parents or in the name of her adoptive parents, was unable to pursue her academics in the USA.

Read report, here…

Other

Power under Article 227 of Constitution of India cannot be exercised to upset conclusions, howsoever erroneous they may be, unless there was something grossly wrong or unjust: Del HC

Asha Menon, J., while expressing the scope of power under Article 227 of the Constitution of India dismissed the present petition. 

Read report, here…

Gujarat High Court

Will

Opportunity of being heard needs to be granted; Court decided in matter of the Will of Guru Ranchhoddas

A.P. Thaker, J. decided over a petition wherein the case of the petitioner was that the properties in question were originaly private properties of Guru Keshavdas, and after the death of Guru Keshavdas, Guru Karsandas became the Mahant and succeeded the properties under his Will. On the death of Guru Karsandas his chela Guru Atmaram became Mahant and succeeded to the properties of Guru Karsandas under his Will dated 08.12.1941. Thereafter, Guru Atmaram died leaving his Will dated 06-05-1947, appointing Guru Ranchhodas as Chela.

Read report, here…

Himachal Pradesh High Court

Couples have to make their choice at the threshold between career prospects and family life; HP HC observes in a case where a mother seeks job transfer to be with her daughter

“…mandamus is a public remedy and this remedy lies, when a public authority fails to perform the duty entrusted to it by law.”

Read report, here…

Jammu and Kashmir and Ladakh High Court

Inherent Power

Instead of filing an appeal before the Sessions Court petitioner rushed to this Court invoking its inherent power. Can High Court exercise its inherent power? Read J&K and Ladakh HC’s decision

Mohd. Akram Chowdhury, J., reiterated the settled position of law that if an alternate efficacious remedy is available under the statute, the inherent power of this Court cannot be invoked.

Read report, here…

Jharkhand High Court

Lokayukta 

Does Lokayukta have power to pass directions upon disciplinary authority to take action against erring officials? Jharkhand HC elaborates in light of Jharkhand Lokayukta Act, 2001

Sujit Narayan Prasad, J., addresses a very pertinent question of whether the Jharkhand Lokayukta Act, 2001 provides power for issuance of direction upon the disciplinary authority to take action against erring officials or can it’s order be limited to a recommendation.

Read report, here…

Kerala High Court

Cruelty

Is not taking treatment for mental illness to bring out a peaceful family atmosphere a form of cruelty and thus, a ground for divorce? HC answers

In an interesting case the Division Bench of A.Muhamed Mustaque and C.R. Sophy Thomas, JJ., held that not taking treatment for mental illness in order to bring out a peaceful and harmonious family atmosphere can also be counted as cruelty to the persons at the receiving end.

Read report, here…

If Court finds that marriage failed due to incompatibility, but one of the parties withholds consent for mutual separation, would that be ‘Cruelty’? Kerala HC elaborates

Expressing that, “If the conduct and character of one party causes misery and agony to the other spouse, the element of cruelty to the spouse would surface, justifying grant of divorce”, the Division bench of A. Muhamed Mustaque and Sophy Thomas, JJ., held that, Court cannot leave the life of a spouse to the mercy of the opposite spouse.

Read report, here…

Constitutional & Statutory Obligation

Whether State empowered to reject medical reimbursement for treatment being from unrecognized department of recognized hospital? HC decides

Murali Purushothaman, J., held that there is a Constitutional as well a statutory obligation on the part of the State to bear the expenses for treatment of the government servant and his family.

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Reservation

“Marrying a Christian man would not wipe off the benefit of reservation granted to a scheduled caste persons”, HC reiterates caste of a person is to be decided on the basis of birth

Raja Vijayaraghavan V, J., held that marrying a Christian man would not wipe off the benefit of a reservation granted to scheduled caste persons.

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Corporal Punishment

Teacher administering moderate and reasonable force to enforce discipline in classroom, can be exposed to criminal prosecution? Kerala HC answers 

While explaining that inflicting corporal punishment on a Child by a parent or teacher is forbidden, Dr Kauser Edappagath, J., observed that,

“Hurt of a less serious crime is not forbidden when inflicted in the reasonable chastisement of a child by a parent or by a school teacher.”

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Registration of Marriage

If a foreign embassy doesn’t issue ‘Single Status Certificate’ or NOC of an OCI card holder, can Declarations and Certificates be accepted for registration of marriage in India? Ker HC answers

While addressing a matter wherein an Indian Citizen intended to soleminse and register his marriage with a British Citizen, an OCI card holder, N. Nagaresh, J., held that f a foreign Embassy does not issue a Single Status Certificate or NOC due to the law, rules and regulations prevailing in that country, Declarations or Certificates evidencing the same should be accepted in India for registration of marriage.

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Tobacco at residence

If a person keeps tobacco at residence, would that amount to being an offence? Ker HC answers

While addressing a matter for an offence alleged under Cigarettes and Other Tobacco Products Act, Juvenile Justice Act and Kerala Police Act, Dr Kauser Edappagath, J., expressed that mere keeping tobacco at residence would not amount to being an offence.

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Admin of WhatsApp Group

Can an Admin of a messaging service group be held criminally liable for the offensive content posted by member of a group? Kerala HC addresses

While addressing the question of whether the creator or administrator of a WhatsApp group is criminally liable for offensive content posted by a group member, Dr Kauser Edappagath, J., held that a person can be criminally liable for the acts of another if they are party to the offence.

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Karnataka High Court

 Hijab Case

When Karnataka High Court temporarily restrained students from wearing hijab, religious flags, saffron shawls, etc.: Read Court’s interim order

While expressing that, “Endless agitations and closure of educational institutions indefinitely are not happy things to happen”, the Bench of Ritu Raj Awasthi, CJ and Krishna S Dixit and JM Khazi, JJ., restrained all the students regardless of their religion or faith from wearing saffron shawls (Bhagwa), scarfs, hijab, religious flags or the like within the classroom, until further orders.

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Sentence

Conviction sentence not to affect career and not be treated as a remark for employment; Kar HC confined the sentence to fine only in accordance with Ss. 279 and 337 IPC

Sreenivas Harish Kumar, J., disposed of the petition and modified the judgment of the appellate court.

Read report, here…

GST Exemption 

Whether GST exemption can be claimed for leasing out residential premises as hostel to students and working professionals? Kar HC answers 

The Division Bench of Alok Aradhe and M.I. Arun, JJ., addressed whether GST exemption can be claimed for leasing of residential premises as a hostel to students and working professionals.

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Madras High Court

Negotiable Instruments Act

Whether proceedings under Ss. 138 and 141 of NI Act can be initiated against corporate debtor during moratorium period? Madras HC answers

Sathish Kumar, J., while addressing a matter with regard to the dishonour of cheques under Section 138 of Negotiable Instruments Act, 1881, held that the moratorium provision contained in Section 14 of the Insolvency and Bankruptcy Code, would apply only to corporate debtor, but the natural persons mentioned in Section 141 of Negotiable Instruments Act continue to be statutorily liable under Chapter XVII of the Negotiable Instrument Act.

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Religious Practice

“One of the basic tenets to be followed by every Hindu is tolerance. Tolerance must be his own community or religion and in particular, to also to every other religious practice”: Madras HC

“Fundamental Rights and Duties are sacrosanct and binding on the Courts which adjudicate issues relating to the religion.”

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Madhya Pradesh High Court

 MBBS Seat

CBI’s self-contained note cannot form basis for rejecting application for increase of MBBS Seat; HC directs NMC to consider the application afresh 

The Division Bench of Sujoy Paul and Arun Kumar Sharma, JJ., quashed the National Medical Commission’s decision rejecting L.N. Medical College & Research Centre’s application for increase of MBBS seats.

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Writ of Mandamus

Provision for redressal of grievance in matter of radiation by mobile tower exists; Permission for installation can’t be revoked

Nandita Dubey, J. heard a petition which was filed seeking issuance of the writ of mandamus to the respondents to take appropriate effective steps against the Reliance Telecom Services not to permit them for installation of the mobile tower in the premises of Jai Hind School, V.V. Giri Ward, Pipariya.

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Departmental Inquiry

Desirable to stay the departmental proceedings till conclusion of the criminal case; Court prohibits Department to continue inquiry

Atul Sreedharan, J. decided on a petition which was filed by the petitioner who was aggrieved by the departmental proceedings against him on the identical charges by the CBI in the criminal case. 

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Land Acquisition

What would be an appropriate factor by which market value of land was to be multiplied to assess the compensation in the case where the land was situated in the rural area? [NH- 148N land acquisition] 

The Division Bench of Vivek Rusia and Rajendra Kumar Verma, JJ. took up a bunch of petitions which had similar facts that the petitioners were owners of agricultural land that came under the acquisition for construction of 12 lanes Delhi-Mumbai Expressway i.e. NH-148N under the provisions of the National Highways Act, 1956 (‘the NH Act of 1956’). 

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Acquittal

Unless the acquittal in criminal trial is honourable/clean, the employer has enough discretion to find a candidate to be unfit for employment

The Division Bench of Sheel Nagu and Sunita Yadav, JJ. while hearing a petition under Article 227 against order the Central Administrative Tribunal, Jabalpur Bench., dismissed the petition.

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Meghalaya High Court

Meghalaya Civil Service and the Meghalaya Police Service

There is no question of apples and orange being put in the same basket: Court calls State’s action foolish and justification of such act real tragedy

Sanjib Banerjee, CJ. while deciding in the matter between groups of persons in the Meghalaya Civil Service and the Meghalaya Police Service, pertaining to seniority between or among them, disposed the writ petition in favour of petitioners.

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Rape Case | Confession

Unequivocal confession leads to dismissal of appeal in a Rape case with minor

The Division bench of Sanjib Banerjee, CJ. and W. Diengdoh, J. dismissed the appeal which was filed on behalf of the convict with counsel engaged by the Legal Services Authority.

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Police Service 

“It is elementary that when the law requires a certain thing to be done in a particular manner, it has to be done in such manner or not at all”; Court upholds the dismissal of police official for passing information to outlaws 

“….the appellant had links with the banned outfit and had passed on information about police movements and operations to the outlawed organisation” 

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Orissa High Court

Ever-growing stock of seized vehicles

PIL filed about the ever-growing stock of seized vehicles and other properties in the various police stations in the State of Odisha; Directions issued

Muralidhar, CJ. issued directions regarding the ever-growing stock of seized vehicles and other properties in the various police stations in the State of Odisha

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Punjab and Haryana High Court

 Drug Menace

“Drug menace has become deep rooted and is taking its toll like a slow poison for the young generation”; HC expresses anguish over callously casual approach of officers

In a case exposing callous attitude of authorities while dealing with drug menace in the State of Punjab, Meenakshi I. Mehta, J., observed that in some paras of the Statu sreports/Reply, the police officers concerned had mentioned the tablets, allegedly recovered as ‘CLAVIDOL-100 SR’ whereas in certain other paras the same had been described as ‘CLOVIDOL-100 SR’. Criticizing the lackadaisical attitude of officers, the Bench remarked…

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State of Punjab which was known as one of the prosperous States is now at the brink of drug-trafficking

Expressing that, State of Punjab which was known as one of the prosperous States is now at the brink of drug-trafficking, Harnaresh Singh Gill, J., held that in order to curb the menace of drug trafficking the accused person are to be dealt with stringently even at the stage of granting her/him bail in NDPS Act cases involving commercial quantity.

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Patna High Court

Mental Health 

Mental health of a person and/or treatment of those who are in need, more so during the time of Covid-19, is the least priority of the State Government

The Division Bench of Sanjay Karol, CJ and S. Kumar, J., directed the Chief Secretary, Government of Bihar to take all steps ensuring the establishment of State Mental Health Authority as per Section 45 of the Mental Health Care Act, 2017.

Read report, here…

Rajasthan High Court

 Compensation | Motor Vehicle

Money cannot substitute a life lost but an effort has to be made for grant of just compensation having uniformity in approach; Court observes in a MV accident case demanding higher compensation 

Birendra Kumar J. allowed the appeal and enhanced the award considering the settled guidelines in the subsequent judgments to reach at “just compensation”.

Read report, here…

Customs Act 

DRI officer is not Competent Authority to issue show cause notice and adjudicate the same as “proper officer”; Show cause notice set aside 

A Division Bench of Akil Kumar, CJ and Sameer Kureshi, J. allowed the writ petition and set aside the proceedings issued by show cause notice and subsequent demands confirmed by OIO. 

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Rajasthan Public Service Commission

It would be open for RPSC to conduct written main examination on the rescheduled date, Single Judge bench order stayed

A Division Bench of Akil Kureshi CJ and Sudesh Bansal J. stayed the impugned judgment and left it open for RPSC to conduct a written main examination on the rescheduled date.

Read report, here…

Compassionate Appointment

“…on the ground of delay itself, the heir of the deceased employee shall not be entitled to appointment on compassionate ground.”; Raj HC observes in a case where delay is of almost 13 years 

A Division Bench of Manindra Mohan Srivastava and Anoop Kumar Dhand, JJ. dismissed the petition on the ground that the writ petition filed by the petitioners is without any substance. 

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Transfer

Accepting requests for inter-district transfer can lead to chain reaction and at times considerable administrative difficulties; Raj HC observes while dealing a case related to inter-district transfer

A Division bench of Akil Kureshi CJ and Madan Gopal Vyas J. dismissed the petition stating that nothing would come in the way of the petitioner in seeking inter-district transfer if the Government rules and regulations recognize any such policy.

Read report, here…

 Tripura High Court

 Qualifying Examination

No grievance for non-selection; Court finds criteria fixed by ONGC clear and categorical

Indrajit Mahanty, CJ. dismissed a petition which was filed by the petitioner who was appointed as Junior Security Supervisor at (A-1 Level) in the category of Scheduled Tribe and had appeared for the computer-based test and physical standard test conducted by the ONGC. It was alleged that in the selection process the petitioner was awarded 72 marks but was not selected whereas the candidate (respondent 3) who got only 66.10 marks was wrongly and illegally selected by the respondent 2.

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Conjugal Rights

Whether maintenance granted to the wife under S. 125 CrPC can be cancelled in view of husband’s obtaining a decree for restitution of conjugal rights and wife’s refusal for the same?

S.G. Chattopadhyay, J., decided on a petition which was filed by the petitioner challenging order passed by the Additional Judge, Family Court which stated that the petitioner was not entitled to any maintenance allowance under section 125 Cr.P.C from her husband in view of her refusal to restore conjugal relationship with her husband pursuant to the judgment and decree passed by the District Judge for restitution of conjugal rights.

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Bail

Tests provided under S.37(1)(ii) of the NDPS Act should qualify in order to seek bail; Court rejects application 

S.G. Chattopadhyay, J., rejected a bail application which was filed for releasing the accused on bail who had been undergoing imprisonment since 16-09-2021 under NDPS Act, 1985. Successive applications of the accused for pre-arrest bail were rejected.

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Die-in-Harness Scheme

Exclusion of married daughters from the die-in-harness scheme of the State Government discriminatory? Court discusses

The Division Bench of Indrajit Mahanty, CJ. and S.G. Chattopadhyay, J. decided over a bunch of petitions which had a similar question pertaining to exclusion of married daughters from the die-in-harness scheme of the State Government. 

Read report, here…

Migratory Birds

More than 1000 ‘Rare’ Birds dead, no carcasses found; Court directs committee inspection 

The Division Bench of S.G. Chattopadhyay and Indrajit Mahanty, JJ., took up a PIL which was filed on the basis of press reports that in the Sukhsagar water body of Udaipur, Khilpara, large number of migratory birds of more than 1000 in numbers were found dead. Notices were issued and following the directions of this Court a report had come to be filed by the State wherein the State had taken note of the fact that many migratory birds come and find sanctuary in water bodies in the State of Tripura and they come all the way from Spain, Portugal, South East France, Italy and North Western Africa and have all been listed as “Rare” birds by the European Union, but it seems that the same has been detailed as localized by the State.

Read report, here…

Uttaranchal High Court

Right to Information

Husband seeking personal information such as salary of wife under Right to Information Act, 2005; Whether acceptable or not?

“….The only exception as to the information given under the Act under Section 8 of the RTI Act, is an exemption from disclosure of information.”

Read report, here…

Termination of Pregnancy

Compelling to continue pregnancy, infringement under Art. 21; Rape victim allowed to terminate Intrauterine Fetus of 28 weeks 5 days

Alok Kumar Verma, J., decided on a petition which was filed by the father of the minor petitioner to issue a writ in the nature of mandamus commanding and directing the respondent to ensure immediate medical termination of petitioner’s pregnancy after taking all precautions as required to be taken medically and legally.

Read report, here… 

Bail

Denial of bail on sole ground of apprehension that he may commit crime again, overturned by the Court

R.C. Khulbe, J. granted bail in a criminal revision petition moved against the order of Juvenile Justice Board (JJB), Dehradun as well as a judgment by Addl. Sessions Judge (POCSO)/FTC, Dehradun against the petitioner.

Read report, here…

8 Legal Stories of the Week: From High Courts to District Courts

7 Legal Stories of the Week: From High Courts to District Courts

11 Legal Stories of the Week: From Hijab ban to a Sexual Harassment complaint from an employee in ScoopWhoop & more

8 Legal Stories of the Week: From the release of movie Gangubai Kathiawadi to WhatsApp Admin’s liability if a member of group shares objectionable content on group and many more such stories

Case BriefsHigh Courts

Delhi High Court: Expressing that a state of indecision could not have given rise to a legitimate expectation, Yashwant Varma, J., held that, while the petitioners undisputedly were illustrious and pre-eminent exponents in their respective fields of the classical arts, the Court was not shown any material which may justify the continued retention of public premises in Delhi or that they would be unable to propagate the classical arts in any other State or city of the nation.

Background

The three petitions assail proceedings initiated by the respondents under Section 3B of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.

Petitions had challenged the show cause notices pursuant to which proceedings under Section 3B of the Act were commenced. The petitioners brought on record the final orders in terms of which, eviction came to be framed against them. On 4th February, 2022 the Court passed interim orders restraining the eviction of the petitioners.

It was stated that the petitioners were artists of repute and masters in their own right in varied fields of the Indian Classical Arts. In recognition of their standing of eminence and the invaluable contribution made by them for the propagation and preservation of classical art forms, they were allotted the premises in question under a discretionary quota by the respondents.

Even after the initial term of allotment expired decades ago, petitioners continued to remain in occupation of the premises.

Further, it was admitted that although no formal orders pertaining to the retention of the said premises were made by the respondents, petitioners were permitted to retain the same. Petitioners had occupied the premises pursuant to the allotments, except for petitioner 6 who was not the original allottee and had continued to occupy the premises which were licensed in favour of his illustrious father late Ustad Sabri Khan.

Challenge

The petitioners had challenged the initiation of action by the respondents by contending that the premises had been licensed to them in terms of the policies as existing and considering the invaluable contribution made by them in the perpetuation of classical Indian art forms.

Central Government Standing Counsel, Mr Digpaul submitted that the Court must necessarily bear in mind the undisputed fact that all the petitioners have remained in the occupation of the premises for more than three decades having been inducted in possession, Further, it added that the continued occupation of the premises for periods ranging from 10 to 30 years and that too under a discretionary quota cannot possibly be countenanced or be viewed as conferring a right on the petitioner to occupy the premises in posterity.

Further, it contended that, the discretionary quota in respect of eminent artists stands restricted to 40 units. According to learned counsel, the continued retention of these units by the petitioners here also impedes the right of other artists and clearly restricts the right of the respondents to consider making fresh allotments in favour of deserving artistes.

Petitioners did not even pay the license fee which was due and they even failed to establish that they would fall within the ambit of the 2008 O.M.

Analysis and Discussion

“…the Court also deems it apposite to observe that its judgment rendered on this batch is neither liable to be viewed nor construed as the Court even momentarily doubting the eminence of the petitioners or refusing to acknowledge the invaluable contribution made by each of them for the preservation of classical art forms. They have undisputedly been indelibly connected with the preservation of our ancient culture and heritage itself. Their achievements have led to them being conferred with some of the highest civilian honours by a grateful nation.”

Legitimate Expectation

It was noted that the petitioner’s counsel with great passion and vehemence commended for accepting the submission that the legitimate expectation of the petitioners had been clearly violated by the respondents who failed to act fairly.

Keeping in mind the stature and eminence of the petitioners, it was incumbent upon the respondents to ensure that they were treated fairly and not unceremoniously asked to vacate the premises at the height of the raging pandemic.

This Court noted that the Supreme Court decisions have over a period of time held that a legitimate expectation in public law is founded on the expectation of public authorities being liable to act fairly and reasonably.

In the present matter, the allotment in a favor of the petitioners was made under a discretionary quota vesting in the respondents. That discretionary quota was itself subject to the directions issued by the Supreme Court in a public interest litigation. If one were to advert to the relevant provisions as they stood enshrined in the 1985 O.M., it becomes important to note that the same did not envisage an allotment continuing eternally. In fact, and to the contrary, Clause 2(g) thereof in unambiguous terms provided that the allotment would be for three years whereafter each allotment would fall for review. When the respondents proceeded to introduce the 2008 O.M., here again, it was clearly provided that the allotment would be for a maximum period of three years subject to a further extension being accorded in deserving cases for another equivalent term. It further stipulated that no further extensions would be considered.

The 2008 policy further postulated that only in those cases where the artists demonstrate the pursuit of his/her work during the entire period of allotment and a failure to obtain alternative accommodation would the period of maximum retention be relaxed based on the recommendation of the Selection Committee.

One of the memorandums issued by the respondents envisaged or were liable to be interpreted as conferring a right to continue in the public premises infinitely.

This Court failed to discern a legitimate expectation of the petitioners which may have been violated by the respondents.

Further, the Bench added that it failed to countenance any right arising in favour of the petitioners by virtue of the inaction on the part of the respondents. An expectation that the respondents would continue to remain passive or unassertive cannot be recognized as legitimate.

“…permissive occupation of the premises may have been of some relevance provided it was conceded to be based upon an affirmative decision taken in favour of the petitioners.”

Bench referred to the Supreme Court decision in Kerala State Beverages (M&M) Corpn. Ltd. v. P. Suresh, (2019) 9 SCC 710, wherein the notion of “substantive legitimate expectation” was explained.

High Court held that no right stood conferred upon the petitioners to occupy public premises indefinitely, the continued occupation of the premises was during the period when the respondents were engaged in undertaking comprehensive review and revision of the policy itself.

Validity of the Policy

Whether the change of policy can be said to be tainted by manifest arbitrariness?

In Court’s opinion, the decision taken by the Court was fair and objective.

As was noted by the Court in the preliminary parts of this decision, undisputedly, all the petitioners fell foul of the age criteria.

Further, it was added that, while the petitioners may be artists of eminence, in order to be recognized as being eligible to be granted the benefit under the discretionary quota, it was incumbent upon them to establish that their stay in Delhi was essential for the propagation of the classical arts and their individual disciplines. Petitioners abjectly failed to establish the said.

While the petitioners undisputedly are illustrious and pre-eminent exponents in their respective fields of the classical arts, the Court has not been shown any material which may justify the continued retention of public premises in Delhi or that they would be unable to propagate the classical arts in any other State or city of the nation.

The petitioners were served with individual notices terminating their existing allotments and it was only thereafter, that proceedings, as envisaged under Section 3B of the Act, were commenced.

It was also noted by the Court that, the petitioners remained in arrears of license fee commencing from 1987 and the amounts were in lakhs.

With regard to allotment which was never made to petitioner 6, the Court noted that he continued to occupy the public premises based on an allotment which was originally made in favour of his late and illustrious father. Hence, he had no right to occupy premises which were originally allotted to his father except for the period provided to heirs of deceased artistes.

Operative Directions

Lastly, the Court concluded stating that in order to enable all the petitioners to make alternative arrangements and be able to exit the premises with dignity, an extension of a two month grace period to hand over the vacant possession was given. [Bharati Shivaji v. Union of India, 2022 SCC OnLine Del 622, decided on 25-2-2022]

Advocates before the Court:

For the Petitioners: Mr. Prashanto Chandra Sen, Sr. Adv. with Mr. Aman Raj Gandhi, Mr. Parthasarathy Bose and Ms. Ridhima Sharma, Advs.

For the Respondents: Mr. Ajay Digpaul, CGSC with Mr. Kamal R. Digpaul, Advs. for UOI.

Case BriefsSupreme Court

Supreme Court: The bench of Ajay Rastogi* and Abhay S. Oka, JJ has held that jurisdiction of the Civil Court is impliedly barred under the Haryana (Control of Rent & Eviction) Act, 1973 and a tenant can only be evicted under the provisions of the said Act.

Factual Background

The Court was deciding the dispute relating to suit property situated within the municipal limits of Kaithal which is governed by the Haryana (Control of Rent & Eviction) Act, 1973.

The said property was leased to Burmah Shell Oil Storage Distributing Company Ltd. for a fixed period of 20 years at the rate of Rs.35/¬ per month vide lease dated 4th June, 1958 with effect from 1st April, 1958. The lease period initially was for 20 years and the lease further contemplated renewal of the lease once for another 20 years. The lease period commenced from 1st  April, 1958 for a period of 20 years expired on 1st April, 1978 and after that renewal option for another period of 20 years was availed and that lease period also expired on 1st April, 1998. Before expiry of the period of lease of 20 years, the Central Government enacted Burmah Shell (Acquisition of Undertakings) Act, 1976, pursuant to which the leasehold rights were taken over by the Bharat Petroleum Corporation Ltd. (the respondents).

The appellants then served a legal notice on the respondents dated 30th January, 1998 in which although Section 106 of the Transfer of Property Act, 1882 was not specifically mentioned, but in pith and substance the notice was served for terminating tenancy of the respondents and later a civil suit was filed for possession of the subject land on 7th August, 1998.

The respondents argued that on expiry of the lease period, the respondents became the statutory tenant of the suit property and the appellants had been receiving rent from the respondents without any demur and further averred that the Civil Court has no jurisdiction to entertain and try the suit as the same is specifically barred by the provisions of the Act 1973.

Analysis

The Court noticed that by virtue of the statutory enactment of Act 1976, the preexisting tenancy rights held by Burmah Shell with the appellants stood transferred and vested with the Central Government and thereafter by operation of Section 7, the said rights in turn stood transposed and vested in the Government Company (Bharat Petroleum Corporation Ltd.) as the Government Company statutorily became the tenant of the appellants/plaintiffs.

In V. Dhanapal Chettiar v. Yesodai Amma, (1979) 4 SCC 214 had an occasion to examine the controversy as to whether in order to get a decree/order of eviction against the tenant in the State Rent Control Act, it is necessary to give a notice under Section 106 of the Transfer of Property Act, 1882. It was held in that judgment that  even if the lease period is determined by forfeiture under the Transfer of Property Act, 1882, still the tenant continues to be a tenant that is to say that there is no forfeiture in the eyes of law and the tenant becomes liable to be evicted and the forfeiture comes into play only if he has incurred a liability to be evicted under the State Rent Act and not otherwise and further held that even after the expiry of the period of contractual tenancy, the tenant can be evicted only in terms of provisions of the State Rent Act which is applicable in reference the subject property in question.

Further, perusing the scheme of the Act 1976, the Court noticed that from the appointed day, right, title and interest of Burmah Shell with effect to Section 5(1) stood transferred and vested with the Central Government and by virtue of Section 7(2), the vesting of tenancy rights with the Central Government stood further transposed and vested in Bharat Petroleum Corporation Ltd. and that became a statutory tenant by virtue of Section 7(3) of the Act. To that extent, Section 11 of the Act has an overriding effect to the provisions of other laws.

That being so, the jurisdiction indeed of a civil Court is impliedly barred from the field covered specifically by the provisions of the Act 1973 and that being the complete code determining the rights of a tenant/landlord to the exclusion of the other laws.

The Court, hence, found no error in the view expressed by the High Court in the impugned judgment holding that the jurisdiction of the Civil Court is held to be barred and remedial mechanism for ejectment could be possible only under the provisions of the Act 1973.

[Subhash Chander v. Bharat Petroleum Corporation Ltd, 2022 SCC OnLine SC 98, decided on 28.01.2022]

*Judgment by: Justice Ajay Rastogi

Counsels

For appellant: Senior Advocate Manoj Swarup

For respondent: Senior Advocate V. Giri

Case BriefsHigh Courts

Bombay High Court: A.S. Gadkari, J., while addressing a matter of the eviction of a tenant focused on the modes of serving a notice under Section 106 of the Transfer of Property Act, 1882.

The instant petition was preferred by a landlord impugning the decision of lower court allowing the said appeal preferred by the respondent-tenant.

Petitioner-plaintiff had filed the RCS No. 881 of 1990 for eviction of the respondent on the ground of default in payment of rent as contemplated under Section 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.

Petitioner was the owner of a plot and he had constructed a chawl known as ‘Munnar Yadav chawl’. The respondent tenant was allotted in the said chawl on a monthly rental basis. The rent of the Suit property was determined at Rs 37 per month.

 As the Respondent was in arrears of rent from 1-08-1982 and did not pay it despite repeated demands, the Petitioner through his Advocate issued notice and tenancy was also terminated.

As far as pasting of a notice on the conspicuous part of the concerned Suit premises, the Petitioner had proved the said fact by leading evidence of himself and examining a witness.

Trial Court’s decision

Trial Court held that, the Petitioner had proved that the Defendant had committed default in payment of arrears of rent from 1-08-1982 and despite receipt of notice dated 30-03-1990, he failed to pay the said arrears to the Petitioner or deposit the same on the date of first hearing before the Trial Court.

Appellate Court’s decision

Appellate Court had recorded a finding that, the Petitioner did not attempt to serve notice upon the Respondent by the modes prescribed under Section 106 of the Transfer of Property Act, 1882 and on that predominant rather sole ground, reversed the findings recorded by the Trial Court.

Analysis, Law and Decision

High Court noted that the evidence on record revealed that the petitioner-plaintiff did not prove the service of suit notice upon the respondent by adopting the first two modes mentioned in Section 106 of the TP Act.

Section 12(2) of the Rent Act of 1947, states that, “No suit for recovery of possession shall be instituted by a landlord against tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in Section 106 of the Transfer of Property Act 1882”.

Section 106 (4) of the TP Act prescribed that, every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.

As far as the third mode of service was concerned i.e. by tender or delivery of the notice to one of the family members or servants at the residence of tenant is concerned, the Petitioner had averred that, though he tried to serve the said notice upon the Respondent personally, he refused to accept it. Respondent in his evidence has denied the said fact and therefore doubt is created in the mind of the Court about service of notice by adopting the third mode by the Petitioner.

As far as service of notice by the Petitioner by adopting fourth mode i.e. by fixing it on a conspicuous part of the Suit property is concerned, the Petitioner apart from leading his own evidence on that behalf, has also examined a panch witness.

High Court opined that the Appellate Court did not even touch the vital aspect of the service of notice upon the respondent by adopting the fourth mode by the petitioner. Appellate Court failed to take into consideration the necessary and relevant evidence available on record, rather had not taken into consideration it at all and therefore had committed an error in reversing the findings and passing of the decree by the Trial Court.

Therefore, the petitioner did serve the notice under Section 12(2) of the Rent Act upon the respondent by adopting the mode prescribed under Section 106 of the TP Act.

Hence, Bench held that interference of this court was required in view of the above background.

The Court directed respondents to hand over the vacant and peaceful possession of the Suit premises in favour of the Petitioner within a period of two months from the date of uploading of the present Judgment on the official website of the Bombay High Court. [Munnar Lavtan Yadav v. Ashok Dalvi, 2021 SCC OnLine Bom 6189, decided on 1-12-2021]

Advocates before the Court:

Mr Mandar Limaye for the Petitioner. None for the Respondents.

Case BriefsHigh Courts

Delhi High Court: Explaining the significance of ‘shared household’ Asha Menon, J., explained that where a residence is clearly a shared household, it would not bar the owner from claiming eviction against her daughter-in-law, if circumstances call for it.

An instant suit was filed for possession, damages and permanent injunction in respect of the property. The plaintiff claimed to be the exclusive and absolute owner of the suit property.

The suit was filed against the daughter-in-law of the plaintiff who is defendant 1 and her mother who is defendant 2. Son of the plaintiff and the husband of the defendant 1 expired in 2020.

Even if it was accepted that defendant 2 had come to reside with her daughter then, to be of comfort to her daughter, clearly, she had no right to continue to stay in the suit premises once the plaintiff had expressed her desire that the defendant 2 should leave.

Whether defendant 1 raised a triable issue with regard to the title of the plaintiff?

In Court’s opinion, defendant’s claim reflected a desperate attempt to question the plaintiff’s exclusive title to the suit property, which attempt has failed.

Reasoning the above-said further, High Court stated that accepting the fact that the plaintiff’s husband had bequeathed the property to the children, it was also a fact that the children relinquished their shares and rights in favour of their mother.

The Relinquishment Deed was of the year 1999 and the son of the plaintiff married three times, and the defendant 1, being the third wife, entered his life in 2014. Between 1999 till 2014, neither the deceased son of the plaintiff nor her daughter questioned the Relinquishment Deed executed in favour of their mother or the execution of the Conveyance Deed in 2000 solely in the name of the plaintiff.

Even after the marriage of the deceased son of the plaintiff to the defendant 1, the son never questioned the validity of the Relinquishment Deed, by instituting any legal proceedings.

Hence, in view of the above, challenge raised by the defendant 1 was completely untenable and the plaintiff was clearly the exclusive owner of the suit property.

In the present matter, Court noted that the defendants admitted the existence of the Relinquishment Deed and Conveyance Deed executed in favour of the plaintiff and expressed that,

Merely raising the bogey of a life interest does not detract from the admissions made, thus acknowledging the exclusive title of the plaintiff to the suit property.

Shared Household

Defendant 1 raised the plea that the suit premises constituted her shared household.

The significant point to be noted was that the plaintiff herself did not dispute the fact that the suit premises formed the shared household, hence no other evidence or proof was required to establish the said fact.

High Court opined that in light of the decision of the Supreme Court in Satish Chander Ahuja v. Sneha Ahuja, (2021) 1 SCC 414 the mere fact that premises take on the nature of shared household would not per se be a complete defence to a suit for possession filed by the owner of the property, being the in-laws of the defendant/aggrieved person, nor is such a suit barred.

The protection under the DV Act assuring the residence of the aggrieved person in the shared household does not vest any proprietary or indefeasible right on the aggrieved person. It is also subject to eviction being initiated in accordance with law.

Right of residence allowed to aggrieved person does not extend to her insisting on the right of residence in a particular premises.

Section 19 of the DV Act provides for an alternate accommodation being given to the aggrieved person of the same level in certain circumstances.

 “…even where a residence is clearly a shared household, it does not bar the owner, the plaintiff herein, from claiming eviction against her daughter-in-law, if the circumstances call for it.”

Whether the plaintiff must be put to the rigours of a trial to determine whether she made out a case for reclaiming possession of the suit premises or whether the facts as set out in the written statement and the plaint would be sufficient to come to a conclusion?

As per the written statement, the relationship between the parties was far from cordial.

Defendant 1’s case was that the plaintiff and her grandson subjected her to abuse along with this she also stated that she was entitled to half share in the property and thus was entitled to half of the rental income as per the Will of the late father-in-law. She even alleged that her stepson being the grandson of the plaintiff was wasting away the assets of her late husband and was operating various bank accounts and mutual fund accounts of her late husband on the basis of being the nominee, without accounting for her share.

Court noted that defendant 1 in order to wrest settlement from the plaintiff, had made efforts to pressurize her while staying in her premises.

Bench opined that, the defendants admitted in their written statement that the plaintiff had one bedroom in her possession whereas the defendants had two bedrooms in their possession with kitchen, drawing and dining being common portions. By inducting her mother and for a short time her sister, defendant 1 seemed to have made an attempt to assert rights in respect of the suit property, clearly causing distress to the plaintiff.

The averments made in the written statement were sufficient to establish a justification for the plaintiff to seek the eviction of the defendants.

High Court held that the plaintiff was entitled to seek possession of the suit premises from the two defendants without the rigours of an unnecessary and prolonged trial at her age.

Suppression of Facts

Plaintiff counsel submitted that the defendants had a place in Pune.

In the written statement the allegation was that the plaintiff and the grandson were trying to force the defendants “to return to Pune”. The Bench stated that interestingly the affidavit of defendant 2 stated her residential address to be the suit premises but it cannot be her permanent residence. Defendant 2 arrives from somewhere upon the death of her son-in-law.

Hence, there had been suppression of facts by the defendants. [Madalsa Sood v. Maunicka Makkar, 2021 SCC OnLine Del 5217, decided on 10-12-2021]

Advocates before the Court:

For the Plaintiff:

Rajat Aneja & Chandrika Gupta, Advocates.

For the Defendants:

D.K. Goswami, Sr. Advocate with Saharsh Jauhar & Kuldeep Singh, Advocates for D-1 & D-2.

Case BriefsSupreme Court

Supreme Court: Stating that readiness and willingness are necessary for the purpose of passing a decree of specific performance, Division Bench of M.R. Shah and A.S. Bopanna, JJ., expressed that,

Straightaway to rely upon the affidavit without amending the plaint and the pleadings is wholly impermissible under the law.

Factual Background

Plaintiff and the defendant entered into a sale agreement wherein the defendant agreed to sell the same for a sale consideration of Rs 16.20 lakhs to the plaintiff. A part sale consideration of Rs 3,60,001 was paid at the time of execution of the agreement to sell.

Amongst the number of conditions stipulated in the agreement to sell, one of the conditions was that the defendant as original owner was required to evict the tenants from the property in question thereafter to execute the sale deed on receipt of the full sale consideration.

In view of the above condition, plaintiff sent a legal notice to defendant asking to evict the tenants from the property in question and to execute the sale deed on receipt of balance sale consideration vide a notice.

Plaintiff approached the Trial Court for specific performance of the contract.

Plaintiff’s case was that he was ready and willing to perform his part of the contract, but the defendant did not evict the tenants and come forward to execute the sale deed.

Trial Court held that the plaintiff was not willing to get the sale deed executed as it is, and, therefore, held the issue of willingness against the plaintiff. Court also added that the defendant failed to prove that tenants had vacated the suit property as claimed, however, the Trial Court held on willingness against the plaintiff by observing that the plaintiff had not shown the willingness to purchase the property with the tenants.

In an appeal filed before the High Court under Section 96 read with Order XLI by the impugned judgment and order, High Court allowed the said appeal and quashed and set aside the decree passed by the Trial Court dismissing the suit and consequently had decreed the suit for specific performance.

On being aggrieved and dissatisfied with the decisions of the lower courts, defendant approached this Court.

Analysis, Law and Decision

Supreme Court noted the non-compliance of the Order XLI Rule 31 CPC passed by the High Court Order.

High Court disposed of the appeal preferred under Order XLI CPC read with Section 96 in a most casual and perfunctory manner. Court neither re-appreciated the entire evidence on record nor had given any specific findings on the issues which were even raised before the Trial Court.

In Court’s opinion, High Court failed to exercise the jurisdiction vested in it as a First Appellate Court. Hence, High Court’s decision was unsustainable.

As per the case of the original plaintiff, the defendant was required to evict the tenants and hand over the physical and vacant possession at the time of execution of the sale deed on payment of full sale consideration.

Procedure adopted by the High Court relying upon the affidavit in a First Appeal by which virtually without submitting any application for amendment of plaint under Order VI Rule 17 CPC, High Court as a First Appellate Court had taken on record the affidavit and as such relied upon the same, but the said procedure is untenable and unknown to law.

It was also observed that, there were no pleadings in the plaint that he was ready and willing to purchase the property and get the sale deed executed of the property with tenants and the specific pleadings were to hand over the peaceful and vacant possession after getting the tenants evicted and to execute the sale deed.

Bench also opined that the plaintiff was never ready and willing to purchase the property and/or get the sale deed executed of the property with tenants.

It was for the first time before the High Court in the affidavit filed before the High Court and subsequently when the learned Trial Court held the issue of willingness against the plaintiff, the plaintiff came out with a case that he is ready and willing to purchase the property with tenants. 

Further, the Court held that once it is found on appreciation of evidence that there was no willingness on the part of the plaintiff, the plaintiff was not entitled to the decree of specific performance.

Therefore, Trial Court’s decision was upheld.

Submission on behalf of the plaintiff that, in the agreement, a duty was cast upon the defendant to evict the tenants and to handover the vacant and peaceful possession, which the defendant failed and, therefore, in such a situation, not to pass a decree for specific performance in favour of the plaintiff would be giving a premium to the defendant despite he having failed to perform his part of the contract.

Defendant not refunding the amount of part sale consideration with 18% interest as ordered by the Trial Court cannot be a ground to confirm impugned judgment and order passed by the High Court.

The Court directed the appellant to refund the amount of Rs 3,60,001 with 18% interest from the date of agreement till the date of realization. [K. Karuppuraj v. M. Ganesan, 2021 SCC OnLine SC 857, decided on 4-10-2021]

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.

Supreme Court of The United States
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, 2021 SCC OnLine US SC 14, 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]

Jammu and Kashmir and Ladakh High Court
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.

Kerala High Court
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

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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]

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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