* Author
[2024] 1 S.C.R. 1105 : 2024 INSC 71
Baitulla Ismail Shaikh and Anr.
v.
Khatija Ismail Panhalkar and Ors.
(Civil Appeal No. 1543 of 2016)
30 January 2024
[Aniruddha Bose* and Bela M. Trivedi, JJ.]
Issue for Consideration
The appellants-landlords purchased the subject-premises in the
year 1992 from its erstwhile owner. Both the tenants were inducted
by the erstwhile owner of the building in question. On 23.01.2002, a
demolition notice was issued by the Municipal Council. Thereafter,
the notices for eviction were subsequently sent to the tenants,
on the various grounds including municipality’s demolition notice
and bonafide requirement of landlord. In the present appeals, the
appellants are assailing a judgment delivered by a Single Judge of
the High Court on 04.08.2015 exercising his revisional jurisdiction
invalidating eviction decrees against two tenants in respect of two
portions of the same building.
Headnotes
Maharashtra Rent Control Act, 1999 – ss. 15 and 16 – The Trial
Court opined that the landlord was the best judge of his own
requirement and on that basis the issue of bona fide need was
decided in favour of the appellants-landlords – The Appellate
Court sustained the judgment and decree on the ground of
bona fide need as also necessity to effect demolition of the
subject-building – The Revisional Court on analysing the
provisions of ss. 15 and 16 of the said statute set aside the
judgment and decree and allowed the revision applications
of the tenants – Propriety:
Held: The High Court correctly held that there was no satisfaction
in the manner contemplated in s.16 (2) of the 1999 Act as far as
bona fide need in terms of s.16(1)(g) was concerned – In the
impugned judgment, the High Court has dealt with in detail the list
of properties which were with the landlords and on that basis gave
its own finding in that regard, there is no perversity in such view
taken by the High Court – Sub-section (6) of s.16 also mandates
satisfaction of the conditions stipulated in sub-clauses (a) to (d)
thereof – Subclause (d) in particular, contemplates the landlord to
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give undertaking in terms of paragraphs (i), (ii), (iv) and (v) of that
subclause, while dealing with landlord’s eviction claim based on
s.16(1)(i) of the said statute – These are all mandatory requirements
and one cannot find any flaw with the judgment of the High Court
to the extent it rejects the claim of the landlord for non-compliance
of the aforesaid provisions – As far as demolition notice by the
Municipal Authority is concerned, section 16(1)(k) of the said Act
permits recovery of possession of tenanted premises on the ground
that the premises are required for immediate purpose of demolition
ordered by any municipal or other competent authority – The Court
trying an eviction proceeding under the aforesaid provision has
very limited role in determining as to whether demolition is really
necessary or not, but it does not automatically follow therefrom
that the Court would mechanically adopt the view of municipal
authority of there being urgent need of demolition – The conditions
under which a landlord can bring an eviction action under clauses
(i) and (k) of s.16(1) are different in their operations – In respect
of an eviction proceeding founded on the former provision, it
contemplates a lesser degree of immediacy or urgency – But the
latter provision requires a greater degree of urgency and it is within
the jurisdiction of the Court to test this factor, as held in the cases
of M.L. Sonvane and Manohar P. Rampal – Both the fact finding
fora failed on this count – The Revisional Court has fitted the facts
with the legal provisions and found that there was mismatch on
the basis of which the judgment and decree were set aside – The
Judgment of the Revisional Court needs no re-appreciation. [Paras
11, 12, 13, 16, 18]
Maharashtra Rent Control Act, 1999 – s.16(1)(h) and (i) –
Principle of “comparative hardship” – Tenancy Jurisprudence:
Held: In the instant case, dealing with claim based on s.16(1)
(h) and (i) of the Maharashtra Rent Control Act, 1999 Act, the
statutory mandate for the Court is to test the question of part
vacating – Neither the Trial Court nor the Appellate Court chose to
analyse this requirement before directing eviction – This provision
becomes relevant as the initial demolition notice identifies a part of
the premises requiring demolition and the Commissioner’s report
is also on that line – Sub-section (2) of s.16 relates to reasonable
and bona fide need in terms of s.16(1)(g) and if the requirement is
in the aforesaid terms, then the Court has to be satisfied having
regard to all the circumstances of the case including the question
whether other reasonable accommodation is available to the
[2024] 1 S.C.R. 1107
Baitulla Ismail Shaikh and Anr. v. Khatija Ismail Panhalkar and Ors.
landlord or the tenant – This provision essentially incorporates
the principle of “comparative hardship”, as such a test has come
to be known in tenancy jurisprudence. [Para 11]
Case Law Cited
Vijay Singh and Others v. Vijayalakshmi Ammal [1996]
7 Suppl. SCR 385: (1996) 6 SCC 475 – followed.
P. ORR & Sons (P) Ltd. v. Associated Publishers
(Madras) Ltd. [1990] 2 Suppl. SCR 615: (1991) 1 SCC
301 – referred to.
M.L. Sonavane v. C.G. Sonar 1981 (1) All India Rent
Control Journal 466; Manohar Prabhumal Rajpal v.
Satara City Municipal Corporation, Satara and Another
(1993) 1 All India Rent Control Journal 81 – held
correct law.
List of Acts
Maharashtra Rent Control Act, 1999.
List of Keywords
Notices of eviction; Reasonable and bonafide requirement;
Demolition notice; Recovery of possession of tenanted premises;
Principle of comparative hardship; Tenancy Jurisprudence.
Case Arising From
CIVIL APPELLATE JURISDICTION : Civil Appeal No.1543 of 2016.
From the Judgment and Order dated 04.08.2015 of the High Court
of Bombay at Aurangabad in CRA No.167 of 2014.
With
Civil Appeal No.1544 of 2016.
Appearances for Parties
Vinay Navare, Sr. Adv., Abhay Anil Anturkar, Dhruv Tank, Aniruddha
Awalgaonkar, Dr. R. R. Deshpande, Pravartak Pathak, Advs. for
the Appellants.
Ms. Aparna Jha, Vishwanath S Talkute, Prashant Padmanabhan,
Makarand D Adkar, Shantanu M Adkar, Ms. Rekha Rani, Ms.
Bharti Tyagi, Advs. for the Respondents.
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Judgment / Order of the Supreme Court
Judgment
Aniruddha Bose, J.
The appellants before us are landlords and they assail a judgment
delivered by a Single Judge of the Bombay High Court on 04.08.2015
exercising his revisional jurisdiction invalidating eviction decrees
against two tenants in respect of two portions of the same building.
The building in question carries House No.86 as per the municipal
records, comprised in C.S. No. 111/b as per city survey records,
located at Dr. Sobane Road in Mahabaleshwar, District-Satara
within the State of Maharashtra. The Civil Appeal No. 1543 of 2016
arises out of Civil Suit No. 136 of 2010 and the tenant/defendant in
that suit is one Khatija Ismail Panhalkar. In this suit, two of his sons
have also been impleaded as defendants. The premises involved
in these proceedings comprise of two blocks within the aforesaid
building. One block comprises of 10’×4’ structure made of ‘ita and
tin shed’. Civil Appeal No. 1544 of 2016 arises out of Civil Suit No.
137 of 2010 and the tenant whose eviction is sought for in this suit
is one Vasant Mahadeo Gujar (since deceased). Before us, his legal
representatives have contested the appeal. The property from which
the appellants want them to be evicted comprises of two rooms
comprising of an area of 10’×12’, which appears to be located in
the middle of the said building. The two rooms, at the material point
of time, were being used for residential purpose. The appellants
purchased the subject-premises in the year 1992 from its erstwhile
owner. Both the tenants were inducted by the erstwhile owner of
the building in question.
2. On 23.01.2002, a demolition notice was issued by the Mahabaleshwar
Giristhan Municipal Council for a part of the subject-building. This
notice constituted one of the grounds on which the appellants wanted
to evict the respondents under the Maharashtra Rent Control Act,
1999 (“the 1999 Act”). This notice was followed by three subsequent
notices by the said Municipal Council on 03.12.2005, 13.07.2009
and 05.07.2010, almost on similar terms. The suit, however, was
founded on, inter-alia, the notice dated 23.01.2002. This notice is
of relevance so far as these appeals are concerned and we quote
below the text thereof:-
[2024] 1 S.C.R. 1109
Baitulla Ismail Shaikh and Anr. v. Khatija Ismail Panhalkar and Ors.
“ANNEXURE P- 1
MAHABALESHWAR GIRISTHAN MUNICIPAL COUNCIL,
MAHABALESHWAR, DIST. SATARA- 412806
Municipal office no. 60220 Chief officer no. 60673
President office no. 60232 Chief officer res. No 60671
---------------------------------------------------------------------------------
-------
V.S. NO. 15/527 Date; 23-1-2002
Notice
You are do hereby informed that on inspection of the
property comprised in C.S. no. 111-b, house no. 86-b
situated within the municipal council, as on today that is
22-1-2002 it is found that the wall from the eastern side
is swollen and there are cracks. It is also found that the
wooden pillars, wood is damaged and ceiling also has
turned out of shape. Due to this the danger to the house
is apprehended. There is risk to the persons residing in
the house as well as the persons coming and going. At
anytime thre is possibility of collapsing the said dangerous
building due to which there is possibility of fatalities and
the financial loss. Hence vide this notice it is to inform you
to demolish the said dangerous portion immediately on
receipt of this notice otherwise if any fatality occurs or the
financial loss occurs due to the said house then municipal
council will not be responsible and the entire responsibility
will lie in your part. And please note the same.
Sd/-
Chief officer
Mahabaleshwar Giristhan
Municipal council
To,
Baitulla lsmail sheikh and C.K. Aris.
Vasant Mahadev Gujar
Khatija lsmail Panhalkar”
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3. Notices for eviction were subsequently sent to the tenants in each
appeal and both these notices are dated 04.02.2002. So far as
the notice to the respondents in Civil Appeal No. 1543 of 2016 is
concerned, the delivery of vacant possession was asked for on five
main grounds. The first one was default in payment of rent. The next
ground was erection of a permanent structure by the tenant without
permission of the landlord. The third point was subletting and it was
also stated in that notice that the landlords had decided to construct
a building thereon for residential purpose as also for operating a
hotel. Under Section 16(1)(i) of the 1999 Act, the erection of a new
building could come within “reasonable and bona fide” requirement of
landlord, subject to satisfaction of certain other stipulated conditions.
The municipality’s demolition notice was also cited as a ground for
eviction. We shall reproduce provisions of Sections 15 and 16 of the
said enactment in subsequent paragraphs of this judgment. In the
eviction notice to the respondent in Civil Appeal No. 1544 of 2016,
the grounds cited were, inter-alia, issue of the demolition notice by
the municipality, default in payment of rent and also necessity of the
tenanted portion for construction of a new building upon demolishing
the structures on the land.
4. As the eviction notices did not yield any result, the two suits were
instituted on the same date, i.e. 07.08.2002. These suits appear
to have had been tried simultaneously and they were decreed by
the Trial Court, which was sustained by the Appellate Court. In the
Civil Revision Petition, the tenants succeeded as the judgment and
decree were set aside.
5. In course of the proceeding before the Trial Court, a Commissioner
was appointed. He was an architect. His opinion, however, was not
accepted by the Trial Court. He had given his opinion that a portion
referred to as “C” in his report was dangerous and was required
to be demolished. This portion, however, was in possession of the
plaintiffs only, but adjacent to the suit property (in Civil Appeal No.
1543 of 2016). Though his report dated 08.12.2008 carries the caption
of suit no. (239 of 2002) 136 of 2010, the report was examined by
the Trial Court in connection with both the suits. His report on the
necessity of urgent demolition of the tenanted portions was not fully
conclusive but his view was that the entire building was about 97
years old and life of the building was over. His opinion has been
referred to and dealt with by the Trial Court in the following terms:-
[2024] 1 S.C.R. 1111
Baitulla Ismail Shaikh and Anr. v. Khatija Ismail Panhalkar and Ors.
“16) In this respect I have perused evidence of D.W.1 Vivek
and his commission report at Exh.122. It is pertinent to note
that in the commission report Exh.122, the commissioner
has given actual position of every room situated in
C.T.S.No.111/B. In his conclusion he has opined that, the
building is approximately 96 to 97 years old and the life
of building is over. Considering all the material he opined
that the portion shown as ‘C’ in the map is dangerous
and is required to be demolished. It is important to note
that, said portion shown as ‘C’ is the room which is in
possession of plaintiffs and adjacent to suit property.
The commissioner has also filed number of photographs
showing the position of property at Exh. 135 to Exh. 148.
Further, if D.W.1 Vivek’s deposition is perused it is clear
that he has supported his commission report. In cross
examination, he admitted that, if the cementing strength
of soi! used for construction is gone then there may be
cracks to the wall ·and to reconstruct the said wall the
previous wall is required to be demolished, further, if the
base of construction is not strong then new construction
can also collapse. He further admitted that, if the portion
shown by red ink in the map i.e. ‘C’ is demolished the
entire roof on the property is also required to be removed
and if said roof is removed it will create danger to the
roof of the property on the western side and ta the roof
on ‘B’ portion. Further, if total evidence of D.W.1 Vivek
is considered it cannot be said that, he had opined
that, suit property is in dilapidated condition though
he had admitted that the life of suit property is over.”
(Emphasis supplied)
6. It would be evident from this part of the judgment of the Trial Court
that there was no specific finding that the portions in respect of which
the respondents have tenancy required immediate demolition. It was
a portion of the premises in possession of the landlords which, in
the opinion of the Commissioner was dangerous. The Trial Court
proceeded on the basis that it could not sit in appeal over the decision
of Municipal Council requiring demolition. On plaintiffs’ plea of default,
the Trial Court rejected that contention holding that the tenants were
1112 [2024] 1 S.C.R.
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ready and willing to pay the rent of the suit property and during the
pendency of the suit, they had deposited the rent. The Trial Court
also rejected the landlord’s contention that the subject-property was
sublet or permanent structure was made without consent of the
landlord. The Trial Court, however, opined that the landlord was the
best judge of his own requirement and on that basis the issue of
bona fide need was decided in favour of the appellants.
7. The Appellate Court sustained the judgment and decree on the
ground of bona fide need as also necessity to effect demolition of
the subject-building. In addition, it overturned the Trial Court’s finding
on there being no default in payment of rent on the ground that the
provisions of Section 15(3) of the 1999 Act could not support the
tenant’s case. On the question of permanent structure having been
made by the respondent in Civil Appeal No. 1543 of 2016 without
permission of the landlord and question of sub-letting, the Trial Court’s
decision was sustained.
8. The Revisional Court on analysing the provisions of Sections 15
and 16 of the said Statute set aside the judgment and decree and
allowed the revision applications of the tenants.
9. The provisions of Sections 15 and 16 of the 1999 Act stipulate:-
“15. No ejectment ordinarily to be made if tenant pays or is
ready and willing to pay standard rent and permitted increases.
(1) A landlord shall not be entitled to the recovery of
possession of any premises so long as the tenant
pays, or is ready and willing to pay, the amount of
the, standard rent and permitted increases, if any,
and observes and performs the other, conditions of
the tenancy, in so far as they are consistent with the
provisions of this Act.
(2) No suit for recovery of possession shall be instituted
by a landlord against the tenant on the ground of nonpayment of the standard rent or permitted increases
due, until the expiration of ninety days next after
notice in writing of the demand of the standard rent
or permitted increases has been served upon the
tenant in the manner provided in section 106 of the
Transfer of Property Act, 1882.
[2024] 1 S.C.R. 1113
Baitulla Ismail Shaikh and Anr. v. Khatija Ismail Panhalkar and Ors.
(3) No decree for eviction shall be passed by the court
in any suit for recovery of possession on the ground
of arrears of standard rent and permitted increases
if, within a period of ninety days from the date of
service of the summons of the suit, the tenant pays
or tenders in court the standard rent and permitted
increases then due together with simple interest on
the amount of arrears at fifteen per cent per annum;
and thereafter continues to pay or tenders in court
regularly such standard rent and permitted increases
till the suit is finally decided and also pays cost of
the suit as directed by the court.
(4) Pending the disposal of any suit, the court may, out
of any amount paid or tendered by the tenant, pay
to the landlord such amount towards the payment of
rent or permitted increases due to him as the court
thinks fit.
16. When landlord may recover possession.
(1) Notwithstanding anything contained in this Act but
subject to the provisions of section 25, a landlord shall
be entitled to recover possession of any premises if the
court is satisfied-
(a) that the tenant has committed any act contrary to the
provisions of clause (o) of section 108 of the Transfer of
Property Act, 1882;
Explanation.- For the purposes of this clause, replacing
of tiles or closing of balcony of the premises shall not be
regarded as an act of a causing damage to the building
or destructive or permanently injurious thereto; or
(b) that the tenant has, without the landlord’s consent given in
writing, erected on the premises any permanent structure;
Explanation.- For the purposes of this clause, the expression
“permanent structure” does not include the carrying out of
any work with the permission, wherever necessary, of the
municipal authority, for providing a wooden partition, standing
cooking platform in kitchen, door, lattice work or opening of a
window necessary for ventilation, a false ceiling, installation
of air-conditioner, an exhaust outlet or a smoke chimney; or
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(c) that the tenant, his agent, servant, persons inducted by
tenant or claiming under the tenant or, any person residing
with the tenant has been guilty of conduct which is a
nuisance or annoyance to the adjoining or neighbouring
occupier, or has been convicted of using the premises or
allowing the premises to be used for immoral or illegal
purposes or that the tenant has in respect of the premises
been convicted of an offence of contravention of any of the
provisions of clause (a) of sub-section (1) of section 394
or of section 394A of the Mumbai Municipal Corporation
Act, or of sub-section (1) or of section 376 or of section
376A of the Bombay Provincial Municipal Corporations Act,
1949, or of section 229 of the City of Nagpur Municipal
Corporation Act, 1948; or of section 280 or of section 281
of the Maharashtra Municipal Councils, Nagar Panchayats
and Industrial Townships Act, 1965; or
(d) that the tenant has given notice to quit and in consequence
of that notice,the landlord has contracted to sell or let the
premises or has taken any other steps as a result of which
he would, in the opinion of the court, be seriously prejudiced
if he could not obtain possession of the premises; or
(e) that the tenant has,-
(i) on or after the 1st day of February 1973, in the areas
to which the Bombay Rents, Hotel and Lodging House
Rates Control Act, 1947 applied; or
(ii) on or after the commencement of this Act, in the
Vidarbha and Marathwada, areas of the State,
unlawfully sub-let or given on licence, the whole or
part of the premises or assigned or transferred in
any other manner his interest therein; or
(f) that the premises were let to the tenant for use as
a residence by reason of his being in the service or
employment of the landlord, and that the tenant has ceased,
whether before or after commencement of this Act, to be
in such service or employment; or
(g) that the premises are reasonably and bona fide required by
the landlord for occupation by himself or by any person for
[2024] 1 S.C.R. 1115
Baitulla Ismail Shaikh and Anr. v. Khatija Ismail Panhalkar and Ors.
whose benefit the premises are held or where the landlord
is a trustee of a public charitable trust that the premises
are required for occupation for the purposes of the trust; or
(h) that the premises are reasonably and bona fide required
by the landlord for carrying out repairs which cannot be
carried out without the premises being vacated; or
(i) that the premises are reasonably and bona fide required
by the landlord for the immediate purpose of demolishing
them and such demolition is to be made for the purpose
of erecting new building on the premises sought to be
demolished; or
(j) that the premises let consist of a tenement or tenements
on the terrace of a building such tenement or tenements
being only in part of the total area of the terrace, and that
the premises or any part thereof are required by the landlord
for the purpose of the demolition thereof and erection or
raising of a floor or floors on such terrace;
Explanation.-For the purposes of this clause, if the premises
let include the terrace or part thereof, or garages, servants
quarters or out-houses (which are not on the terrace), or all
or any one or more of them, this clause shall nevertheless
apply; or
(k) that the premises are required for the immediate purpose
of demolition ordered by any municipal authority or other
competent authority; or
(l) that where the premises are land in the nature of garden
or grounds appurtenant to a building or part of a building,
such land is required by the landlord for the erection of
a new building which a municipal authority has approved
or permitted him to build thereon; or
(m) that the rent charged by the tenant for the premises or any
part thereof which are sublet is in excess of the standard
rent and permitted increases in respect of such premises
or part or that the tenant has received any fine, premium
other like sum of consideration in respect of such premises
or part; or
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(n) that the premises have not been used without reasonable
cause for the purpose for which they were let for a
continuous period of six months immediately preceding
the date of the suit.
(2) No decree for eviction shall be passed on the ground
specified in clause (g) of subsection (1), if the court is
satisfied that, having regard to all the circumstances of
the case including the question whether other reasonable
accommodation is available for the landlord or the tenant,
greater hardship would be caused by passing the decree
than by refusing to pass it.
Where the court is satisfied that no hardship would be
caused either to the tenant or to the landlord by passing
the decree in respect of a part of the premises, the court
shall pass the decree in respect of such part only.
Explanation. - For the purposes of clause (g) of sub-section
(1), the expression “landlord” shall not include a rent-farmer
or rent-collector or estate-manager.
(3) A landlord shall not be entitled to recover possession
of any premises under the provisions of clause (g) of
sub-section (1), if the premises are let to the Central
Government in a cantonment area, and such premises
are being used for residence by members of the armed
forces of the Union. or their families.
(4) The court may pass the decree on the ground specified
in clause (h) or (i) of subsection (1) only in respect of a
part of the premises which in its opinion it is necessary
to vacate for carrying out the work of repair or erection.
(5) Notwithstanding anything contained in any other law
for the time being in force, an assignment of a decree for
eviction obtained on the grounds specified in clauses (g),
(h), (i) and (j) of sub-section (1) shall be unlawful.
(6) No decree for eviction shall be passed on the ground
specified in clause (i) or (j) of sub-section (1), unless the
court is satisfied-
[2024] 1 S.C.R. 1117
Baitulla Ismail Shaikh and Anr. v. Khatija Ismail Panhalkar and Ors.
(a) that the necessary funds for the purpose of the erection
of new building or for erecting or raising of a new floor or
floors on the terrace are available with the landlord,
(b) that the plans and estimates for the new building or new
floor or floors have been properly prepared;
(c) that the new building or new floor or floors to be erected
by the landlord shall, subject to the provisions of any
rules, bye-laws or regulations made by municipal authority
contain residential tenements not less than the number of
existing tenements which are sought to be demolished;
(d) that the landlord has given an undertaking.-
(i) that the plans and estimates for the new building or
new floor or floors to be erected by the landlord include
premises for each tenant with carpet area equivalent
to the area of the premises in his occupation in the
building sought to be demolished subject to a variation
of five per cent in area;
(ii) that the premises specified in sub-clause (i) will be
offered to the concerned tenant or tenants in the
re-erected building or, as the case may be, on the
new floor or floors;
(iii) that where the carpet area of premises in the new
building or on the new floor or floors is more than the
carpet area specified in sub-clause (i) the landlord
shall, without prejudice to the liability of the landlord
under sub-clause (i), obtain the consent ‘in writing’
of the tenant or tenants concerned to accept the
premises with larger area; and on the tenant or
tenants declining to give such consent the landlord
shall be entitled to put the additional floor area to
any permissible use;
(iv) that the work of demolishing the premises shall be
commenced by the landlord not later than one month,
and shall be completed not later than three months,
from the date he recovers possession of the entire
premises; and
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(v) that the work of erection of the new building or new
floor or floors shall be completed by the landlord not
later than fifteen months from the said date:
Provided that, where the court is satisfied that the
work of demolishing the premises could not be
commenced or completed, or the work of erection
of the new building or, as the case may be, the new
floor or floors could not be completed, within time, for
reasons beyond the control of the landlord, the court
may, by order, for reasons to be recorded. extend
the period by such further periods, not exceeding
three months at a time as may, from time to time, be
specified by it, so however that the extended period
shall not exceed twelve months in the aggregate.
(7) Where the possession of premises is recovered on
the ground specified under clause (g), (h), (i) or (j) of subsection (1) and the premises are transferred by the landlord,
or by operation of law before the tenant or tenants are
placed in occupation, then such transfer shall be subject
to the rights and interests of such tenants.
(8) For the purposes of clause (m) of sub-section (1), the
standard rent or permitted increase in respect of the part
sub-let shall be the amounts bearing such proportion to
the standard rent or permitted increases in respect of
the premises as may be reasonable having regard to the
extent of the part sub-let and other relevant considerations.
(9) Notwithstanding anything contained in this Act, where
the premises let to any person include-
(i) the terrace or part thereof; or
(ii) any one or more of the following structures, that is to say,
tower-rooms, sitting-outrooms, ornamental structures,
architectural features, landings, attics on the terrace of a
building, or one or more rooms of whatsoever description on
such terrace (such room or rooms being in the aggregate
of an area not more than one-sixth of the total area of the
terrace); or
(iii) the terrace or part thereof and any such structure,
[2024] 1 S.C.R. 1119
Baitulla Ismail Shaikh and Anr. v. Khatija Ismail Panhalkar and Ors.
and the court is satisfied that the terrace or structure or
terrace including structure, as aforesaid, are required by
the landlord for the purpose of demolition and erection or
raising of a floor or floors on such terrace, the landlord
shall be entitled to recover possession of the terrace
including such tower-rooms, sitting-out-rooms, ornamental
structures, architectural features, landings, attics or rooms,
the court may make such reduction, if any, in the rent as
it may deem just.
(10) A suit for eviction on the grounds specified in clause
(h), (i), (i) or (k) of sub-section (1) may be filed by the
landlord jointly against all the tenants occupying the
premises sought to be demolished.”
10. The eviction proceeding was instituted in the suit giving rise to Civil
Appeal No.1543 of 2016 against the appellants, inter-alia, on the
grounds of having made construction of permanent nature by extending
the area of the shop premises, without the landlords’ consent, causing
permanent damage to the property in question, causing nuisance and
annoyance to the adjoining area and neighbouring occupiers as also
inducting a relative as sub-tenant. It was pleaded by the appellants
that because of rusting of beams holding the tenanted structure, the
roof of the rented property was damaged as a result of which it had
become dangerous for the occupation of human beings. Demolition
notice issued by Mahabaleshwar Giristhan Municipal Council to the
landlords dated 23.01.2002 was relied upon in the plaint in this regard.
So far as the suit forming the basis of Civil Appeal No.1544 of 2016
is concerned, the grounds for eviction were default in the payment of
rent, demolition notice having been issued by the Municipal Council
on 23.01.2002, as also for necessity of having the premises for the
purpose of carrying out construction for residential purpose and
hotel. This requirement, the appellant argued, constituted bona fide
requirement by the landlord. On the finding of the Appellate Court
that there was default in payment of rent, the High Court held:-
“12(c) The Appeal Court has committed an error of law,
apparent on face of record in interpreting Section 15 of
the Rent Act, in the manner it has. The interpretation is
contrary to both, the text as well as the rulings of this
Court on the subject. This is a case where ·rents were
regularly offered and dispatched by way of money orders.
1120 [2024] 1 S.C.R.
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The rents were, however, refused by the landlords. In such
circumstances, there is no obligation upon the tenants to
comply with conditions prescribed in Section 15(3) of the
Rent Act. It is always open to a tenant to establish and
prove that the tenant was always ready and willing to pay
rent and therefore, there was no cause of action to even
initiate proceedings for eviction under Section 15(1) of
the Rent Act. Besides, a careful perusal of the impugned
orders would indicate that concurrently the two Courts
have accepted that there was no default in payment of
rents. There is, in any case, ample evidence on record
to establish that there was no default in payment of rent;”
11. The Revisional Court examining the question of reasonable and
bona fide requirement of the landlords found eviction was sought for
demolishing the suit premises and erecting a new building thereon.
In the opinion of the High Court, it was incumbent on the part of the
fact finding fora to come to a finding on that question and record
satisfaction as required under sub-sections (4), (5), (6) and (7) of
Section 16 of the 1999 Act. We have quoted above Section 16 of
the 1999 Act. The High Court appears to have connected the claim
based on reasonable and bona fide requirement to Sections 16 (1)
(h) and (i) of the said statute. Though these two provisions apply in
different contexts, sub-section (4) thereof requires the Court to carry
out an exercise to determine which part of the rented-out premises
ought to be vacated for carrying out the work of repair or erection.
The first two fora did not address this question, which is a statutory
requirement. A three-Judge Bench of this Court, in the case of P.
ORR & Sons (P) Ltd. -vs- Associated Publishers (Madras) Ltd.
[(1991) 1 SCC 301] dealing with a provision similar to Section 16(1)
(i) contained in the rent legislation for the State of Tamil Nadu, Tamil
Nadu Buildings (Lease and Rent Control) Act, 1960 opined that
the condition of building had to be considered for determining the
legitimacy of the demand for timely demolition by reason of extent
of damage to the structure, apart from considering other factors. It
was also pointed out in this judgment that there was no necessity of
the building being in crumbling condition to invoke the said provision.
This view was echoed in a Constitution Bench judgment of this
Court in the case of Vijay Singh and Others -vs- Vijayalakshmi
Ammal [(1996) 6 SCC 475]. But these authorities do not clash with
[2024] 1 S.C.R. 1121
Baitulla Ismail Shaikh and Anr. v. Khatija Ismail Panhalkar and Ors.
the reasoning of the High Court anchored on Section 16(4) of the
1999 Act. That provision lays down an entirely different test, and
that is to ascertain if part-demolition could save the tenant’s interest.
Dealing with claim based on Section 16(1)(h) and (i) of the 1999
Act, the statutory mandate for the Court is to test the question of
part vacating. Neither the Trial Court nor the Appellate Court chose
to analyse this requirement before directing eviction. This provision
becomes relevant as the initial demolition notice identifies a part of
the premises requiring demolition and the Commissioner’s report is
also on that line. Sub-section (2) of Section 16 relates to reasonable
and bona fide need in terms of Section 16(1)(g) and if the requirement
is in the aforesaid terms, then the Court has to be satisfied having
regard to all the circumstances of the case including the question
whether other reasonable accommodation is available to the landlord
or the tenant. This provision essentially incorporates the principle
of “comparative hardship”, as such a test has come to be known in
tenancy jurisprudence. We have been taken through the judgments
of the Trial Court and the Appellate Court on this point. The Appellate
Court came to the finding that balance on this point tilts in favour of
the landlord. The High Court rejected this finding, holding:-
“54] However, the respondent-landlords, have not at all been
candid with the Court insofar as the pleadings are concerned.
In the course of evidence, it has come on record that the
respondent-landlords have, besides the suit premises several
other premises, which are being used by them for purposes of
commerce as well as residence. Some of the premises, may
have been acquired post the institution of the suit including
in particular, the premises acquired by one of the sons of
Baitullah Shaikh. Nevertheless, there were no disclosures
volunteered in the course of examination-in-chief. Even if, the
premises subsequently acquired are left out of consideration,
there was a duty upon the respondent-landlords to fully and
candidly make disclosure about the premises in their occupation,
both for the purposes of residence as well as commerce and
thereafter to explain, howsoever briefly, the subsistence of the
need in respect of suit premises. The respondent-landlords
have completely failed in this aspect. Such non-disclosure is
a relevant consideration in the context of determining both the
reasonability as well as bona fides.
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55] The tenants have managed to bring on record the material
in the context of occupation and control of several premises
by the respondent-landlords. Looking to the conduct of the
respondentlandlords, there is no certainty as to whether the premises
in respect of which the tenants have obtained and produced
documents, are only premises which are in the occupation
or control of the respondent-landlords or whether there
are some others as well.
However, even on basis of the existing material on record,
there was no question of making any decree under Section
16(1) (g) of the Rent Act.”
We affirm the view taken by the High Court that there was no
satisfaction in the manner contemplated in Section 16 (2) of the
1999 Act as far as bona fide need in terms of Section 16(1)(g) was
concerned. In the impugned judgment, the High Court has dealt with
in detail the list of properties which were with the landlords and on
that basis gave its own finding in that regard. We do not find any
perversity in such view taken by the High Court.
12. Sub-section (6) of Section 16 also mandates satisfaction of the
conditions stipulated in sub-clauses (a) to (d) thereof. Sub-clause (d)
in particular, contemplates the landlord to give undertaking in terms
of paragraphs (i), (ii), (iv) and (v) of that sub-clause, while dealing
with landlord’s eviction claim based on Section 16(1)(i) of the said
statute. These are all mandatory requirements and we cannot find any
flaw with the judgment of the High Court to the extent it rejects the
claim of the landlord for non-compliance of the aforesaid provisions.
13. Section 16(1)(k) of the said Act permits recovery of possession of
tenanted premises on the ground that the premises are required
for immediate purpose of demolition ordered by any municipal or
other competent authority. In the present case, the respective suits
were instituted seeking recovery of possession, inter-alia, under
this provision. We have already referred to the demolition notice
issued by the municipal authority. The High Court opined that it was
necessary to satisfy itself that the suit premises were required for
immediate purpose of demolition. Contention of the appellants is that
the Statute does not require the Court to come to a satisfaction on
this point. In the event a tenant questions immediacy of demolition,
[2024] 1 S.C.R. 1123
Baitulla Ismail Shaikh and Anr. v. Khatija Ismail Panhalkar and Ors.
then the proper course for him would be to question legality of the
said notice. Section 195 of the Maharashtra Municipal Councils,
Nagar Panchayats and Industrial Townships Act, 1965 (“1965 Act”)
to which the High Court has also referred to, stipulates:-
“195. (1) If it shall at any time appear to the Chief Officer
that any building or other structure or anything affixed to
such building or structure is in a ruinous condition or likely
to fall, or in any way dangerous to any person occupying,
resorting to or passing by such building or structure or
any other structure or place in the neighbourhood thereof,
the Chief Officer may, by written notice, require the owner
or occupier of such building or structure to pull down,
secure, remove or repair such building, structure or thing
or do one or more such things and to prevent all causes
of danger therefrom.
(2) The Chief Officer may also, if he thinks fit, require the
said owner or occupier, by the said notice, either forthwith
or before proceeding to put down, secure, remove or repair
the said building, structure or thing, to set up a proper and
sufficient board or fence for the protection of passers by
and other persons.
(3) If it appears to the Chief Officer that the danger from
a building, structure or thing which is ruinous or about to
fall is of hourly imminence he shall, before giving notice
as aforesaid or before the period of notice expires, fence
of, take down, secure or repair the said structure or take
such steps or cause such work to be executed as may
be required to arrest the danger.
(4) Any expenses incurred by the Chief Officer under subsection (3) shall be paid by the owner or occupier of the
structure and shall be recoverable in the same manner as
an amount due on account of a property tax.”
14. The High Court found fault with the demolition notice as it carried no
reference to the said provision (Section 195 of the 1965 Act). This
flaw, by itself would not make the notice unenforceable. Omission
to label a notice with the provision under which it is issued would
not make it nugatory, if substance thereof is clearly conveyed. But
the High Court also found:-
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“76…Further, the notice is not directly in the context of suit
premises occupied by the tenants, but rather pertains to
certain portions of House No.86B. The notice, does not
require demolition of the entire House No.86B, but rather
requires removal of portions thereof, including in particular
eastern wall, rafters and roofing. On basis of such notice,
it is difficult to sustain an eviction order under Section
16(1)(k) of the Rent Act, particularly where no satisfaction
whatsoever has been recorded by the two Courts on
the aspect of ‘immediate purpose of demolition’, which
satisfaction, was required to be recorded, both in terms of
the context of Section 16(1)(k) of the Rent Act as also the
decision of this Court in case of M.L Sonavane (supra).
77] There is yet another significant aspect in the context
of order of eviction under Section 16(1)(k) of the Rent Act.
On 6 August 2002, the tenants lodged the complaint to
the Municipal Authorities that the landlord Baitulla Shaikh
was deliberately indulging in weakening of the walls of
the portion of House N0.86, in his possession, with the
objective of weakening the entire structure. Based upon
such complaint, on 29 August 2002, an inspection was held
by the Municipal Authority. Upon finding some merit in the
complaint of the tenants, the decision was taken to issue
appropriate notice to the landlords Baitulla Shaikh and
C.K. Aris, Hamid. Pursuant to such decision, the Municipal
Authority, by notice dated 29 August 2002, notified the
landlords that during inspection it was revealed that the
landlords are illegally and unauthorisedly weakening the
walls of House No. 86 and that in future, if the wall collapses
and causes loss to the life and property of the tenants,
then, it is the landlords, who will be entirely responsible for
the same. The documents like compliant of the tenants,
inspection report as well as notice dated 29 August 2002
have been proved in the course of evidence and have
been marked as Exhibits 223, 224 and 225. This vital
material has been completely ignored by the two Courts.
Exclusion of relevant and vital material, is also a species
of perversity in the record of any finding of fact. The Court
Commissioner was also appointed and even the Report
[2024] 1 S.C.R. 1125
Baitulla Ismail Shaikh and Anr. v. Khatija Ismail Panhalkar and Ors.
of the Court Commissioner does not make out the case
that the premises were required for immediate purpose of
demolition. The evidence of the Municipal Engineers as
well as the Court Commissioner, at the highest indicates
that certain portions of House No.86 are in need of repairs.
But the evidence does not make out any case that the
suit premises were required for the immediate purpose
of demolition. By virtually ignoring such material, the two
Courts have proceeded to make a decree of eviction
under Section 16(1)(k) of the Rent Act. This is an exercise
in excess of jurisdiction. There is both illegality as well
as material irregularity in the record of findings of fact,
inasmuch as the Courts have failed to ask itself correct
question in the context of ‘immediate purpose’ and further
failed to consider relevant circumstances, rather the two
Courts have allowed themselves to be persuaded by
irrelevant circumstances.”
(quoted verbatim from the paperbook)
15. Scope of Section 195 of the 1965 Act has been examined by the
Bombay High Court in its judgment in the case of M.L. Sonavane
-vs- C.G. Sonar [1981 (1) All India Rent Control Journal 466]. It is
recorded in this judgment:-
“25. The more pertinent question however, is, whether
the satisfaction of a local authority can be a substitute for
the satisfaction of a court. The court must be satisfied as
the section says of two things. It must be satisfied that a
decree for possession has to be passed against a tenant
and secondly, “premises are required for the immediate
purposes of demolition.” Unless the court is satisfied about
the existence of both these things, it would be difficult to
see how a court can pass a decree for eviction against a
tenant. The satisfaction must relate to the requirement of
passing a decree for possession against the tenant, and
the immediate necessity of demolition. The satisfaction of
the court is not a substitute for the satisfaction of the local
authority. Nor is it that the court must itself inquire that
the premises are in such a ruinous condition that they are
required to be demolished. That satisfaction is relegated to
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the local authority. But, even apart from that satisfaction,
an area of satisfaction is still reserved for the court by the
terms of the section, which deals with that satisfaction with
regard to the passing of a decree for possession against
the tenant, such satisfaction has also to be with regard
to the immediate purpose of demolition. It is there and
under those circumstances that the subsequent events
and actions enter into the considerations of the court. If
the court is satisfied on a consideration of the subsequent
events that the premises are not required “for the immediate
purposes of demolition,” then, notwithstanding the order
passed, upon a bona fide exercise of the power by the
local authority, the court may still refuse to pass a decree.
To my mind, that is the decision and principle laid down in
72 Bombay Law Reporter 569 and the judgment of Justice
Patel referred earlier.”
16. After holding that the satisfaction contemplated in the aforesaid
provision is that of the local authority in a suit for eviction, it has
been held that an area of satisfaction is still reserved for the Court.
Court has to examine if there is immediacy of the need for demolition.
Broadly, the same view has been taken by the Bombay High Court
in a later judgment, in the case of Manohar Prabhumal Rajpal
-vs- Satara City Municipal Corporation, Satara and Another
[(1993) 1 All India Rent Control Journal 81]. In this judgment, the
Court dealt with an eviction suit filed under the provisions of Section
13(1)(hhh) of the Bombay Rents, Hotel and Lodging House Rates
Control Act, 1947 (“1947 Act”). The said provision is near identical
to the provisions of Section 16(1)(k) of the Rent Control Act, 1999.
While analysing the said provision of the 1947 Act, the High Court
had held that the Trial Court while examining a plea for decree under
similar statutory provision cannot sit in appeal over the decision
of the local authority once the latter had exercised its power after
taking into relevant factors into consideration. In our opinion, these
two decisions lay down the correct principles of law for construing
the provisions of Section 16(1)(k) of the 1999 Act. We accept the
appellant’s argument that the Court trying an eviction proceeding
under the aforesaid provision has very limited role in determining
as to whether demolition is really necessary or not, but it does not
automatically follow therefrom that the Court would mechanically
[2024] 1 S.C.R. 1127
Baitulla Ismail Shaikh and Anr. v. Khatija Ismail Panhalkar and Ors.
adopt the view of municipal authority of there being urgent need
of demolition. The conditions under which a landlord can bring an
eviction action under clauses (i) and (k) of Section 16(1) are different
in their operations. In respect of an eviction proceeding founded on
the former provision, it contemplates a lesser degree of immediacy or
urgency, as held in the Constitution Bench judgment which we have
referred to above. But the latter provision requires a greater degree
of urgency and it is within the jurisdiction of the Court to test this
factor, as held in the cases of M.L. Sonvane (supra) and Manohar
P. Rampal (supra). Both the fact finding fora failed on this count.
17. On behalf of the appellants, it was brought to our notice that after the
first demolition notice on 23.01.2002, three other notices were issued.
Obviously the two fact finding Courts did not consider these notices
as they did not form part of cause of action and it also does not
appear that the said facts were admitted to be brought on the record
by way of amendment of plaint or otherwise. These notices would
run their own course and we also do not want to take cognizance
of these subsequent notices as it would be up to the authorities
to take such steps as may be permissible in law in respect of the
subsequent notices. The tenants shall also be entitled to question
the legality thereof, if so advised.
18. We are conscious that the Revisional Court was examining a
judgment and decree already tested by the Appellate Forum and on
facts, decree was made. Ordinarily the Revisional Court ought not
to interfere with findings on fact. But in the judgment under appeal,
we find that the Revisional Court has fitted the facts with the legal
provisions and found that there was mismatch on the basis of which
the judgment and decree were set aside. We have been taken through
the judgment of the Revisional Court and do not find any flaw that
needs re-appreciation. We accordingly dismiss both the appeals.
19. Pending application(s), if any, shall stand disposed of.
Headnotes prepared by: Ankit Gyan Result of the case: Appeals dismissed.
