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Taj Mohamed Yakub Vs. Abdul Gani Bhikan - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 2009 of 1986
Judge
Reported inAIR1991Bom236; 1991(93)BLJR29
ActsMaharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 - Sections 2, 3(1), 4, 5, 22(1) and 33; Constitution of India - Article 227
AppellantTaj Mohamed Yakub
RespondentAbdul Gani Bhikan
Appellant Advocate M.D. Angal, Adv.
Respondent Advocate Mrs. Anita A. Agarwal, Adv.
Excerpt:
.....for the protection of occupiers from eviction and distress warrants. before such declaration, the competent authority is required to be satisfied that the area is or may be a source of danger to the health,safely or convenience of the public of that area or of its neighbourhood, by reason of the area having inadequate or no basic amenities, or being insanilary, squalid, overcrowded or otherwise. a declaration can also be given if the competent authority is satisfied that the building in any area, used or intended to be used for human habitation is unfit for such use by reason of dilapidation, overcrowding, faulty arrangement and design of such buildings, narrowness or faulty arrangement of streets, lack of ventilation, light or sanitation facilities or any combination of these factors,..........with consequential reliefs by judgment dated july 26, 1982.during the pendency of the suit, the competent authority constituted under the act declared that survey no. 41/a/1 is a slum area and the declaration was published in the official gazette on december 26, 1977. the petitioner did not challenge the declaration by filing an appeal to the tribunal as provided under sub-section (3) of section 4 of the act. the petitioner, after obtaining decree of eviction against the respondent, instituted regular darkhast no. 143 of 1982 for recovering possession from the respondent. the respondent/judgment-debtor thereupon filed application (exh. 10) claiming that the execution petition cannot proceed as the petitioner had failed to obtain permission as contemplated under section 22(1)(b) of the.....
Judgment:
ORDER

Pendse, J.

1. This petition filed under Article 227 of the Constitution to challenge legality of order dated April 12, 1985 passed on application (Exh. 10) in Darkhast No. 143 of 19S2 by civil Judge, Junior Division, Malegaon, is referred (o Division Bench by Justice Mrs. Manohar as the learned Judge disagreed with the view taken by Mr. Justice Jahagirdar in regard to interpretation of expression 'occupier' under Section 2(e)(v) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (hereinafter referred to as the 'Act').

2. The facts which gave rise to filing of the petition are not in dispute and are required to be briefly stated to appreciate the controversy raised in the petition. The petitioner is owner of an open plot bearing survey No. 41/A/1 admeasuring one acre 28 gunthas and situate within the municipal area of Malegaon Municipal Council. The petitioner claims that the respondent raised unauthorised construction of a tin shed admeasuring 12 feet x 25 feet and is occupying the same for the purpose of residence. The petitioner instituted Regular Civil Suit No. 226 of 1972 in the Court of Civil Judge, junior division, Malegaon, against the respondent for recovery of possession on the strength of title and for damages for wrongful occupation. The suit was resisted by the respondent, but the trial Court passed decree of eviction with consequential reliefs by judgment dated July 26, 1982.

During the pendency of the suit, the competent authority constituted under the Act declared that survey No. 41/A/1 is a slum area and the declaration was published in the official gazette on December 26, 1977. The petitioner did not challenge the declaration by filing an appeal to the Tribunal as provided under sub-section (3) of Section 4 of the Act. The petitioner, after obtaining decree of eviction against the respondent, instituted Regular Darkhast No. 143 of 1982 for recovering possession from the respondent. The respondent/judgment-debtor thereupon filed application (Exh. 10) claiming that the execution petition cannot proceed as the petitioner had failed to obtain permission as contemplated under Section 22(1)(b) of the Act. The contention raised by the respondent/judgment-debtor was upheld by the executing Court by the impugned order dated April 12, 1985 and that has given rise to filing of the present petition.

3. The petition was placed for hearing before justice Mrs. Manohar on October 18, 1989, and it was claimed on behalf of the petitioner that permission as contemplated under Section 22 is not required for recovering possession from a rank trespasser. The petitioner claimed that expression 'occupier' as defined under Section 2(e) does not include a person who is in occupation as a trespasser; In support of the submission, the petitioner placed reliance upon an unreported decision dated February 7, 1985, delivered by Mr. Justice Jahagirdar in Writ Petition No. 1572 of 1984 in the case of Talslimkha Ismailkha Manyar v. Pandit Ramchandra Khairnar Justice Mrs. Manohar by speaking order, expressed her disagreement with the interpretation accepted by Mr. Justice Jahagirdar and thereupon directed that the petition should be placed before the learned Chief Justice for being referred to Division Bench. The learned Chief Justice directed the petition to be placed before us for final disposal.

4. The short question which falls for determination is the exact ambit of the expression 'occupier' as defined under Section 2(e) of the Act and whether a person in occupation as trespasser is covered by the definition. Before examining the question, it is necessary to refer to certain provisions of the Act which came into operation on August 11, 1971. The Maharashtra Legislature passed the Act to make better provision for the improvement and clearance of slum areas in the State and their redevelopment and for the protection of occupiers from eviction and distress warrants. By Section 3(1) of the Act, the State Government is authorised to appoint any person to be the competent authority for the purpose of the Act and Section 4 enables the competent authority on satisfaction to declare any area to be slum area. Before such declaration, the competent authority is required to be satisfied that the area is or may be a source of danger to the health,safely or convenience of the public of that area or of its neighbourhood, by reason of the area having inadequate or no basic amenities, or being insanilary, squalid, overcrowded or otherwise. A declaration can also be given if the competent authority is satisfied that the building in any area, used or intended to be used for human habitation is unfit for such use by reason of dilapidation, overcrowding, faulty arrangement and design of such buildings, narrowness or faulty arrangement of streets, lack of ventilation, light or sanitation facilities or any combination of these factors, detrimental to the health, safety or convenience of the public of that area. Chapter III of the Act deals with the topic of improvement of slums and Section 5 and subsequent sections in the chapter confer duty upon the competent authority to undertake execution of works of improvement of slum area. Section 5B(1) of the Act confers power on the competent authority to require occupiers to vacate the premises for the purpose of carrying out improvement work. Section 7 enables the competent authority to collect amount of expenses incurred for improvement from the occupiers. Chapter VI of the Act deals with the subject of protection of occupiers in slum areas from eviction and distress warrants, and the provisions of Section 22(1)(a) and (b) read as under :--

'22(1) Notwithstanding anything contained in any other law for the time being in force, no person shall, except with the previous permission in writing of the Competent Authority,--

(a) institute, after the commencement of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, any suit or proceeding for obtaining any decree or order for the eviction of any occupier from any building or land in a slum area; or

(b) where any decree or order is obtained in any suit or proceeding instituted before such commencement for the eviction of an occupier from any building or land in such area, execute such decree or order.'

Sub-section (4) of Section 22 provides that ingranting or refusing to grant the permission, the competent authority shall take into account; (a) whether alternative accommodation within the means of the occupier would be available to him, if he were evicted; (b) whether the eviction is in the interest of improvement and clearance of the slum area; and (c) any other factors, if any, as may be prescribed. It is clear from reading of the provisions of Section 22 that the petitioner could not execute decree of eviction passed against the respondent without obtaining prior permission from the competent authority.

5. Mr. Angal, learned counsel appearing on behalf of the petitioner, submitted that the provisions of Section 22 of the Act are not attracted, because the respondent is a rank trespasser as found by the civil Court and prior permission of the competent authority is not required to recover possession from such person. It was urged that a rank trespasser would not fall within the definition of expression 'occupier' under Section 2(e) of the Act. The expression 'occupier' as defined under Section 2(e) of the Act reads as follows :--

'(e) 'occupier' includes,--

(i) any person who for the time being is paying or is liable to pay to the owner the rent or any portion of the rent of the land or building in respect of which such rent is paid or is payable;

(ii) an owner in occupation of, or otherwise using, his land or building;

(iii) a rent-free tenant of any land or building;

(iv) a licensee in occupation of any land or building; and

(v) any person who is liable to pay to the owner damages for the use and occupation of any land or building.'

Reading of the expression establishes that the definition is inclusive and not exhaustive. Section 2(e)(v) refers to any person who is liable to pay to the owner damages for the use and occupation of any land or building as anoccupier and the question which needs decision is whether a trespasser would fall in this category. In Halsbury's Laws of England, Vol. 45 para. 1384, 'trespass to land' is defined as every unlawful entry by one person on land in the possession of another for which an action lies. In Para. 1403 of the same volume, it is pointed out that where the defendant has made use of the plaintiff's land, the plaintiff is entitled to receive by way of damages such a sum as should reasonably be paid for that use. A person who wrongfully uses land or building is, therefore, liable to pay damages for the use and occupation of such land and building. In our judgment, there is no reason whatsoever to exclude the trespasser from the ambit of Section 2(e)(v) of the Act. A trespasser is a person who is liable to pay to the owner damages for the use or occupation of any land or building. The scheme of the Act also supports the interpretation we have put on Section 2(e) and the definition of the expression 'occupier'. Section 5 of the Act confers power upon the competent authority to carry out execution of works for improvement of the slum and section 5B enables the competent authority to require occupiers to vacate premises. In case the contention of Mr. Angal that the trespasser would not fall within the definition of 'occupier' is accepted, then it would lead to very curious results, because the competent authority would not be entitled to require the trespasser to vacate the premises and thereby the competent authority would be unable to carry out execution of works of improvement of the slum area. It would also not be possible for the competent authority to recover from such trespasser expenses incurred by the competent authority for maintenance of works or enjoyment of amenities and conveniences provided for improvement of the slum area. Perusal of various sections of the Act leaves no manner of doubt that the Legislature clearly contemplated that the expression 'occupier' would take in its sweep every person who is in occupation of the area declared as slum area and irrespective of the character of possession of such person. The provisions were enacted for improvement of the slum areas and it is entirely irrelevant as towho is in occupation of such area and in what capacity. A reference was made by the learned counsel for the petitioner to the provisions of Section 33 of the Act which confers power on The competent authority to evict occupants from the building when the owner of the building is unable to evict them in pursuance of any order or direction issued by the competent authority. We are unable to appreciate how this power could lead to the conclusion that a trespasser in occupation is not an occupier in accordance with the definition under Section 2(e)(v) of the Act.

6. Mr. Angal placed strong reliance upon the decision of Mr. Justice Jahagirdar delivered on February 7, 1985 in Writ Petition No. 1572 of 1984. The learned Judge, in para. 8 of the judgment, observed that damages are liable to be paid by the trespasser for the injury caused to the right of the plaintiff to hold property and, therefore, a trespasser cannot be said to be a person who is liable to pay to the owner damages for the use and occupation of the property. With respect, we are unable to share the narrow construction employed by the learned Judge while examining the definition of 'occupier' under Section 2(e)(v) of the Act. Mr. Justice Jahagirdar held that when an owner files suit against trespasser for damages, then the damages are claimed not for use and occupation but only for the act of trespass. The view is not correct because trespasser includes wrongful use and occupation of property and, consequently, damages claimed are both for act of trespasser and wrongful use and occupation of property. A trespasser, therefore, squarely falls within the expression 'occupier' under Section 2(e)(v) of the Act. We are in agreement with the view taken by Justice Mrs. Manohar and we are unable to share the view expressed by Mr. Justice Jahagirdar. Our attention was also invited to decision of another single Judge in Shankar v. Balaji, : (1990)92BOMLR160 . After perusal of the judgment, we are unable to find any reason which led the learned single Judge to come to the conclusion that the person in occupation as a trespasser would not fall within the definition under Section 2(e)(v) of the Act. The learned Judge held that the rule ofejusdem generis is attracted, but with respect, we are unable to accept the conclusion, because the entire scheme of the Act indicates otherwise. The attention of the learned Judge was not invited to the fact that the definition of expression 'occupier' is inclusive and not exhaustive. In our judgment, the decisions of the learned single Judge and of Mr. Justice Jahagirdar are incorrect and the view taken by Justice Mrs. Manohar in referring judgment is the correct one. Accordingly, we overrule the decision of Mr. Justice Jahagirdar and also the decision of the single Judge in Shankar v. Balaji, : (1990)92BOMLR160 . In our judgment, the order passed by the trial Court staying the execution proceedings till the petitioner secures permission from the competent authority does not suffer from any infirmity and the petition must fail.

7. Accordingly, rule is discharged. In the circumstances of the case, there wilt be no order as to costs.

8. Order accordingly.


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