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Fattechand Murlidhar Shop, Sitabuldi, Nagpur Vs. Shrikrishna Tejmalji Chandak - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 1093 of 1983
Judge
Reported inAIR1984Bom428; 1984MhLJ796
ActsMaharashtra Slum Improvement Board Act, 1973 - Sections 26(1) and 98; Code of Civil Procedure (CPC), 1908 - Sections 9 and 47; Maharashtra Slum Areas (Improvement Clearance and Re-development) Act, 1971 - Sections 22; Maharashtra Slum Improvement Board Act, 1973 - Sections 26 and 26(2)
AppellantFattechand Murlidhar Shop, Sitabuldi, Nagpur
RespondentShrikrishna Tejmalji Chandak
Advocates:A.M. Tayade Asst. Govt. Pleader for;Advocate General of India
Excerpt:
.....question whether certain property came within certain property came within the area declared as slum improvement area or a slum area, was not a matter which is left for the determination of the authorities under the maharashtra slum improvement board act, 1973- the civil court was not barred from considering whether the suit property came within the area declared to be slum improvement area.;b) a decree for eviction of tenant was obtained- an objection to executability was filed on the ground that the suit was filed without taking requisite permission, however the objection was not raised during the trial of suit- it was held that the suit was not maintainable. - indian evidence act, 1872 section 24: [v.s. sirpurkar & deepak verma,jj] dying declaration - multiple murders by accused..........opponent objected to the executablies of the decree on the ground that the premises were party of slum improvement area as declared under the maharashtra slum areas (improvement, clearance and redevelopment) act, 1971, (hereinafter referred to as the act no. 28 of 1971). he produced certificate purported authority which showed that by virtue of a govt. notification dt. 5-2-1976, gawalipura tekadi ward no. 1 s. no. 236, 1, 2 & 4 area 23.54 hectares enclosed within the defined boundaries had been declared to be slum improvement area and house no. 655 (old) was within the slum improvement area so notified. the opponent, therefore, contended that as the suit had been instituted without obtaining the permission of the competent authority as required under s. 22 of act. 28 of 1971, the.....
Judgment:
ORDER

1. This revision application is directed against the order dt. Oct. 5, 1983, by which the Small Cause Court held in Darkhast No. 644 of 1983 that the decree obtained by the applicant for ejectment and arrears of rent was a nullity and was, therefore, unexecutable.

2. The applicant, after obtaining permission of the Rent Controller to determine the lease of the tenant, brought Civil Suit No. 504 of 1979 for ejectment and arrears of rent and damages for use and occupation. That suit was compromised and a decree came to be passed in terms of the compromise. The applicant presented an application for execution of the decree on Aug. 2, 1983 and pursuant to it, a warrant for possession as well as warrant for attachment of moveables come to be issued and possession of a part of this issued and possession of a part of this property was delivered on Aug. 20, 1983 but the possession of the remaining property could not be obtained as the execution was stayed by the executing court. The opponent objected to the executablies of the decree on the ground that the premises were party of slum improvement area as declared under the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, (hereinafter referred to as the Act No. 28 of 1971). He produced certificate purported authority which showed that by virtue of a Govt. notification dt. 5-2-1976, Gawalipura Tekadi Ward No. 1 S. No. 236, 1, 2 & 4 area 23.54 hectares enclosed within the defined boundaries had been declared to be slum improvement area and house No. 655 (old) was within the slum improvement area so notified. The opponent, therefore, contended that as the suit had been instituted without obtaining the permission of the competent authority as required under S. 22 of Act. 28 of 1971, the compromise decree was a nullity and could not be executed.

3. The applicant by his reply to this and the certificate issued thereunder and urged that the premises in question did not fall within the boundaries as specified in the notification. It was further contended that in any event the provisions of the Act would not affect the monetary relief which had been granted to him.

4. The Small Cause Court held that in the absence of permission of the competent authority to institute the suit, the decree passed was without jurisdiction and was a nullity and could not be executed.

5. Though an objection has been raised about the vires of the provision of the Act 28 of 1971 and the notification issued thereunder as being violative of the provisions of Art. 14 of the Constitution, this point was not pressed at the hearing and the challenge was limited only to the maintainability of the objection raised to the jurisdiction of the Court to pass the decree at the stage of the execution, that objection not having been raised at the trial. It was contended that the opponent had not shown that the property in dispute was included within the area to which the notification dt. 5.2.1976 applied.

6. It is necessary first to refer to the provisions which have a bearing on the contentions which have been raised here. Section 22(1) of the Act 28 of 1971. Provides as follows:--

'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,--

institute, after the commencement of the Maharashtra Slum Areas (Improvemtn, 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

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; or)......make an application in writing to the Competent Authority in such form and containing such particulars as may be prescribed.'

Sub-sec. 93) provides as follows :--

'On receipt of such application, the Competent authority, after giving an opportunity to the parties of being heard and after making such summary inquiry into the circumstances of the case as it thinks fit, shall, by order in writing, either grant or refuse to grant such prmission.'

7. There are various factors which the competent authority has to consider while granting the permission by they need not be extracted here.

8. Section 4-A (1) of lthe Act 28 of 1971 provides that any declaration made under S. 26 of the Maharashtra Slum Improvement Board Act, 1973 (hereinafter referred to as Act 23 of 1973) declaring any area to be a slum improvement area and in force immediately before the date of commencement of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) (Amendment) Act (hereinafter in this section referred to as 'the said date') shall, on and from the said date, be deemed to be a declaration made under S. 4 of this Act, declaring the same area to be a slum area for the purposes of this Act. Section 26 of Act. 23 of 1973 enables the Board upon its satisfaction about certain factors to cause such area to be defined in a map and then by an order published in the Official Gazette to declare such area to be a slum improvement area.the notification published in Maharashtra Govt. Gazette dt. 5-2-1976 on which reliance is placed by the opponent, came to be issued by the Deputy Chief Executive Officer, Maharashtra Slum Improvement Board Bombay, whereby amongst certain other areas, the following areas came to be declared as the slum improvement area :--

(See table below)

(contd. on col. 2)

9. Act 23 1971, the area which was declared to be the slum improvement area under Act 23 of 1973, would be a slum area for the purposes of Act 28 of 1971.

10. The applicant had made it clear by his reply to the opponent's application raising objections to the excitability of raising objections to the excitability of the decree that the property in respect of which the decree was passed did not fail with in the boundaries as specified and, therefore, it was not governed by the provisions of Mahrashtra Act 28 of 1971. The certificate dt. 29-8-1983 which was purported to be signed by the Chief Engineer, City Municipal Council, Nagpur was in two parts. The first part gave description of the suit property as house No. 665 (old), Ward No. 1 along with other details and the second part gave the slum area details as stated in the Maharashtra Govt. Gazette notification dt. 5-2-1976. No other evidence except this certificate was adduced on behalf of the opponent. The applicant had filed an Affidavit dt. 13-9-1983 asserting that House No. 665 did not come within the boudoirs of the slum area and that his house was not in the area of Gawalipura locality of Tekadi road nor was it situated in Revenue circle Nos. 1, 2 & 4 but was situated in Revenue circle No. 389 of Sitabuldi. He had also filed on record a certified copy of the revenue map of Mouza Sitabuldi and also certified copies of village form Nos. 7, 7-A and 12 of Mounza sitabuldi of various survey Nos. as found in the revenue map and survey Nos. 236/ 1, 2 & 3 of Sitabuldi Nagpur. An additional affidavit filed by him showed that the area shown in the certificate or the Gazettee notification did not admeasure 23.54 Hectares nor was S. Nos. 236, S-1, 2, 4 situated in the said boundaries and that House No. 665 was neither situated in S. Nos. 236-S-1,2,4 nor in Gavalipura locality of Sitabuldi, the lower court observed in para 7 of its judgment, without considering any of the affidavits or the documents which the opponent had filed in support of his upon the certificate issued by the competent authority, whereas the applicant had relied on his own affidavit and was of the view that the certificate would prevail over the affidavit because by issuing the certificate, the competent authority had made a declaration under its own had and seal and had made attestation in writing as to the truth of the facts and, therefore, will carry more weight and would also prevail over the affidavit of the applicant. It also observed that the authority was not in any way interested in any of the parties and had issued the certificate in the course of its statutory duty and it would consequently prevail over the affidavit of the decree holder.

11. Now it must be noted that S. 26 91) of Act 23 of 1973 provides the manner in which the Board may declare a slum improvement area and that has to be done by defining such area in a map and then by an order published in the Official Gazette. The certificate which has been filed here would clearly not be a declaration under S. 2691) of Act 23 of 1973 as held by the lower Court.

12. The submission of the learned advocate for the opponent was that in view of S. 98 of Act 23 of 1973, save as otherwise expressly provided in this Act, no civil Court shall have jurisdiction in respect of any matter which the Board or the Tribunal is empowered by or under this Act to determine; and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred or duty imposed by or under this Act. There is nothing in Act 23 of 1973 which expressly or by necessary implication authorises the Board or Tribunal to determine, in the event of a dispute in a Civil Court, whether a particular property falls within the area declared as slum improvement area. Under S. 42 of Act 28 of 1971, it is provided that save as otherwise expressly provided in this Act, no civil court shall have jurisdiction in respect of any matter which the Administrator, Competent Authority or Tribunal is empowered by or under this Act, to determine; and no injunction shall be granted any court or other authority in respect of any action taken or to be taken in pursuance of any first ascertained whether the matter in respect of which the bar is to operate is a matter which any of the authorities is empowered by or under the Act to determine. The question whether certain property came within the area , is not a matter which is left for the determination of the authorities under the Act and it is difficult to agree with the submission of the learned advocate of the opponent that it was not open to the civil court to consider whether the suit property came within the area declared to be slum improvement area. It is difficult to accept the submission that merely due to the production of a certificate issued by the Chief Engineer, City Municipal Corporation, Nagpur, the court had no option but the hold that the property in dispute fell within the area notified as a slum improvement area. There is no provision in either of the two Acts which requires any of the authorities under those Acts to issue such a certificate. The provisions to which reference was made and which have been referred to above, only speak of a declaration of that area and that declaration is to be made in the manner speak of a declaration of the area and that declaration is to be made in the manner provided by the Act.

13. On behalf of the opponent reliance was placed on the observations in Kaushalya Devi K. L. Nasal : [1969]2SCR1048 . But that was a case of a decree passed by the Court under S. 13 of the Delhi and Ajmer Rent Control Act (38 of 1952) in an ejectment suit in terms of a compromise without satisfying itself that the grounds of eviction existed and it was obvious that under S. 13(1) of that Act, the court was not competent to pass a decree without satisfying itself of the existence of those grounds and the decree was, enforced in execution. The provisions of S. 72 of Act. 28 of 1971 do not oust the jurisdiction of the court to entertain the suit but creates fetters on the institution of a suit or proceeding by obliging the plaintiff to obtain the previous permission in writing of the competent authority. The Act prescribes the conditions under which and the manner in which the permission can be granted by the competent authority. Nonetheless the suit to be instituted even after obtaining the permission would have to be presented in the court which has the territorial and pecuniary jurisdiction to entertain it. Reference was made on behalf of the opponent, in this context to the provisions of S. 15(2) of the Provincial Small Cause Courts Act, 1887. It reads as follows:

'Subject to the exceptions specified in that schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value does not exceed five thousand rupees shall lbe cognizable by a Court of Small Causes.'

14. Shri Deopujari, the learned advocate of the opponent, urged that since the Court of Small Causes could not have entertained the suit in view of the provisions of Act 28 of 1971 there was an inherent lack of jurisdiction in that court to entrain the suit. A careful reading. However, would show that there is no jurisdictional bar created by S. 22 of Act 28 of 1971. The reference in S. 15(2) of the Provincial small Cause Courts Act, 1887, is clearly to the exceptions specified in IInd schedule and to the provisions of any other enactment for the time being in force excepting the suit from the cognizance of the court of small causes. These provisions wouldn't, therefore, be of any assistance to the opponent.

15. In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman : [1971]1SCR66 it was laid down that when a decree is made by a Court which had no inherent jurisdiction to make it, objection to its validity may be raised in an execution proceeding if the objection appears on the face of record. But where the objection as to jurisdiction of the Court to pass the decree does not appear on the face of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no the validity of the decree even on the ground of absence of jurisdiction. Their Lordships further observed that where a decree for ejectment of a lessee is passed by a court of Small Causes without any objection to its jurisdiction and the question of jurisdiction of the Court to entertain the suit depends upon interpretation of the terms of agreement of lease and the user to which the land was put at the date of grant of lease, these questions cannot be permitted to be raised in an execution proceeding so as to displace to jurisdiction of the court which passed it. Following this authority, it was held in additions Paints and Chemicals Ltd. v. Sant Ram Parma Nand : AIR1976Delhi137 that S. 47 is not intended to be used for the purpose of investigating matters relating to the validity of the decree itself when on the face of it there is nothing illegal about the decree and the Court executing the decree is not competent to embark on an enquiry into facts which if established, will tend to show that the court passing the decree had no jurisdiction to do so.

16. On behalf of the opponent, reliance was placed on Sunder Dass v. Ram Prakash : [1977]3SCR60 to the effect that the executing Court can entertain an objection that the decree is a nullity and can refuse to execute the decree and in doing so, the executing court would not incur the reproach that it is going behind the decree, because the decree being null and voiod, there would really be no decree at all, From paras 3 to 5 of the report it is clear that by introduction of a proviso with retrospective effect it waw to be deemed to be part of S. 3 of that Delhi Rent Control Act, 1958. It was held that it must be concluded that the Civil Court had no inherent jurisdiction to entertain the suit and the decree for the eviction which was passed by it was a nullity. Their Lordships observed that if as a result of the said section, the proviso must be read as forming part of S. 3 as Delhi Rent Control Act, 1958, the conclusion is inescapable that the Civil Court had no inherent jurisdiction to entertain the suit and the trial court as well as the Additional District Judge and the High Court were in error in exercising jurisdiction in relation to the suit when the jurisdiction was clearly excluded by S. 50. This therefore clearly shows that the observations came to be made by their Lordships in a case where there was an inherent lack of jurisdiction.

17. Shri Deopujari then relied on the observations of this Court in Mahadeo Subhanji Adekar V. Akaji Undres Umathe : AIR1965Bom129 . There the landlord who had obtained permission of the appellant authority under the C.P. and berar Regulation of letting of Accommodation Act (11 of 1946) to terminate the tenancy under Cl. 13(3) (vii) of the C. P. and Berar Letting of Houses and Rent Control Order, 1949 filed a suit for eviction. The tenant had in the meantime filed a writ petition challenging the finding of the appellate authority and applied for stay of suit pending the decision in the writ petition. The stay application was rejected and the landlord obtained a decree for eviction. The tenant's application for stay of exection of the decree was allowed by the High Court as also the writ petition and the findings of the appellate authority were quashed. The tenant resisted the execution of the decree on the ground that it had, in view of the High court's decision on the writ petition, become nullity. The objection was overruled on the ground that the executing court could not go behind the decree in appeal and this court took the view the permission granted by the appellate authority having been set aside by the High Court, the parties were relegated to the former position namely, that the tenancy had not been determined and consequently the suit for eviction was not only premature but the decree passed therein was without jurisdiction. Some of the observations of the learned Judge may not be valid now in view of the later Division bench ruling in Prabhakar Atmaram Kale v. Bharat Santaji More as it has been held appeal under Cl 21 does not efface the permission, though the ultimate eviction of the tenant in some measure becomes restricted. Cl. 13(1) of the C. P. l& Berar Letting of Houses and rent Control Order, 1949, provides that no landlord shall, except it the previous permission of the Controller give a notice and in view of the observation of their lordships of the Supreme Court in Vasudeo Dhanjibhai Modi's case : [1971]1SCR66 (Supra), the authority of the proposition in : AIR1965Bom129 (Supra) would be considerably shaken. That need not, lhowever, be discussed in detail here because in the present case, it would be necessary at the stage of the execution of investigate into certain facts and the error and lack of jurisdiction cannot be said to be apparent on the face of the record.

18. Shri Deopujari also made a reference to Kiran Singh v. Chamarr Paswan : [1955]1SCR117 to urge that it is a fundamental principle that a decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. their lordships in that case were considering the principle underlying S. 11 of the Suits Valuation Act (1d887) that a decree passed by the Court, which would have had no jurisdiction to hear a suit or appeal but for over-valuation or under-valuation, is not to be treated as, what it would be but for the section, null and void and that an objection to jurisdiction based on over-valuation on under-valuation, should be dealt with under that section and not otherwise. In view of the observations in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman : [1971]1SCR66 , to which I have already made a reference, dealing with the subject of jurisdiction when facts have to be investigated by the executing court for considering the objection to different context help the opponent.

19. Shri Deopujari laid stress on certain observations in Krushna Chandra Sahoo v. Indramani Sahu : AIR1984Ori49 . But that again was a case of inherent lack of jurisdiction because the objection had been raised before the executing court that the civil court had no jurisdiction to try suit for eviction when Ren Control Act was in force. Though the objection had not been raised earlier in the suit or in appeal, plea of absence of jurisdiction could still be raised during the execution profeedings. In the present case, as I have already pointed out, S. 22 of Act 28 of 1971 does not create a jurisdictional bar to the civil court's entertaining the suit but only places restrictions on the persons who propose to institute a suit. If the suit is instituted without the permission of the competent authority, on an objection being raised or the court noticing the non-compliance thereof, the suit will not be entertained. It is true that the permission, as held in Kalawatibai Kokumal Sindhi v. gopala Ganpati Bhanarkar 1984 Mah LJ 261, must be obtained before instituting the suit. No post facto permission can be granted. That would not, however, clothe the court at the stage of execution, with the power of investigate into the facts, when they are not apparent from the face of the record, for deciding whether the suit could have been entertained at all. In view of the observations of the Supreme court such a course would be impermissible. I, ltherefore, find that the learned Judge of the Court of Small Causes was in error in entertaining of the decree in the circumstances of the present case. The executing court was bound to execute the decree as it stood. The executing court also erred in holding the decree not to be executable as a whole. It was conceded by shir Deopujari, the learned advocate for the opponent that there could be no objection to executing the decree so far as the monetary parts were concerned.

20. Shri Deopujari urged that if I were to take the view that the executing court should have ascertained whether the suit property fell within the Slum Improvement Area or the slum area which came to be declared by the notification dt. 5-2-1976, an opportunity should be granted to the opponent to establish this fact. This course cannot be adopted in view of the propositions so clearly laid down by their Lordships of the Supreme Court in : [1971]1SCR66 , Vasudeo Dhanjibhai Modi v. Rajabhai Abdul Rehman.

21. In the the result, the revision application is allowed. The order passed by the lower court is set aside and it is directed to proceed to execute the decree as it stands.

22. The opponent will pay the costs of the applicant incurred in this revision applicant.

23. The record and proceedings be sent to the lower court immediately.

24. Revision allowed.


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