A.B. Chaudhari, J.
1. Rule. Rule returnable forthwith. Heard finally by consent of parties.
By the present petition, the petitioner-tenant has challenged the judgment and decree passed by the Small Causes Court, Nagpur in Regular Civil Suit No. 190/1998, on 20-9-2000 and confirmed in Regular Civil Appeal No. 47/2001 on 14-5-2002.
Facts
2. Radhabai-original landlady has filed an application for grant of permission to issue quit notice to the petitioner-tenant, which was granted to her. She issued a quit notice to the petitioner/tenant on 2-12-1991 and then filed a suit bearing R.C.S. No. 500/1993 for ejectment. The suit came to be dismissed on 4-5-1995 on the ground that the notice was defective. On 28-6-1995, she issued another quit notice and filed another suit, which came to be numbered as R.C.S. No. 485/1995. That was also dismissed for defective notice. In the meanwhile, Radhabai expired. Her Legal heirs then issued 3rd quit notice on 24-2-1998 and then filed a suit bearing R.C.S. No. 190/1998. The Small Causes Court decreed the suit for eviction and the Appellate Court confirmed the decree and hence, this writ petition.
Arguments
3. Mr. S.G. Hindaria, Learned Counsel for the petitioner made the following submissions.
(i) By virtue of notification Exh. 38 dated 29-11-1979 the suit house was declared as notified slum under Section 108(1) of Maharashtra Housing And Area Development Act, 1976 (hereinafter referred to as the 'Act of 1976' for short) at Sr. No. 35 in the said notification and, therefore, in accordance with the provisions of Section 26(2) of the Provincial Small Cause Courts Act, the suit was not maintainable. In support of his submissions, he placed reliance on judgment dated 2-12-2005 delivered by this Court in Writ Petition No. 20/2006 wherein earlier judgment of this Court dated 24-8-1994 in CRA No. 320/1994 was prima facie found to be not correct.
(ii) The LR's of original landlady were not entitled to issue quit notice on the basis of permission that was granted to the original landlady.
(iii) Earlier two suits having been dismissed due to defective notices, permission that was granted by the Rent Controller stood extinguished and the third suit could not be brought by the LR's of respondent landlady against the petitioner.
4. Per contra, Mr. Lalwani, Learned Counsel for the respondents opposing the writ petition made the following submissions.
(i) The Courts below have concurrently found that there was whatsoever no evidence of the suit premises being treated as 'Authority Premises'. Since the suit premises have not been taken over as 'authority premises', no responsibility has been taken by the Authority to make improvement of the suit premises. Hence, the Authority has no control over the suit property in any manner whatsoever. Placing reliance on the said earlier judgment of this Court dated 24-8-1994, Mr. Lalwani argued that view taken in the said judgment is correct and same is required to be followed by this Court.
(ii) The petitioner-tenant never pleaded a case of waiver so as to claim extinguishments of permission granted by the Rent Controller in favour of the original landlady. Relying on the decision in the case of P. Ratnam v. Vimalchandra reported in 1973 Mh.L.J. 72 he argued that earlier two notices were found to be defective in law and, therefore, invalid notice could never determine the lease of the tenant. The landlord was, therefore, entitled to issue quit notice by issuing a valid notice.
(iii) The LR's of the original landlady take the place of landlady and the permission granted in favour of the landlady having become final, the same cannot be said to have been extinguished on the ground that the landlady expired during the pendency of the litigation. He, therefore, prayed for dismissal of the writ petition. Consideration
Consideration.
5. Having heard Learned Counsel for the rival parties and having gone through the impugned judgment, insofar as the challenge to the maintainability of the suit on the ground of issuance of third quit notice for determining tenancy is concerned, I do not find any substance therein and the findings of fact recorded by the Appellate Court on that aspect is legal, correct and proper that the invalid notice never terminates or determines tenancy and, therefore, the landlord is entitled to issue quit notice and then file a suit claiming decree for eviction on the basis thereof. As regards the filing of the suit by the LR's of the deceased landlady on the basis of the permission that was granted in her favour, I find that the LR's, who succeeded to her estate, are entitled to file such suit particularly because the permission granted became final.
6. Now, coming to the important question that is being raised about the bar of the suit, it would be appropriate to quote Section 26 of the Provincial Small Cause Courts Act, 1887 (hereinafter the 'Act of 1887,' for short), Section 26(1) and (2) reads as below:
26. Suits or proceedings between licensors and licensees or landlords and tenants for recovery of possession of immovable property and licence fees or rent, except those to which other Acts apply, to lie in Court of Small Causes--(1) Notwithstanding anything contained elsewhere in this Act, but subject to the provision of Sub-section (2), the Court of Small Causes shall have jurisdiction to entertain and try all suits and proceedings between in licensor and licensee, or a landlord and tenants, relating to the recovery of possession of any immovable property situated in the area within the local limits of the jurisdiction of the Court of Small Causes, or relating to the recovery of the licence fee or charges or rent there for, irrespective of the value of the subject-matter of such suits or proceedings.
(2) Nothing contained in Sub-section (1) shall apply to suits or proceedings for the recovery of possession of any immovable property or of licence fee or charges or rent thereof, to which the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the Bombay Government Premises (Eviction) Act, 1955, the Bombay Provincial Municipal Corporations Act, 1919 or the Maharashtra Housing and Area Development Act, 1976, or any law for the time being in force, apply.
Now, Section 108(1) and (2) of Maharashtra Housing And Area Development Act, 1976, reads thus.
(1) Where a Board upon report of any of its officers or other information in its possession is satisfied that any area is or may be a source of danger to the health, safety or convenience of the public of the area or of its neighbourhood, by reason of such area having inadequate or no basic amenities, or being insanitary, squalid, overcrowded or otherwise, and where the Board decides to carry out any improvement works in such area, it shall cause such area to be defined in a map, and then it shall by an order published in the Official Gazette, declare such area to be a slum improvement area and its intention to carry out such improvement works as in its opinion are necessary and are specified in such order. A copy of such declaration shall be displayed in conspicuous places in such area, and shall also be served upon the owner, occupies and mortgagee, if any, of the property or any part thereof.
(2) Any person aggrieved by a declaration made under Sub-section (1) may, within thirty days of the date of such declaration in the Official Gazette, appeal to the Tribunal.
Section 2(4) of the Act of 1976 reads thus:
(4) 'Authority premises' means any premises belonging to, or vesting in the Authority, or taken on lease by the Authority, or entrusted to, or placed at the disposal of, the Authority for management and use for the purpose of this Act.
Lastly, Section 71 of the Act of 1976 reads thus:
71. Bar of jurisdiction of Civil Courts.--No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction, of any person from any Authority premises under this Chapter, or the recovery of the arrears of rent, compensation, amount or damages for use of occupation of such premises, or in respect of any order made or to be made or any action taken or to be taken by the Competent Authority or the appellate officer in the exercise of any power conferred by or under this Chapter, or to grant any injunction in respect of such order or action.
7. Upon careful analysis of the above provisions, it appears that under Section 108 of the Act of 1976, the Board is entitled to declare the particular area as slum improvement area and further authorizes it to carry out slum improvement work in that area. Now, the authority under the Act takes the responsibility of particular premises in its control by vesting or by mode of lease or entrusted for management and use of premises. In other words, under Section 108(1) of the Act of 1976, a particular area may be declared by the Board as slum improvement area, but it is not necessary that the entire house properties or other premises under the said notification automatically become the 'Authority Premises' within the meaning of Section 2(4) of the Act of 1976. To put it the other way, the Authority may not take the responsibility of some of the premises and properties for improvement, management and use but leave it to the owners of such properties and premises though notified as aforesaid. In other words, such properties or premises do not vest in the Authority nor they are taken on lease nor are taken for management and use.
8. The Bar under Section 26(2) of the Act of 1887 cannot be read in isolation and for harmonious construction, the same will have to be read with Section 71 of the Act of 1976, which provides for bar of jurisdiction. True it is that Section 26(2) which provides for bar of jurisdiction to entertain the suit to which the Act of 1976 applies but then this bar created by Section 26(2) applies when the provisions of the 1976 Act applies. Section 71 of the Act of 1976 in clear terms provides for qualification for imposing such a bar as to the applicability of the bar only if the premises are the 'Authority Premises'. Since, I have already found that the Board may not take the responsibility of entire premises under the notification issued under Section 108(1) for improvement but the Board may take the responsibility only in respect of some of the premises out of the all premises notified under Section 108(1) of the Act for improvement, etc. and such premises alone fall in the category of 'Authority Premises' for which only the bar of jurisdiction will have to be read. The very object of insertion of Section 108 appears to be that the Board under the Act of 1976 has been empowered to take up the job of improvement in the slums and, therefore, the bar jurisdiction is provided only in respect of the premises under the control or authority or management of the Board for improvement etc. in accordance with the definition of 'Authority Premises'. When the Board has not taken the responsibility of improvement, management and use etc. in respect of the premises other than the 'Authority Premises' though such premises are notified under Section 108(1), I do not think that any purpose would be served by reading bar in respect of such premises. Now, in the instant case, there is a finding recorded by the Courts below that the suit premises are not 'Authority Premises' and I agree with the said concurrent finding of fact. I, therefore, hold that the suit was maintainable and consequently, I do not find any substance in the present writ petition, the same is dismissed.
9. Rule is discharged. No order as to costs.
Later on
Mr. Hindaria, learned Counsel for the petitioner makes a request for suspension of judgment.
Mr. Lalwani, learned Counsel for the respondent opposes the request.
However, the judgment is suspended for four weeks from today.