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Dattaram S. Vichare v. Thukaram S. Vichare And Others
Factual and Procedural Background
The appellant was allotted Tenement No. 16/1097 at Abhuyadaya Nagar, Bombay, in 1965 by the Bombay Housing and Area Development Board (“the Board”) constituted under the Maharashtra Housing and Area Development Act (“the Act”). At allotment, he submitted “Form C,” naming his real brother—respondent Tukaram S. Vichare—and the respondent’s wife as family members who would reside in the premises; the Board accepted this declaration.
Inspection reports dated 13-11-1985 and 23-12-1986 stated that the appellant was not residing in the premises and had allegedly sub-let it to his brother. A notice dated 15-10-1986 (for regularisation of the brother’s occupation) followed. The appellant did not participate in those proceedings. On 20-3-1987 the competent authority ordered the appellant’s eviction and regularised tenancy in favour of the respondent.
The appellant appealed. The appellate authority set aside the eviction, holding that no notice under Section 66 of the Act had been served. The respondent then filed a writ petition under Article 227 of the Constitution. The High Court reinstated the eviction order, presuming service of notice and upholding the finding of sub-letting. The present Supreme Court appeal challenges that High Court judgment.
Legal Issues Presented
- Whether proceedings for eviction and regularisation under Section 66 of the Maharashtra Housing and Area Development Act are void when no notice of eviction is served on the tenant.
- Whether occupation by a named family member, previously disclosed and accepted in Form C, constitutes unauthorised sub-letting justifying eviction under Section 66.
Arguments of the Parties
Appellant's Arguments
- No notice of eviction, as mandated by Section 66(2), was ever served; absence of such notice renders the eviction proceedings and subsequent regularisation void.
- The Board had already authorised the brother’s residence by accepting Form C; therefore, there was no “sub-letting without prior permission,” and eviction on that ground was impermissible.
Respondent's Arguments
- Service of notice in the tenancy-regularisation proceedings should lead to a presumption that eviction notice was also served.
- The appellant had in fact sub-let the premises, justifying both eviction and regularisation of tenancy in favour of the respondent.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Supreme Court analysed Section 66 of the Act, emphasising two mandatory procedural steps: (1) service of a written notice specifying grounds of eviction; and (2) separate notices for eviction and for regularisation of tenancy. The Court found:
- No evidence showed that an eviction notice under Section 66 had been served on the appellant; service of notice is a sine qua non for jurisdiction. Absence of notice makes the eviction order a nullity.
- The High Court’s presumption of service (based on the regularisation notice) is contrary to the statute, which envisages distinct notices for eviction and regularisation.
- On the alleged sub-letting, the Court noted that the appellant had disclosed his brother’s intended occupation in Form C at the time of allotment, and the Board accepted it. Having permitted such occupation, the Board could not later treat it as unauthorised sub-letting.
- Because eviction was void, there was no “vacancy,” eliminating any legal basis for regularising the tenancy in the respondent’s favour.
Holding and Implications
APPEAL ALLOWED; High Court judgment set aside.
The appellant’s eviction order and the regularisation of tenancy in favour of the respondent are declared void. The decision restores the appellant’s tenancy and clarifies that strict compliance with the notice requirements under Section 66 is jurisdictional. The judgment affects only the parties and does not establish new precedent beyond reaffirming statutory due-process requirements.
V.N Khare, J.— The appellant herein was allotted a one-room premises, being Tenement No. 16/1097, situated at Abhuyadaya Nagar, Bombay in the year 1965 by the Bombay Housing and Area Development Board (hereinafter referred to as “the Board”), established and constituted under the Maharashtra Housing and Area Development Act (hereinafter referred to as “the Act”). At the time of allotment, the appellant was required to fill and submit Form ‘C’, indicating therein, the names of persons who would be occupying the premises. The appellant, in compliance thereof, submitted Form ‘C’, wherein he indicated that respondent Thukaram S. Vichare, who is his own real brother, and his wife as the persons forming part of his family would be residing in the said premises. This Form ‘C’, submitted by the appellant, was accepted by the Board.
2. It appears that the officers of the Board inspected the premises and in their inspection reports dated 13-11-1985 and 23-12-1986, it was reported that the appellant was not residing in the premises and he had sub-let the premises to his own brother. In pursuance of the said reports, a notice dated 15-10-1986 was alleged to have been served on the appellant wherein the appellant was required to show cause why the tenancy in respect of the premises in dispute be not regularised in favour of his brother namely Shri Thukaram S. Vichare who was in occupation of the premises. It appears that the appellant did not participate in the said proceedings before the competent authority. Consequently, the competent authority, on 20-3-1987, ordered the eviction of the appellant from the premises and regularised the tenancy in favour of respondent Shri Thukaram S. Vichare.
3. The appellant, aggrieved against the order of the competent authority preferred an appeal before the appellate authority constituted under the Act. The appellate authority found that no notice under Section 66 of the Act having been served on the appellant tenant, the order for his eviction was illegal and void. Consequently, the appeal was allowed. Aggrieved, the respondent filed a writ petition before the High Court under Article 227 of the Constitution, challenging the appellate order dated 5-1-1989. The High Court took the view that the appellant having sub-let the premises to the respondent, the competent authority was justified in terminating the tenancy of the appellant and settling the tenancy in favour of the respondent. The High Court also was of the view that since the appellant was served with the notice in the proceedings for regularising the tenancy in favour of the respondent, the service of notice in respect of proceedings for his eviction has to be presumed. Consequently, the High Court allowed the writ petition filed by the respondent. It is against the aforesaid judgment the appellant is in appeal before us.
4. Learned counsel appearing on behalf of the appellant has raised two submissions. The first submission is that, in the absence of any notice on the appellant for his eviction as required under Section 66 of the Act, the entire proceedings for his eviction and regularisation of tenancy in favour of the respondent was illegal and void.
5. The second submission is that the appellant, in Form ‘C’ having already informed the Board that his brother namely respondent Thukaram S. Vichare and his wife would be residing in the said premises, and the same having been accepted by the Board, it was not open to the Board to question that the appellant has sub-let the premises to his own brother.
6. After we heard learned counsel for the parties and perused the record, we find that both the submissions have merit. To appreciate the arguments of the parties, it is relevant to set out the provisions of the Act which are extracted below. Section 66 of the Act reads as under:
“66. Power to evict certain persons from authority premises.—(1) If the competent authority is satisfied—
(a) that the person authorised to occupy any authority premises has—
(i) not paid rent or compensation or amount lawfully due from him in respect of such premises for a period of more than two months, or
(ii) sub-let, without the previous permission of the authority, the whole or any part of such premises, or
(iii) committed, or is committing, any act which is destructive or permanently injurious to such premises, or
(iv) made, or is making, material addition to, or alteration in, such premises without the previous permission of the authority, or
(v) otherwise acted in contravention of any of the terms, express or implied, under which he is authorised to occupy such premises, or
(vi) failed to vacate the premises required by the authority for the purpose of implementing any plan or project for the sale of tenements and to accept the alternative accommodation offered by the authority;
(b) that any person is in unauthorised occupation of any authority premises;
the competent authority may, for reasons to be recorded in writing, by notice served (i) by post, or (ii) by affixing a copy of it on the outer door or some other conspicuous part of such premises, or (iii) in such other manner as may be prescribed, order that person, as well as any other person, who may be in occupation of the whole or any part of the premises, to vacate the premises in unauthorised occupation, within 24 hours of the date of service of notice, and in any other case within a period of seven days of the date of such service.
(2) Before an order under sub-section (1) is made against any person, the competent authority shall issue, in the manner hereinafter provided, a notice in writing calling upon all persons concerned to show cause within ten days why an order of eviction should not be made.
The notice shall—
(a) specify the grounds on which the order of eviction is proposed to be made; and
(b) require all persons concerned, that is to say, all persons who are or may be in occupation of, or claim interest in, the authority premises, to show cause against the proposed order, on or before such date as is specified in the notice.
If such person makes an application to the competent authority for the extension of the period specified in the notice, such authority may grant the same on deposit of one hundred rupees and on such terms as to payment and recovery of the amount claimed in the notice, as such authority thinks fit.
Any written statement put in by any person and documents produced in pursuance of the notice, shall be filed with the record of the case, and such person shall be entitled to appear before the competent authority by advocate, attorney or other legal practitioner.
The notice to be served under this sub-section shall be served in the manner provided for the service of a notice under sub-section (1); and thereupon, the notice shall be deemed to have been duly given to all persons concerned.”
7. The aforesaid provisions show that the competent authority is empowered to pass an order of eviction against a tenant if it is found that the tenant has sub-let the premises allotted to him without the previous permission of the competent authority. In case any proceedings are to be taken for eviction of a tenant on the ground of sub-letting, the competent authority is required to serve a notice to that effect to the tenant.
8. In the present case, what we find is that there is no evidence on record to show that any notice, as contemplated under Section 66 of the Act, was at all served on the appellant. In the absence of any such notice no proceedings under Section 66 of the Act could have been taken for eviction of the appellant. Proceedings for eviction against a tenant to be valid depend upon service of notice which is required to be given to the tenant. In fact service of notice on the tenant is the sine qua non for taking proceeding for his eviction. If it is found that there was no notice to the tenant, the proceedings for his eviction are totally without jurisdiction and any order for eviction of the tenant in pursuance thereof would be a nullity. It was urged on behalf of the respondent's counsel that the appellant having been served with the notice in the proceedings for regularisation of tenancy in favour of the respondent, it would be presumed that he was served with the notice in eviction proceedings also. This argument of learned counsel runs contrary to the expressed provisions of the Act. The provisions of the Act contemplate two independent proceedings followed by service of notices — (a) one in respect of proceedings for eviction of the tenant; and (b) the other for regularisation of tenancy. Both the proceedings can be initiated only on service of notice on the tenant. In the absence of notice, the proceedings for eviction of the tenant are invalid and as a result there would be no vacancy in the premises which may not warrant initiating any proceedings for regularisation of tenancy in favour of the third party. Further under the Act no such presumption is created about service of notice as held by the High Court. Under such circumstances, the service of notice in the regularisation proceedings cannot be taken as service on the appellant in eviction proceedings. In this case we also do not find any proceedings having been taken for eviction of the appellant as contemplated under Section 66 of the Act. We are, therefore, of the view that the order of eviction passed by the competent authority was void and ineffective.
9. So far as the second submission is concerned, a tenant can be evicted on the ground of sub-letting when he sub-lets the premises without the previous permission of the competent authority. In the present case, at the time of allotment, the appellant submitted Form ‘C’ to the Board, wherein he specifically indicated that his brother, namely the respondent, along with his wife would be occupying the premises. The Board accepted the said Form ‘C’ and allotted the premises to the appellant. The Board after having permitted the appellant's brother to reside in the premises it was not open to it to terminate the tenancy of the appellant on the ground that he has sub-let the premises to his brother. We, therefore, find that the ground on which the appellant's eviction was ordered was illegal. Since there was no vacancy, there was no question of regularisation of tenancy in favour of the respondent. Consequently, the order passed by the competent authority regularising the tenancy in favour of the respondent was also illegal and void.
10. For the aforesaid reasons the order and judgment of the High Court is not sustainable in law. We accordingly set aside the judgment and order of the High Court under appeal. The appeal is allowed. There shall be no order as to costs.
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