IMPORTANT POINT
For eviction of a trespasser who is ‘occupier’ within the meaning of Section 2(e)(v) of Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 Act from the land or building or any part thereof in a declared slum area, the written permission of the Competent Authority under Section 22(1)(a) is mandatorily required.

Headnote:Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 - Sections 2(e)(v),22(1)(a) - Trespasser –Whether is covered by definition of ‘occupier’ in Section 2(e)(v) of 1971 -Whether for his eviction from land or building in a declared slum area, the written permission of Competent Authority under Section 22(1)(a) of the 1971 Act is mandatorily required-Held once it is held that a trespasser is included in the definition of ‘occupier’ in Section 2(e)(v) of the 1971 Act, what necessarily follows is that before initiation of any suit or proceeding for eviction of such trespasser, the previous written permission of the Competent Authority is required as mandated by Section 22(1)-Section 22(1) starts with non obstante clause and it is clear from provision contained in clause (a) thereof that no person shall institute any suit or proceeding for obtaining any decree or order for eviction of the occupier from any building or land in a slum area or for recovery of any arrears of rent or compensation from any such occupier or for both without the previous written permission of the Competent Authority- The use of words ‘no’ and ‘shall’ in sub-section (1) of Section 22 makes it abundantly clear that prior written permission of Competent Authority for an action under clause (a) thereof is a Must- Instantly respondent1 set up the case in the plaint that appellant was a trespasser in subject room-The first appellate court also recorded a categorical finding, which had not been disturbed by High Court,that appellant was occupying the subject room as trespasser- In the circumstances, the suit was clearly not maintainable for want of written permission from the Competent Authority and was rightly dismissed by trial court-Impugned judgement of High Court set aside-Appeal allowed. (Paras 16 to 18)
       Facts of the Case :
        Is a trespasser covered by the definition of ‘occupier’ in Section 2(e)(v) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 and if yes, whether for his eviction from the land or building in a declared slum area, the written permission of the Competent Authority under Section 22(1)(a) of the 1971 Act is mandatorily required are the questions that arose for consideration in present appeal.
       Findings of the Court :
        Once it is held that a trespasser is included in the definition of ‘occupier’ in Section 2(e)(v) of the 1971 Act, what necessarily follows is that before initiation of any suit or proceeding for eviction of such trespasser, the previous written permission of the Competent Authority is required as mandated by Section 22(1).Section 22(1) starts with non obstante clause and it is clear from provision contained in clause (a) thereof that no person shall institute any suit or proceeding for obtaining any decree or order for eviction of the occupier from any building or land in a slum area or for recovery of any arrears of rent or compensation from any such occupier or for both without the previous written permission of the Competent Authority. The use of words ‘no’ and ‘shall’ in sub-section (1) of Section 22 makes it abundantly clear that prior written permission of Competent Authority for an action under clause (a) thereof is a Must. Instantly respondent1 set up the case in the plaint that appellant was a trespasser in subject room. The first appellate court also recorded a categorical finding, which had not been disturbed by High Court,that appellant was occupying the subject room as trespasser. In the circumstances, the suit was clearly not maintainable for want of written permission from the Competent Authority and was rightly dismissed by trial court. Impugned judgement of High Court was set aside. Appeal was allowed
       Result : Appeal allowed.

JUDGMENT

R.M. Lodha, J. —

The decision in this appeal, in our opinion, turns upon the answer to the following question : is a trespasser covered by the definition of ‘occupier’ in Section 2(e)(v) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (for short, ‘ the 1971 Act’) and if yes, whether for his eviction from the land or building in a declared slum area, the written permission of the Competent Authority under Section 22(1)(a) of the 1971 Act is mandatorily required.

2. The aforesaid question arises in this way. The first respondent—Sitabai Balu Dhotre filed a suit for declaration, possession and permanent injunction in respect of a room admeasuring 8 x 10 ft. situate in Survey No. 1001, Wadarwadi bearing Hut No. 12/161/B/P/424, Taluka Haveli, Pune (for short, ‘subject room’) against the appellant—Laxmi Ram Pawar and the second respondent—the Executive Engineer, Shivajinagar, Sub Division, Maharashtra State Electricity Board, Pune in the Court of 10th Joint Civil Judge, Junior Division, Pune. The case set up by the first respondent was that the subject room was constructed by her in 1987; she got electricity connection in her name and has been paying taxes to the Pune Municipal Corporation. She claimed that she was having photopass in her name. According to her, she permitted the appellant being her friend to stay temporarily for two months in the subject room as she (appellant) was not having any shelter to live in. After expiry of two months, the first respondent asked the appellant to vacate the subject room but she requested the first respondent to allow her to stay in that room for some more time as she was arranging for some alternative accommodation but later on, the appellant denied the first respondent’s right in the subject room necessitating the legal proceedings against her. The first respondent averred that the appellant was neither tenant nor licensee but a trespasser and has no right to remain in possession of the subject room.

3. The appellant traversed the first respondent’s claim and set up the case in the written statement that the subject room was constructed by her in 1987 and she was holding a photopass for the said room. She denied that she was a trespasser. She set up a plea that subject room was situate in the slum area declared under the 1971 Act and the suit filed by the first respondent was not maintainable without written permission of the Competent Authority in view of the prohibition contained in Section 22(1)(a) of that Act.

4. On the basis of the pleadings of the parties, the trial court framed the following issues :

“1. Does plaintiff prove that he has title over the hutment bearing No. 12/261/B/P/424 situated at S.No. 1001 Wadarwadi, Shivajinagar, Pune?

2. Does plaintiff further prove that defendant No. 1 is residing in the said hutment?

3. Does plaintiff further prove that defendants are trying to cut off the electric supply from the electric meter No. 26540?

4. Whether the suit is tenable without permission of competent authority?

5. Is plaintiff entitled to claim possession of the suit hutment from defendant No. 1?

6. Is plaintiff entitled to claim permanent injunction as prayed for?

7. What order and decree?”

5. After recording the evidence and hearing the parties, the trial court recorded its findings in the negative in respect of issue nos. 1,3,5 and 6 and in the affirmative with regard to issue no. 2. While dealing with issue no. 4, the trial court held that the suit without obtaining the written permission from the Competent Authority was not tenable. Accordingly, the trial court dismissed the suit on August 31, 2000.

6. The first respondent challenged the judgment and decree passed by the trial court in appeal before the District Court, Pune which was transferred to the court of the 8th Additional District Judge, Pune for hearing and final disposal. The first appellate court reversed the findings of the trial court on issue nos. 1 and 4 and held that th

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2010 Supreme(SC) 1164

2010 (8) Supreme 171SUPREME COURT OF INDIAAftab Alam and R.M. Lodha, JJ.Laxmi Ram Pawar — AppellantversusSitabai Balu Dhotre & Anr. — RespondentsCivil Appeal No. 2789 of 2005Decided on : 1-12-2010

2010 (8) Supreme 171
SUPREME COURT OF INDIA
Aftab Alam and R.M. Lodha, JJ.
Laxmi Ram Pawar — Appellant
versus
Sitabai Balu Dhotre & Anr. — Respondents
Civil Appeal No. 2789 of 2005
Decided on : 1-12-2010