Holding

Eviction and tenancy regularization orders are void as no notice under Section 66 was served; notice in regularization proceedings cannot be presumed as notice for eviction, and sub‑letting to the brother disclosed in Form C is not a ground for eviction.

Summary

The appellant, D.S. Vichare, was allotted a one‑room flat by the Bombay Housing and Area Development Board under the Maharashtra Housing and Area Development Act and indicated on Form C that his brother and sister‑in‑law would occupy the premises. Subsequent board inspections alleged that the appellant had sublet the flat to his brother, leading to a show‑cause notice and an order by the Competent Authority to evict the appellant and regularize the tenancy in favor of the brother. The Appellate Authority set aside the eviction order, finding that no notice under Section 66 of the Act had been served, but the High Court reversed, presuming notice was served in the eviction proceedings. The Supreme Court held that a valid eviction under Section 66 requires a specific notice, and service of notice in the regularization proceeding cannot be presumed to satisfy this requirement. Consequently, the eviction order was declared void, and because there was no vacancy, the subsequent regularization of tenancy in favor of the brother was also void. The Court allowed the appeal, setting aside the High Court judgment.

Issues considered

Whether service of a notice under Section 66 of the Maharashtra Housing and Area Development Act is a prerequisite for eviction proceedings.
Whether a notice served in tenancy regularization proceedings can be presumed to satisfy the notice requirement for eviction.
Whether sub‑letting to a brother, as disclosed in Form C, constitutes a valid ground for eviction.

Subjects

evictionnotice requirementsub‑lettingtenancy regularizationMaharashtra Housing and Area Development Acthousing boardcivil appeal

Judgment

A DA TT ARAM S. VICHARE .
v.
THUKARAM S. VICHARE AND ORS.

AUGUST 12, 1999

B (V.N. KHARE AND S.N. PHUKAN, JJ.]

Housing:

Maharashtra Housing and Area Development Act: Section 66-.
C Eviction-Appellant allotted premises by the Board under the Act-
Respondent (appellant's real brother) residing in the premises since inception
of the tenancy-Board aware of the fact of ·respondent's residing in the
premises since inception-After inspections by the Board appellant alleged
to have been served a show cause notice for eviction on the ground of sub-
letling-Eviction of the appellant from the premises ordered by the Competent
D Authority under the Act-Tenancy regularized in favour of the respondent-
Appeal preferred before the Appellate Authority-Eviction order held to he
illegal-No notice under Section 66 found to be served on appellant-
Appellate order challenged by respondent in writ petition before the High
Court-Eviction order passed by the Competent Authority held to be justified-
£ Appellant presumed to be served in view of the service of notice in
regularization of tenancy proceedings-Order of the High Court appealed
against-Held-Eviction order passed against the .appellant is null and
void-Service of notice is sine qua non/or eviction proceedings-Service of
notice in regularization of tenancy proceedings cannot be presumed to be
service in eviction proceedings-No vacancy in respect of tenancy in view
F of void eviction order-Consequently, order regularizing tenancy in favour
of the respondent null and void.

In 1965, the appellant was allotted a one room premises by the Bombay
Housing and Area Development Board. The said Board is constituted under
the Maharashtra Housing and Area Development Act At the time of allotment,
G as a requiSite condition, the appellant filled and submitted Form 'C' mentioning
the names of his real brother i.e. tl\e resporidenfand his wife as the persons
who would be occupying the premises. The said Form 'C' was accepted by tb'e
Board. The Board officials conducted two inspections of the premises on the
basis of which it was reported that t.he appellant was not residing in the
premises and had sublet the premises to his own brother. In pursuance of
H 404 .
·, '
D.S. VICHARE v. T.S. VICHARE 405
the said reports a notice was allegedly served upon the appellant requiring A
him to show cause why the tenancy in respect of the premises be not
regularized in favour of the respondent (appellant's brother) who was in
occupation of the premises. Apparently the appellant did not participate in
the said proceedings before the Competent Authority. Consequently, the
Competent Authority ordered eviction of the appellant from the premises and B
also regularized the tenancy in favour ofthe respondent.

Aggrieved by the abovesaid order of the Competent Authority, the
appellant preferred an appeal before the Appellate Authority constituted
under the Act Allowing the appeal, the Appellate Authority held the eviction
order to be illegal and void on the basis of the fact that no notice under C
Section 66 of the Act had been served. The said order of the Appellate
Authority was challenged by the respondent before the High Court in a writ
petition. The High Court allowed the writ petition holding the Competent
Authority to be justified in terminating the tenancy of the appellant and
regularizing it in favour of the respondent. The High Court also presumed
that the appellant was served notice in eviction proceedings in view of his D
being served notice in respect of the proceedings for regularization of
tenancy in favour of the respondent. Hence this appeal.

The appellant contended that the entire proceedings for his eviction
and regularization of tenancy in favour of the respondent were illegal and
void as no notice under Section 66 of the Act was served on him for his E
eviction. It was also contended that in view of the acceptance of Form 'C'
submitted by him clearly mentioning the respondent and his wife to be the
occupants of the said premises, it was not open to the Board to take sub-
letting as a ground of eviction.
F
Allowing the appeal, this Court

HELD 1. According to the provisions of Section 66 of the Maharashtra
Housing and Area Development Act, the Competent Authority is empowered
to pass an order of eviction against a tenant if it is found that the tenant bad
sub-let the premises allotted to him without previous permission of the G
Competent Authority. In case any proceeding is 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. A proceeding for eviction against
a tenant to be valid depends upon service of notice. In fact service of notice
on the tenant is sine qua non for taking pro~e~ding for his eviction. If it is
found that there was no notice to the tenant, the proceedings for eviction is H
406 SUPREME COURT REPORTS [1999) SUPP. I S.C.R.

A totally without jurisdiction and any order for eviction of the tenant in
pursuance thereof would be nullity. In the present case there is no evidence
on record to show that any notice, as contemplated under Section 66 of the
Act, was served at all on the appellant. In the absence of any such notice no
proceedings under Section 66 of the Act could have been taken for the
B eviction of the appellant. (410-A-B-C-D]

2. The provisions of the Act contemplate two independent proceedings
followed by service of notices - (a) one in respect of proceeding for eviction
of the tenant; and (b) other for regularization of tenancy. Both the proceedings
can be initiated only on service of notice on the tenant. In the absence of
C notice, the proceeding for eviction of the tenant is invalid and as a result
there would be no vacancy in the premises, which may not warrant initiating
any proceeding for regularization of tenancy in favour of a 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 i:iotice
in the regularization proceedings cannot be taken as service on the appellant
D in eviction proceedings. (410-E-FJ

3. 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.
The Board 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
E that he has sublet the premises to his brother; therefore, the ground on
which the appellant's eviction was ordered was illegal. Since there_ was no
vacancy, there was no question of regularization of tenancy in favour of the
respondent. The order passed by the Competent Authority regularizing the
tenancy in favour of the respondent was also illegal and void.
(410-H; 411-A-B-C)
F
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1802 of
1991.

From the Judgment and Order dated 3 .12.1990 of the Bombay High
Court in W.P. No. 123 of 1989.
G
U1na Datta for the Appellant.

R.N. Keshwani for the Respondents.

The Judgment of the Court was delivered by

H V. N. KHARE, J. The appellant herein was allotted a one-room premises,
D.S. VICHARE v. T.S. VICHARE [V.N. KHARE, J.] 407
being tenement No. 16/1097; situated at Abhuyadaya Nagar, Bombay in the A
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 Fonn 'C',
indicating therein, the names of persons who would be occupying the premises. B
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.
c
It appears that the officers of the Board inspected the premises and in
their Inspection Reports dated 13. l l .1985 and 23 .12.1986, it was reported that
the appellant was not residing in the premises and he has sublet 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 D
be not regularized 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 20th March; 1987, ordered the
eviction of the appellant from the premises and regularized the tenancy in E
favour of respondent- Shri. Thukaram S. Vichare.

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 F
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. l. l 989. The High Court
took the view that the appellant having sublet the premises to the respondent,
the Competent Authority was justified in terminating the tenancy of the G

- 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 proceeding for regularizing the tenancy in favour of the respondent,
the service of notice in respect of proceedings for his eviction has to be
presumed. Consequently, High Court allowed the writ petition filed by the
respondent. It is against the aforesaid judgment the appellant is in appeal H
408 SUPREME COURT REPORTS [1999] SUPP. I S.C.R.

A before us.

Learned counsel appearing on behalf of the appellant has raised two
submissions. The first submission is that, in the absence of any notke on the
appellant for his eviction as required under Section 66 of the Act, the entire
proceedings for his eviction and regularization of tenancy in favour of the
B respondent was illegal and void.

The second submission is that the appellant, in Form· 'C' having already
informed the Board that his brother, namely respondent Thukarani S. Vichare
and his wife would be residing in the said premises, and the same having been
C accepted by the Board, it was not open to the Board to question that the
appellant has sublet the premises to his own brother.

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
D extracted below:-

Section 66 of the Act reads as under:

"66. Power to evict certain persons from Authority premises

(I) If the Competent Authority is satisfied
E
(a) that the person authorized 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

F (ii) Sub-let, without the previous permission of the Authority, the
whole or any part of such premises, or

(iii) committed, or is committing, an:s-- act which is destructive, or
permanently injurious to such premises, or

G (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 authorized to occupy such premises,

H or
D.S. VICHAREv. T.S. VICHARE [V.N.KHAKE,J.] 409
(vi) failed to vacate the premises required by the Authority for the A
purpose of implementing any plan or project for the sale of tenements
and accept the alternative accommodation offered by the Authority:

(b) that any person is in unauthorized occupation of any Authority
premises:
B
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 outer conspicuous part of such premises or (iii) in such
other manner as may be prescribed, order that persons, 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 unauthorized occupation, C
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 (I) is made against any person,
the Competent Authority shall issue, in the manner hereinafter
provided a notice in writing calling upo·n all persons concerned to D
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
E
(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 F
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,
such Authority thinks fit.

Any written statement put in by any person and documents G
produced in pursuance of the notice, shall be filed with the record of
the case, and such persons shall be entitled to appear before the
Competent Authority by advocate, attorney or other lega·I practitioner.

The notice to be served under this sub-section shall be served in
the manner provided for the service of another under sub-section (I); H
410 SUPREME COURT REPORTS [1999] SUPP. I S.C.R.

A and thereupon, the notice shall be deemed to have been duly given
to all persons concerned."

The aforesaid provision show that the Competent Authority is
empowered to pass ail order of eviction against a tenant if it is found that
the tenant has sub-let the premises allotted to him without previous permission
B of the Competent Authority. In case any proceeding is to be taken for eviction
of a tenant on the ground of subletting, the Competent Authority is required
to serve a notice to that effect to the tenant.

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
C 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. A proceeding for eviction against a tenant to be valid depends
upon service of notice which is required to be given to the tenant. In fact
service of notice on the tenant is sine qua non for taking proceeding for his
D eviction. If it is found that there.was no notice to the tenant, the proceedings
for his eviction is totally without jurisdiction and any order for eviction of the
tenant in pursuance thereof would be nullity. It was urged on behaJf of the
respondent's counsel that the appellant having been served with the notice
in the proceedings for regularization of tenancy in favour of the respondent,
it would be presumed that he was served with the notice in eviction proceedings
E 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 proceeding
for eviction of the tenant; and (b) other for regularization of tenancy. Both
the proceedings can be initiated only on service of notice on the tenant. In
the absence of notice, the proceeding for eviction of the tenant is invalid and
F as a result there would be no vacancy in the premises which may not warrant
initiating any proceeding for regularization of tenancy in favour of 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 regularization proceedings cannot be taken as service on the appellant
G in eviction proceedjngs. 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.

So far as the second submission is concerned, a tenant can be evicted
H on the ground of sub-Jetting when he sub-lets the premises without the
D.S. VICHARE v. T.S. VICHARE [V.N. KHARE, J.] 411

previous permission of the Competent Authority. In the present case, at the A
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 B
terminate the tenancy of the appellant on the ground that he has sublet the
premises to his brother. We, therefore, find that the ground on which appellant's
eviction was ordered was illegal. Since there was no vacancy, there was no
question ofregulariz.ation of tenancy in favour of the respondent. Consequently,
the order passed by the Competent Authority regularizing the tenancy in
favour of the respondent was also illegal and void. C
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.
D
R.C.K. Appeal alloweg.

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