LAXMI RAM PAWARversusSITABAI BALU DHOTRE & ANR.

                [2010] 15 (ADDL.) S.C.R. 185


                     LAXMI RAM PAWAR                                   A
                                 v.
               SITABAI BALU DHOTRE & ANR.
               (Civil Appeal No. 2789 of 2005)

                     DECEMBER 1, 2010
                                                     ~
                                                                       B
           [AFTAB ALAM AND R.M. LODHA, JJ.]

   Maharashtra Slum areas (Improvement, Clearance and
Redevelopment) Act, 1971:
                                                                       c
      ss. 4 and 2(e)(v) - 'Slum area' - 'Occupier'- 'Trespasser'
- HELD: 'Occupier' as defined in Clause (v) of s.2(e) includes
any person who is liable to pay to the owner damages for use
and occupation of any land or building and would take within
its fold and sweep a trespasser since such person is not only          0
liable for damages for an act of trespass, but also liable to
pay damages for use and occupation of land or building
trespassed by him - It is immaterial whether damages for use
and occupation are, in fact, claimed or not.

      ss. 4, 2(e)(v) and 22(1 )(a) - 'Slum area' - 'Occupier' - Suit   E
for eviction of trespasser - Prior permission of competent
authority - HELD: Before initiation of any suit or proceedings
for eviction of a trespasser who is 'occupier' within the meaning
of s.2(e)(v), the written permission of the Competent Authority
uls 22(1)(a) is mandatorily required - In the instant case,            F
though the 'occupier' is a trespasser, but the suit for her
eviction was not maintainable for want of written permission
of the competent Authority and was rightly dismissed by the
trial court.
                                                                       G
     Words and Phrases:

     'Trespass' - 'Trespasser' - Connotation of.

     Plaintiff-respondent no. 1 filed a suit against the
                                185                                    H
    186   SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R.


A defendant-appellant and respondent no. 2, the Executive
  Engineer of the State Electricity Board, for declaration,
  possession and permanent injunction in respect of a
  room admeasuring 8' x 10' (the subject room) situate in
  the city of Pune. Her case was that she constructed the
B subject room in 1987, got electricity connection in her
  name, was paying taxes to the Municipal Corporation and
  had the photopass in her name; that she permitted her
  friend, the appellant, to stay temporarily in the subject
  room and when she was asked to vacate it, she refused
c denying the right of the plaintiff. It was stated that the
  defendant was neither a tenant nor a licensee but a
  trespasser and had no right to remain in possession of
  the subject room. The defendant-appellant contested the
  suit stating that she had the photopass for the subject
  room. She denied the room to have been constructed in
0
  1987 and her status of a trespasser. She claimed that the
  subject room was situate in the slum area declared under
  the Maharashtra Slum Areas (Improvement, Clearance
  and Redevelopment) Act, 1971 and the suit was not
  maintainable without the written permission of the
E Competent Authority in view of the prohibition contained
   in s. 22(1 )(a) of the Act. The trial court accepted the title
   of the plaintiff over the subject room, but dismissed the
  suit holding that the suit without permission of the
  Competent Authority was not maintainable. On plaintiff's
F appeal, the first appellate court decreed the suit holding
  that as the defendant was a trespasser, the permission
   of the Competent Authority was not necessary. The
  second appeal of the defendant having been dismissed
   by the High Court in limine, she filed the appeal.
G
        The question for consideration before the Court
    was: "is a trespasser covered by the definition of
    'occupier' in s. 2(e)(v) of the Maharashtra Slum Areas
    (Improvement, Clearance and Redevelopment) Act, 1971"
H
 LAXMI RAM PAWAR v. SITABAI BALU DHOTRE &                187
                   ANR.
and if yes, "whether for his eviction from the land or          A
building in a declared slum area, the written permission
of the Competent Authority uls 22(1)(a) of the 1971 Act is
mandatorily required."

    Allowing the appeal, the Court                              B
    HELD:

     1.1 A 'trespass' is an unlawful interference with one's
person, property or rights. With reference to property, it
is a wrongful invasion of another's possession. [para 10]       c
[194-F-G]

     Words and Phrases, Permanent Edition (West Publishing
Company}, pages 108 and 115; Black's Law Dictionary
(Sixth Edition), 1990, page 1504; Halsbury's Laws of England;
                                                                0
Volume 45 (Fourth Edition), page 631 - referred to.

     1.2 The definition of 'occupier' in s. 2(e) of the
Maharashtra Slum areas (Improvement, Clearance and
Redevelopment) Act, 1971 is not exhaustive but
inclusive. Clause (v) that reads, ·occupier', includes 'any     E
person who is liable to pay to the owner damages for the
use and occupation of any land or building' would surely
take within its fold and sweep a trespasser since such
person is not only liable for damages for an act of
trespass but also liable to pay to the owner damages for        F
the use and occupation of any land or building
trespassed by him. It is immaterial whether damages for
the use and occupation are in fact claimed or not by the
owner in an action against the trespasser. Clause (v),
includes a person who enters the land or building in            G
possession of another with permission or consent but
remains upon. such land or building after such
permission or consent has been revoked since after
revocation of permission or consent, he is liable to pay
damages for unauthorised use of land or building. The           H
    188   SUPREME COURT REPORTS [201 OJ 15 (ADDL.) S.C.R.


A first appellate court relied upon Shanker Dagadu Bakade's
  case which has already been overruled in Taj Mohamed
  Yakub and distinguished the latter on superficial
  reasoning without properly appreciating the statement of
  law exposited therein. The High Court failed to notice
s such grave error in the judgment of the first appellate
  court. [para 15] [198-8-G; 199-A-B]

        Taj Mohamed Yakub vs. Abdul Gani Bhikan (1991) Mh
    L J 263 - approved.

C       Shankar Dagadu Bakade and Ors. vs. Bajirao Balaji
    Darwatkar 1990(2) Born CR 38 - stood overruled.

         2.1 Once it is held that a trespasser is included in the
    definition of 'occupier' in s. 2(e)(v) of the 1971 Act, what
0   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 s. 22(1). Section 22(1) starts with non
    obstante clause and it is clear from the provision
E   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
F   without the previous written permission of the Competent
    Authority. The use of words 'no' and 'shall' in sub-s. (1)
    of s. 22 makes it abundantly clear that prior written
    permission of the Competent Authority for an action
    under clause (a) thereof is mandatorily required and is a
    must. The role of the Competent Authority under the 1971
G   Act is extremely important as the legislature has conferred
    power on him to carry out execution of works in
    improvement of the slum. These provisions contained in
    s. 22 are salutary in light of the scheme of 1971 Act and
    have to be followed. [para 16] [199-8-H]
H
 LAXMI RAM PAWAR v. SITABAI BALU DHOTRE &                  189
                   ANR.
     2.2 In the instant case, respondent no.1 set up the          A
case in th~ plaint that the appellant was a trespasser in
the subject room. The first appellate court has also
recorded a categorical finding, which has not been
disturbed by the High Court, that the appellant was
occupying,.the subject room as trespasser. In the                 B
circumstances, the suit was clearly not maintainable for
want of written permission from the Competent Authority
and was rightly dismissed by the trial court. [para 17]
[200-C]

     2.3 The judgment of the High Court affirming the C
judgment of the first appellate court is set aside. The suit
filed by respondent no.1 stands dismissed. However,·
this will not preclude respondent no.1 from instituting
fresh suit or proceeding for eviction against the appellant
after obtaining necessary written permission from the D
Competent Authority. [para 18] (200-D-E]

                     Case Law Reference:
    (1991) Mh L J 263          approved              para 15
                                                                  E
    1990(2) Bom CR 38          stood overruled       para 15

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2789 of 2005.

     From the Judgment & Order dated 20.09.2004 of the High       F
Court of Judicature at Bombay in Second Appeal No. 1125
of 2004.

    Ravindra Keshavrao Adsure for the Appellant.

    Punam Kumari for the Respondents.                             G

    The Judgment of the Court was delivered by

     R.M. LODHA, J. 1. The decision in this appeal, in our
opinion, turns upon the answer to the following question : is a   H
    190    SUPREME COURT REPORTS [201 OJ 15 (ADDL.) S.C.R.


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
B 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,
C   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
D   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
E   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
F   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
G   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
H was constructed by her in 1987 and she was holding a
  LAXMI RAM PAWAR v. SITABAI BALU DHOTRE &                     191
             ANR. [R.M. LODHA, J.]
photopass for the said room. She denied that she was a                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 i~ Section 22(1 )(a) of that Act.                           B

    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            C
            S.No. 1001 Wadarwadi, Shivajinagar, Pune?

      2.    Does plaintiff further prove that defendant No. 1is
            residing in the said hutment?
                                                                      D
      3.    Does plaintiff further prove that defendants are
            trying to cut off the electric supply from theelectric
            meter No. 26540?

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

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

      6.    Is plaintiff entitled to claim permanent injunctionas
            prayed for?                                               F

      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   G
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.
                                                                      H
    192 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A       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
B on issue nos. 1 and 4 and held that the suit filed by the first
  respondent was maintainable without the permission of the
  Competent Authority as she was a trespasser and in case of
  trespasser in occupation of slum area governed by the 1971
  Act, the permission of the Competent Authority was not
c necessary. The first appellate court, thus, set aside the
  judgment and decree of the trial court and decreed the suit filed
  by the first respondent on July 30, 2004 and directed the
  appellant to deliver the possession of the subject room to the
  first respondent within 60 days therefrom.

D        7. Being not satisfied with the judgment and decree dated
    July 30, 2004 passed by the first appellate court, the appellant
    preferred second appeal before the High Court of Judicature
    at Bombay but without any success as the second appeal was
    dismissed in /imine on September 20, 2004.
E
         8. The answer to the question which has been framed by
    us at the outset has to be found in light of the statutory provisions
    contained in the 1971 Act. Section 2(e) of the 1971 Act defines
    'occupier' as follows :
F        "S.2(e) "occupier" indudes,-

         (i) any person who for the time being is paying or is liable
         to pay to the owner the rent or any portion of the rent of
         the land or building in respect of which such rent is paid
G        or is payable;

         (ii) an owner in occupation of, or otherwise using, his land
         or building;

         (iii) a rent-free tenant of any land or building;
H
 LAXMI RAM PAWAR v. SITABAI BALU DHOTRE &                     193
            ANR. [R.M. LODHA, J.]
     (iv) a licensee in occupation of any land or building; and      A

    (v) any person who is liable to pay to the owner damages
    for the use and occupation of any land or building;"

     9. Section 3(1) empowers the State Government to appoint
the Competen.t Authority for the purposes of the 1971 Act.           8
Section 4 provides for declaration of slum area/s by the
Competent Authority on its satisfaction to the aspects stated
therein. Chapter VI of the 1971 Act deals with the subject titled
'Protection of Occupiers in Slum Areas from Eviction and
Distress Warrants'. Section 22 which falls in Chapter VI to the      C
extent it is relevant for the present appeal reads as follows :

     "S.22. (/) 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             o
     Authority-

           (a) institute, after commencement of the Maharashtra
     Slum      Areas       (Improvement,    Clearance      and
     Redevelopment) Act, 1971, any suit or proceeding for
     obtaining any decree or order for the eviction of an            E
     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; or

                                                                     F

          (2) Every person desiring to obtain the permission
    referred to in sub-section (1) ........ shall make an
    application in writing to the Competent Authority in such
    form and containing such particulars as may be prescribed.       G

    (3) 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 permission.        H
    194     SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A         (4) In granting or refusing to grant the permission under
          clause (a) or (b) of subsection (1 ), ........ the Competent
          Authority shall take into account the following factors,
          namely:-

          (a) whether alternative accommodation within the means
B
          of the occupier would be available to him, if he were
          evicted;

          (b) whether the eviction is in the interest of i:nprovement
          and clearance of the slum area;
c
          (b-1)whether, having regard to the relevant circumstances
          of each case, the total amount of arrears of rent or
          compensation and the period for which it is due and the
          capacity of the occupier to pay the same, the occupier is
0         ready and willing to pay the whole of the amount of arrears
          of rent or compensation by reasonable installments within
          a stipulated time;

          (c) any other factors. if any, as may be prescribed ..... .

E
          (5) Where the Competent Authority refuses to grant the
          permission under any of the clauses of sub-section (/) it
          shall record a brief statement of the reasons for such
          refusal, and furnish a copy thereof to the applicant."
F
      10. A 'trespass' is an unlawful interference with one's
  person, property or rights. With reference to property, it is a
  wrongful invasion of another's possession. In Words and
  Phrases, Permanent Edition (West Publishing Company),
G pages 108, 109 and 115, in general, a 'trespasser' is
  described, inter alia, as follows:
           "A "trespasser" is a person who enters or remains upon
          ·land in the possession of another without a privilege to do
           so created by the possessor's consent or otherwise. In re
H          Wimmer's Estate, 182 P.2d 119, 121, 111 Utah 444."
  LAXMI RAM PAWAR v. SITABAI BALU DHOTRE &                       195
             ANR. [R.M. LODHA, J.]
    "A "trespasser" is one entering or remaining on land in              A
    another's possession without a privilege to do so created
    by possessor's consent, express or implied, or by law.
    Keesecker v. G.M. Mckelvey Co., 42 N.E. 2d 223, 226,
    227, 68 Ohio App. 505."
                                                                         B

    "A "trespass" is a transgression or wrongful act, and in its
    most extensive signification includes every description of
    wrong, and a 'trespasser'' is one who does an unlawful act,
    or a lawful act in an unlawful manner, to the injury of the          C
    person or property of another. Carter v. Haynes, Tex., 269
    S.W. 216, 220."

    11. In Black's Law Dictionary (Sixth Edition), 1990, page
1504, the term 'trespasser' is explained as follows :                    D

    "Trespasser. One who has committed trespass. One who
    intentionally and without consent or privilege enters
    another's property. One who enters upon property of
    another without any right, lawful authority, or express or
    implied invitation, permission, or license, not in                   E
    performance of any duties to owner, but merely for his own
    purpose, pleasure or convenience".

      12. In Halsbury's Laws of England; Volume 45 (Fourth
Edition), pages 631-632, the following statement is made under           F
the title 'What Constitutes Trespass to Land'.

    "Every unlawful entry by one person on land in the
    possession of another is a trespass for which an action
    lies, even though no actual damage is done. A person
    trespasses upon land if he wrongfully sets foot on it, rides         G
    or drives over it or takes possession of it, or expels the
    person in possession, or pulls down or destroys anything
    permanently fixed to it, or wrongfully takes minerals from
    it, or places or fixes anything on it or in it, or if he erects or
    suffers to continue on his own land anything which invades           H
    196 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.


A        the airspace of another, or if he discharges water upon
         another's land, or sends filth or any injurious substance
         which has been collected by him on his own land onto
         another's land."

    In the same volume, page 634, under the title 'trespass ab·
8
    initio', the legal position is stated thus :

         "If a person enters on the land of another under an authority
         given him by law, and, while there, abuses the authority by
         an act which amounts to a trespass, he becomes a
C        trespasser ab initio, and may be sued as if his original
         entry were unlawful. Instances of an entry under the authority
         of the law are the entry of a customer into a common inn,
         of a reversioner to see if waste has been done, or of a
         commoner to see his cattle.
D
              To make a person a trespasser ab initio there must
         be a wrongful act committed; a mere nonfeasance is not
         enough."

  The aforesaid statement takes into consideration the Six
E Carpenters' case 1 wherein the general rule given is this, 'when
  entry, authority or licence is given to any one by the law, and
  he doth abuse it, he shall be a trespasser ab initio'.

       13. In Law Lexicon, The Encyclopaedic Law Dictionary by
F P. Ramanatha Aiyar, 2nd Edition, Reprint 2000, page 1917,
  the word 'trespass' is explained by relying upon Tomlins
  Dictionary of Law Terms as follows:

         "Trespass, in its largest and most extensive sense,
         signifies any transgression or offence against the law of
G        nature, of society, or the country in which we live; whether
         it relates to a man's person or his property. Therefore
         beating another is a trespass; for which an action of
         trespass in assault and battery will lie. Taking or detaining

H   1.   (1610) 8 Co Rep 146.
  LAXMI RAM PAWAR v. SITABAI BALU DHOTRE &                    197
             ANR. [R.M. LODHA, J.]

    a man's goods are respectively trespasses, for which an          A
    action of trespass on the case in trover and conversion,
    is given by the Law; so, also, non-performance of promises
    or undertakings is a trespass, upon which an action of
    Trespass on the case in assumesit is grounded: and, in
    general, any misfeasance, or act of one man, whereby             B
    another is injuriously affected or damnified, is a
    transgression, or trespass, in its largest sense; for which
    an action will lie."

    14. In Salmond on the Law of Torts, 17th Edition by R.F.V .. C
Heuston, 1977, page 41, the expression, 'Trespass by
r~maining on land' is explained in the following manner :

    "Even a person who has lawfully entered on land in the
    possession of another commits a trespass if he remains
    there after his right of entry has ceased. To refuse or omit     D
    to leave the plaintiffs land or vehicle is as much a trespass
    as to enter originally without right. Thus, any person who
    is present by the leave and licence of the occupier may,
    as a general rule, when the licence has been properly
    terminated, be sued or ejected as a trespasser, if after         E
    request and after the lapse of a reasonable time he fails
    to leave the premises."

     Under the title 'Continuing Trespasses', page 42, it is
stated:
                                                                     F
    "That trespass by way of personal entry is a continuing
    injury, lasting as long as the personal presence of the
    wrong doer, and giving rise to actions de die in diem so
    long as it lasts, is sufficiently obvious. It is well-settled,
    however, that the same characteristic belongs in law even        G
    to those trespasses which consist in placing things upon
    the plaintiffs land. Such a trespass continues until it has
    been abated by the removal of the thing which is thus
    trespassing; successive actions will lie .from day to day
    until it is so removed; and in each action damages (unless       H
    198     SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.


A         awarded in lieu of an injunction) are assessed only upto
          the date of the action. Whether this doctrine is either logical
          or convenient may be a question, but it has been
          repeatedly decided to be the law."

B         15. Insofar as the definition of 'occupier' in Section 2(e)
    of the 1971 Act is concerned, it must be immediately stated
    that the said definition is not exhaustive but inclusive. Clauses
    (i) to (iv) of Section 2(e) definitely do not embrace within itself
    a trespasser but Clause (v) that reads, ·occupier' includes 'any
    person who is liable to pay to the owner damages for the use
C   and occupation of any land or building' would surely take within
    its fold and sweep a trespasser since such person is not only
    liable for damages for an act of trespass but also liable to pay
    to the owner damages for the use and occupation of any land
    or building trespassed by him. It is immaterial whether
D   damages for the use and occupation are in fact claimed or not
    by the owner in an action against the trespasser. By no stretch
    of imagination, a trespasser could be taken out of the definition
    of 'occupier' in Section 2(e)(v) of the 1971 Act. Clause (v), in
    our opinion, includes a person who enters the land or building
E   in possession of another with permission or consent but
    remains upon such land or building after such permission or
    consent has been revoked since after revocation of permission
    or consent, he is liable to pay damages for unauthorised use
    of land or building. The Division Bench of the Bombay High
F    Court in Taj Mohamed Yakub v. Abdul Gani Bhikan 2 has taken
    the view that a trespasser is included in the definition of
    ·occupier' under Section 2(e)(v) of the 1971 Act which, we hold,
     is the correct view. The contrary view taken by a Single Bench
     of the Bombay High Court in Shankar Dagadu Bakade and
G    Ors. v. Bajirao Balaji Darwatkar is not right on this point and
     has rightly been overruled by the Division Bench in Taj
     Mohamed Yakub 2 • Strangely, the first· appellate court relied
     upon Shanker Dagadu Bakade's case 3 which has already been
    2.    (1991) Mh LJ 263.
H   3.    1990 (2) Born CR 38.
  LAXMI RAM PAWAR v. SITABAl BALU DHOTRE &                     199
             ANR. [R.M. LODHA, J.]
overruled in Taj Mohamed Yakub 2 and distinguished Taj                A
 Mohamed Yakub 2 on superficial reasoning without properly
 appreciating the statement of law exposited therein. The High
Court, unfortunately, failed to notice such grave error in the
judgment of the first appellate court.
                ''                                                    B
      16. 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 requited as                 C
mandated by Section 22(1 ). Section 22(1) starts with non
obstante clause and it is clear from the 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         D
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 the Competent Authority for an actio"n
under clause (a) thereof is a must. The role of the Competent         E
Authority under the 1971 Act is extremely important as the
legislature has conferred power on him to carry out execution
of works in improvement of the slum. Sub-Section (2) of Section
22 requires the person desiring to obtain the permission to
make an application in writing to the Competent Authority. As         F
per sub-section (3) on receipt of such application, the
Competent Authority by an order in writing may either grant or
refuse to grant such permission after giving an opportunity to
the parties of being heard and after making such summary
enquiries into the circumstances of the case as it thinks fit. Sub-   G
section (4) of Section 22 requires the Competent Authority to
take into account the factors set out therein for granting or
refusing the permission. These provisions contained in Section
22 are salutary in light of the scheme of 1971 Act and have to
be followed. It has to be held, therefore, that for eviction of a     H
    200    SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A trespasser who is 'occupier' within the meaning of Section
  2(e)(v) of 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.
B
       17. Insofar as present case is concerned, the first
  respondent set up the case in the plaint that the appellant was
  a trespasser in the subject room. The first appellate court has
  also recorded a categorical finding, which has not been
  disturbed by the High Court, that the appellant was occupying
C 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 the trial
  court.

o       18. In view of the above, the appeal is allowed; the
  judgment of the High Court dated September 20, 2004
  affirming the judgment of the 8th Additional District Judge dated
  July 30, 2004 is set aside. The suit filed by the first respondent
  stands dismissed. However, this will not preclude the first
E respondent in instituting fresh suit or proceeding for eviction
  against the appellant after obtaining necessary written
  permission from the Competent Authority. The parties shall bear
  their own costs.

    R.P.                                          Appeal allowed.