Praveen Kumar Passi v. Pradip Syamlal Das

(v) In spite of service the Respondent No.1 failed to appear before the Competent Authority.

(vi) The said Eviction Application No.59 of 2014 was allowed by the learned Competent Authority, Konkan Division, Mumbai by Order dated 26th December 2014. The operative Order passed by the Competent Authority reads as under:- “The Application is allowed as under:

1. The Respondent is directed to handover vacant and peaceful possession of the suit premises i.e. Flat No.502, 5TH Floor, Sai Uphar C.H.S.Ltd., Near New Viva College, Bolinj, Virar (West), Taluka – Vasai, District – Thane, to the Applicant.

2. The Respondent is directed to pay to the Applicant Rs.6,500/- per month from 15.01.2013 to 14.07.2013 and double the amount of compensation that is Rs.13,000/- per month from 15.07.2013 till the possession is handed over to the Applicant.

3. The Applicant is at liberty to appropriate the amount of Security deposit towards compensation and recover the remaining amount from the Respondent.”

(vii) On 18th April 2015, the Competent Authority executed the said

Order partly with the help of Police Officials of Agashi Police Station, Virar (West), Thane. However, as at that time various articles belonging to the Respondent No.1 were found in the said premises, said articles were kept in one bedroom and the said bedroom was sealed and accordingly, Panchanama was executed on 18th April 2015. In the Panchanama, it is mentioned that the said premises is consisting of two bedrooms, hall and a kitchen. About 48 articles belonging to Respondent No.1 were kept in one bedroom and the said bedroom is sealed. Relevant portion of said Panchanama dated 18th April 2015 reads as under:- ßizfroknh;kaps ojhy izek.ks vuqdzekad 1 rs 48 Ik;Zar csM:e uacj,d e/ks Bso.;kr vkys vkgs- lnj csM:e flycan d:u Bso.;kr vkys vkgs- yks[kaMh dikVkyk dkxnh lhy yko.;kr vkys vkgs- rlsp izfroknh;kapk fLiyhV,- lh- gkWy e/ks rlkp Bso.;kr vkyk vkgsykdMh csM e/ks izfroknh;kaps lkeku tSls Fks Bso.;kr vkys vkgslnfudk nksu csM:e] gkWy vkf.k fdpu v’kh vkgs-,dk csM:e e/ks lnfudsrhy izfroknh;kaps loZ lkeku BsÅu,d csM:e gkWy o fdpu iw.kZi.ks fjDr dj.;kr vkyk vkgs- oknh Jh izfo.k dqekj iklh;kauk izfroknh;kaps lkekuklghr lnfudspk rkck iksyhl vkf.k iapkle{k ns.;kr vkyk vkgs-Þ English translation of the above is as under:- “The Defendant’s articles as per Sr. No. 1 to 48, as mentioned above, have been kept in bedroom number one and the said bedroom has been sealed. A Paper Seal has been affixed to the steel cupboard. Further, the Split A.C. of the Defendant has been kept as it is in the Hall. Moreover, the things and articles of the Defendant have been kept as it is in the wooden bed. The Flat consists of two bed rooms, a hall and a kitchen room. All the things and articles of the Defendant in the Flat have been kept in one bed room and the another bed room, hall and the kitchen room have been totally vacated and the possession of the Flat together with the things and articles of the Defendant has been handed over to the Plaintiff by name Shri Pravin Kumar Pasi in the presence of the Police and the Panchas.”

(viii) Learned Advocate of the Petitioner had issued notice dated 30th April 2015, 11th May 2017 and 30th March 2019 to the Respondent No.1 inter alia calling upon him to take articles from the said room. As the Respondent No.1 failed to comply with said notices, ultimately Execution Application i.e. Misc. Application No.31 of 2019 was filed by the Petitioner inter alia seeking the reliefs which are already set out herein above.

(ix) As set out herein above, the learned Competent Authority rejected the said Misc. Application by impugned Order dated 10th January 2020, which is challenged in the present Writ Petition. [V] Submissions of Mr. S. M. Gorwadkar, learned Amicus Curiae:- As the important question of law is involved in the matter, Mr. S. M. Gorwadkar, learned Senior Counsel has been requested to assist the Court. Learned Amicus Curiae pointed out the following aspects:-

(i) He pointed out Chapter V and Chapter VIII of the Rent Act. He pointed out Section 24 and Sections 40 to 51 of the Rent Act, and submitted that the Competent Authority created under the Rent Act is an independent statutory authority for which independent procedure has been prescribed and has also been vested with the powers to execute or implement its own orders of eviction.

(ii) He submitted that as per Section 45 of the Rent Act, the

Competent Authority is empowered to execute the orders of the Competent Authority of eviction if any person who refuses or fails to comply with the order of eviction. As per Section 45 of the Rent Act, the Competent Authority or any other officer duly authorised by the Competent Authority is empowered to evict the person who refuses or fails to comply with the order of eviction and take possession of the suit premises and thereafter, the Competent Authority is empowered to deliver the possession of the suit premises to the Landlord/Applicant and for the said purposes, the Competent Authority or its authorised officer is permitted to use such force as may be necessary. He therefore, submitted that what is contemplated is taking possession of the entire premises from the person against whom eviction order is passed and handing over possession of the entire premises to the Landlord/Applicant. He therefore submitted that until the possession of the entire premises is handed over to the Petitioner, it cannot be said that the order has been completely executed and therefore, the Competent Authority continues to have jurisdiction till the entire order is executed. He therefore, submitted that there is no question of re-execution of the eviction Order as what has been done earlier is only partial execution of the eviction order. It is therefore, submitted that the Competent Authority continues to have the power till the eviction order is completely executed by delivery of the entire premises in the possession of the Landlord.

(iii) As far as the aspect of disposal of attached goods of the

Respondent No.1 are concerned, learned Senior Counsel submitted that in view of Section 43(5) of the Rent Act, the Competent Authority has all the powers which the Court of Small Causes possesses in order to give full effect to the eviction Order while exercising the power under Section 45 of the Rent Act.

(iv) He submitted that as per Section 43(5), the Competent

Authority is to follow the procedure of the Court of Small Causes for the proceedings under Chapter VIII including Section 45 which deals with the execution of the orders passed by the Competent Authority.

(v) Learned Senior Counsel pointed out relevant provisions of the

Presidency Small Cause Courts Act, 1882 (“Presidency Act”). Section 27 provides for execution of the decree by issuing warrant for attachment of property of Judgment Debtor or his arrest. Section 28 contemplates sale of the attached property of the Judgment Debtor. Moreover, under the Chapter VII provisions are made in Section 41 to 46 for the recovery of possession of certain immovable properties and for recovery of license fee and rent. Section 43 of Presidency Act provides that as far as possible except otherwise provided in the Act, the Small Causes Court to follow the Code of Civil Procedure 1908 (“CPC”). Chapter VIII of the Presidency Act makes detailed provision from Section 50 to 68 for the execution of the distress warrants for recovery of arrears of rent/ fee. Section 57 to 62 and Section 64 to 68 provide for attachment and sale of the property. Similarly, in the Rules framed by the Hon’ble High Court, Rules 17-B, 18 to 29-A provide for the execution of the decree of the Small Causes Court. Importantly, Section 29A deals with the “unclaimed articles during the proceedings of the execution”. The Small Causes Court is authorized to sell the same by public auction after 5 years from the date of attachment.

(vi) In case of the Competent Authorities constituted for the area outside the original jurisdiction of the Bombay High Court, the provisions of the Provincial Small Cause Courts Act 1887 (“Provincial Act”) would be applicable. Section 17 makes CPC applicable to the Small Causes Court under the said Act. Moreover, by Maharashtra Amendment Chapter IV-AI was inserted for recovery of possession of certain immovable property and recovery of license fee and rent. Similarly, Section 27A deals with execution of distress warrants. The said provisions do empower the Small Causes Court under the Provincial Act to effect attachment and sale of the property of the Judgment Debtor. Therefore, provisions of CPC are also relevant for the execution of the Orders passed by such Competent Authorities situated outside the limits of original jurisdiction of Bombay High Court.

(vii) He submitted that as Section 43 of the Presidency Act and

Section 17 of the Provincial Act, makes reference to the CPC, it is necessary to consider relevant provisions regarding execution of decree contained therein. He pointed out Sections 36 to 72 of CPC. He pointed out elaborate procedure made in Order XXI of CPC regarding execution of decree.

(viii) He submitted that detailed provisions are made for the execution of the decree, for possession of immovable property and for the attachment and sale of the “unclaimed property of the Judgment Debtor” in Presidency Act and the Rules framed under it by the Hon’ble High Court, which are made applicable to the proceedings before the Competent Authority by operation of Section 43(5). Learned Senior Counsel submitted that it was not right for the Competent Authority to abdicate its duty to completely execute the decree and give relief to the decree holder. The Competent Authority should have considered Section 43(5) of the Rent Act and Section 9, 27, 28, 43, 64 to 68 of the Presidency Act and the Rules 17-B, 18 & 29-A of the Rules framed under the Presidency Act read with the provisions of Order 21 Rule 30 and Section 51 of the CPC before deciding the Application filed by the Petitioner.

(ix) He submitted that it is well settled legal position that when the legislature vests power with the authority to do a particular act then even in absence of any specific provision, the authority is vested with ancillary and incidental powers to do the act to achieve the object for which power has been conferred on the authority. He relied on Maxwell Interpretation of Statute (11th Edition), wherein at Page No.350 it has been observed that where an Act confers jurisdiction it impliedly grants power for doing all such acts or doing such actions which are necessary to its execution. Learned Senior Counsel to support this proposition has relied on the decisions of the Supreme Court in ITO v. M.K. Mohd. Kunhi 1, Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. 2 and the decision of this Court in Anandkumar Raghunath Ray v. State of Maharashtra 3.

(x) Learned Senior Counsel submitted that therefore, it is very clear that Section 45 of the Rent Act empowers the Competent Authority or its duly authorised officer to take possession from the person against whom order of eviction has been passed under Section 43 and possession has to be handed over to the Landlord/Applicant and for that purpose has all the powers. [VI] Submissions of Mr. Dixit, learned Counsel for the Petitioner:-

(i) The Petitioner has not been given possession of the entire flat and therefore, he is not able to enjoy the fruits of the Order dated 26th December 2014.

(ii) Although possession of the entire flat (excluding one bedroom)

(iii) The Order directing that the Respondent shall pay Rs.6500/- per month from 15th January 2013 to 14th July 2013 and double the amount of compensation i.e. Rs.13,000/- per month from 1 (1969) 71 ITR 815: 1968 SCC OnLine SC 71: AIR 1969 SC 430

3 1988 SCC OnLine Bom 358: 1988 ALLMR Online 650 15th July 2013 till possession is handed over to the Applicant i.e. till 18th April 2015 is also not complied with. Therefore, the impugned Order be quashed and set aside and relief as sought in said Misc. Application No.31 of 2019 be granted. [VII] Applicable provisions of law:- For deciding the point involved in the present Writ Petition i.e. the extent of power of the Competent Authority established under Section 40 of the Rent Act particularly in reference to execution of the Orders passed by the Competent Authority, it is necessary to see the scheme of the Rent Act in the context of Chapter V and Chapter VIII of the Rent Act, the relevant provisions of the Presidency Act along with Rules framed thereunder and the relevant provisions of the Provincial Act. [A] Relevant provisions of the Maharashtra Rent Control Act, 1999 (“Rent Act”) are as follows:-

(i) Chapter V is concerning special provisions for recovery of possession in cases covered by Section 23 and Section 24 of the Rent Act. (a) Section 23 is applicable when members of armed forces of the Union, scientists or their successor-ininterest entitled to recover possession of premises required for their occupation. (b) Section 24 is applicable when Landlord entitled to recover possession of premises given on licence on the expiry of the same. Relevant part of Section 24 is as follows:- “(1) Notwithstanding anything contained in this Act, a licensee in possession or occupation of premises given to him on licence for residence shall deliver possession of such premises to the landlord on expiry of the period of licence; and on the failure of the licensee to so deliver the possession of the licensed premises, a landlord shall be entitled to recover possession of such premises from a licensee, on the expiry of the period of licence, by making an application to the Competent Authority, and, the Competent Authority, on being satisfied that the period of licence has expired, shall pass an order for eviction of a licensee. (2) Any licensee who does not deliver possession of the premises to the landlord on expiry of the period of licence and continues to be in possession of the licensed premises till he is dispossessed by the Competent Authority shall be liable to pay damages at double the rate of the licence fee or charge of the premises fixed under the agreement of licence.”

(ii) Chapter VIII of the Rent Act consisting of Sections 39 to 52 provides summary disposal of certain applications. (a) Section 39 provides that provisions of the said Chapter have overriding effect. The said Section 39 reads as under:- “39. Provisions of this Chapter to have overriding effect. The provisions of this Chapter or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained elsewhere in the Act or in any other law for the time being in force.” (b) Section 40 is regarding appointment of Competent Authority.

(c) Section 41 defines Landlord for the purpose of

Chapter VIII, which reads as under:- “41. Definition of landlord for the purpose of Chapter VIII. For the purposes of this Chapter, landlord means a landlord who is,- (a) a person who has created a service tenancy in respect of his premises or a part thereof in favour of his employee under section 22; (b) a member of the armed forces of the Union or a scientist or a Government servant or a successor-in-interest, referred to in section 23; or

(c) a person who has given premises on licence for residence or a successor-in-interest referred to in section 24.”

(d) Section 42 inter alia provides that the form of the application for eviction of licensee under Section 24 would be as per Rules 14 and 15 of Order VI of the First Schedule to the CPC. (e) Section 43 prescribes a special procedure for disposal of such Application under Section 24 for the eviction of licensee. Section 43(5) makes it clear that the Competent Authority shall while holding an inquiry in proceeding to which Chapter VIII applies follow the practice and procedure of a Court of Small Causes. Section 43(5) reads as under: “43. Special procedure for disposal of applications … (5) The Competent Authority shall, while holding an inquiry in a proceeding to which this Chapter applies, follow the practice and procedure of a court of small causes, including the recording of evidence.” (f) Section 44 of the Rent Act provides that Order for the recovery of possession of any premises made by the Competent Authority is non-appealable, however, revision is competent before the State Government. (g) Section 45 of the Rent Act empowers Competent Authority to execute the eviction Order passed by the Competent Authority. Section 45 reads as under:- “45. Effect of refusal or failure to comply with order of eviction. If any person refuses or fails to comply with the order of eviction made under section 43 within thirty days of the date on which it has become final, the Competent Authority or any other officer duly authorised by the Competent Authority in this behalf, may evict that person from, and take possession of, the premises and deliver the same to the landlord and for that purpose, use such force as may be necessary.” (h) Section 47 provides for bar of jurisdiction, which reads as under: “47. Bar of jurisdiction Save as otherwise expressly provided in this Act, no civil court shall have jurisdiction in respect of any matter which the Competent Authority or the State Government or an officer authorised by it is empowered by or under this Act, to decide, and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power so conferred on the Competent Authority or the State Government or such Officer.”

(i) Section 49 makes the “Competent Authority” to be a “public servant”. (j) Section 50 provides that “the proceedings before the Competent Authority shall be treated as judicial proceedings.” (k) Under Section 51 the Competent Authority is deemed to be “a Civil Court” for the purpose of Section 345 and 346 of Criminal Procedure Code. [B] Relevant provisions of the Presidency Small Cause Courts Act, 1882 (“Presidency Act”) are as follows:-

(i) As noted herein above Section 43(5) of the Rent Act provides that the Competent Authority shall follow the practice and procedure of a Court of Small Causes, including the recording of evidence.

(ii) The Presidency Act is enacted to consolidate and amend the law relating to the Courts of Small Causes established in the Presidency Towns. The Provincial Act is an act to consolidate and amend the law relating to Courts of Small Causes established beyond the Presidency Towns.

(iii) Section 4 of the Presidency Act defines the Small Cause Court means inter alia the Court of Small Causes constituted under this Act in the town of Bombay.

(iv) Section 9 of the Presidency Act provides that the High Court may, from time to time, by rules having the force of law prescribe the procedure to be followed and the practice to be observed by the Small Cause Court. Said Section 9 of the Presidency Act is reproduced herein below:- “9. Procedure and practice of Small Cause Court.—(1) The High Court may, from time to time, by rules having the force of law,— (a) prescribe the procedure to be followed and the practice to be observed by the Small Cause Court either in supersession of or in addition to any provisions which were prescribed with respect to the procedure or practice of the Small Cause Court on or before the thirty-first day of December, 1894, in or under this Act or any other enactment for the time being in force; and (aa) empower the Registrar to hear and dispose of undefended suits and interlocutory applications or matters; and (b) cancel or vary any such rule or rules. Rules made under this section may provide, among other matters, for the exercise by one or more of the Judges of the Small Cause Court of any powers conferred on the Small Cause Court by this Act or any other enactment for the time being in force. (2) The law, and any rules and declarations made, or purporting to be made, thereunder, with respect to procedure or practice, in force or treated as in force in the Small Cause Court on the thirty-first day of December, 1894, shall be in force, unless and until cancelled or varied by rules made by the High Court under this section.”

(v) Section 17 of the Presidency Act provides that the local limits of the jurisdiction of each of the Small Cause Courts shall be the local limits for the time being of the Ordinary Original Civil Jurisdiction of the High Court.

(vi) Chapter V of the Presidency Act deals with the procedure in

Suits before the Small Causes Court. Section 27 provides for execution of the decree by issuing warrant for attachment of property of Judgment Debtor or his arrest. Section 28 contemplates sale of the attached property of the Judgment Debtor.

(vii) Under Chapter VII of the Presidency Act provisions are made in

Sections 41 to 46 for the recovery of possession of the certain immovable properties and for recovery of license fee and rent. Section 43 of Presidency Act provides that as far as possible except otherwise provided in the Act, the Small Causes Court to follow the procedure prescribed by CPC. Section 48 provides that in all proceedings under this Chapter VII, the Small Cause Court shall, as far as may be and except as herein otherwise provided, follow the procedure prescribed for a Court of first instance by the Code of Civil Procedure.

(viii) Chapter VIII of the Presidency Act makes detailed provisions from Section 50 to 68 for the execution of the distress warrants, for recovery of arrears of rent/fee. Section 57 to 62 and Section 64 to 68 provide for attachment and sale of the property. Thus, Presidency Act provides that as far as possible and except as otherwise provided in Presidency Act the Small Causes Court shall follow the procedure prescribed under CPC. [C] Relevant provisions of the Presidency Small Cause Court Rules:-

(i) The Bombay High Court under Section 9 of the Presidency Act has framed Rules i.e. Presidency Small Cause Court Rules (“Presidency Rules”).

(ii) Rule 1(2) of the Presidency Rules is very relevant and is as under:- “1.(2) The provisions of the Code of Civil Procedure, 1908 (Act V of 1908) as modified from time to time in the application to the State of Maharashtra with it’s first Schedule as amended by the High Court of Judicature at Bombay under section 122 of the said Code from time to time shall be applied immediately to the Small Cause Court and the procedure prescribed thereby shall be the procedure to be followed in said Court in all suits cognizable by it, except where such procedure is inconsistent with the procedure prescribed by any specific provisions of the Presidency Small Cause Courts Act, 1882 and as far as Money Suits are concerned subject to the additions, alterations and modifications applicable thereto specified in the schedule annexed.”

(iii) Rules 17-B, 18 to 29-A of the Presidency Rules provide for the execution of the decree of the Small Causes Court. Rule 29A deals with the “unclaimed articles during the proceedings of the same by public auction after 5 years from the date of attachment. The said Rule 29-A is very significant and reads as under:- “29A. Procedure for the disposal of unclaimed articles including the valuables in the custody of the Court.—

(i) Any article, including a valuable articles, which has been attached in execution of a decree, or seized during the process of execution of decree, and has been lying unclaimed for a period of 5 years or more from the date of its attachment (and relating to which there are no pending proceedings) as may be sold by public auction.

(ii) The Court shall cause a proclamation to be issued 30 days in advance in that behalf in the language of the Court. The said proclamation shall mention the reserve/upset price of the article/s, as has been assessed by a Government Valuer. It shall state the time and place of the intended sale together with every particular of such article/s which the Court considers material for an intending purchaser to know in order to judge the nature and value of the property.

(iii) A common auction sale may, after obtaining the directions of the Chief Judge in this behalf, be held for the sale of more than on such article.

(iv) Every intending purchaser shall deposit a sum of

(v) The auction sale shall be held by such officer, not below the rank of Deputy Registrar, as may be authorised by the Chief Judge.

(vi) The Officer so authorised shall note down all the bids received at the auction sale and shall place the same before the Chief Judge for consideration. (vii) (a) The Chief Judge shall accept the highest bid, unless it is of an amount of less than the reserve/upset price of the article/s in which case he shall order a fresh auction sales of that article/s. (b) The Chief Judge may cancel the auction sale for reasons to be recorded, in brief, but the auction purchaser/s shall not be entitled to ask the reasons therefor.

(c) If the Chief Judge accepts the highest bid as aforesaid, the auction purchaser/s shall deposit in Court within 3 days of being given intimation in this behalf, time being of the essence, an amount which along with that already deposited make up 1/4th of the sale price, and (if) he or they fall to deposit such balance amount within the time aforesaid, the Chief Judge shall cancel the auction sale, (forfeit the initial deposit Rs. 2,000/--) and shall order a fresh auction sale for that article/s.

(d) The auction purchaser/s shall deposit the balance of the sale proceeds in Court within 20 days of the aforesaid intimation and if he or they fail to do so the Chief Judge shall cancel the auction sale in respect of the article/s for which the sale proceeds are not so deposited (forfeit the already deposited amounts) and shall direct a fresh auction sale in that behalf. (e) Where a fresh auction sale of an article/s is ordered under clause (d) above the amounts there against already deposited shall stand forfeited to Government and to be utilised for the conduct off sales under this Heading.

(viii) After the auction purchaser/s pay the full amount of the sale proceeds in accordance with the above Rules, the Chief Judge shall confirm the auction sale, and shall cause to be delivered the article/s sold to the purchaser/s in the condition in which it or they were sold.

(ix) If the auction sale is not held or is cancelled, except as under sub-rule (vii) clause (c) and (d) the Chief Judge shall order the refund of the amounts of deposit made by intending purchaser/s, but without any interest. (x) (a) (The forfeited amounts, if any, as also) the sale proceeds of the auction sale shall be credited to Government. (b) The Chief Judge while forwarding the amount of sale proceeds to Government shall send a statement showing the details of the article/s sold in the auction sale, such as description, value made by the Government valuer, the price fetched in the auction, alongwith the challan.

(c) A separate register in respect of auction sales held under this heading shall be maintained wherein all details of the auction sale/s shall be entered including those mentioned in clause (b) above.” [D] Relevant provisions of the Provincial Small Cause Courts Act, 1887 are as follows:-

(i) Section 4 of the Provincial Act defines Court of Small Causes means a Court of Small Causes constituted under the Provincial Act, and includes any person exercising jurisdiction under the Provincial Act in any such Court.

(ii) Section 5 of the Provincial Act is as follows:- “5. Establishment of Courts of Small Causes.—(1) The State Government may, by order in writing establish a Court of Small Causes at any place within the territories under its administration beyond the local limits for the time being of the ordinary original civil jurisdiction of a High Court of Judicature established in a Presidency town. (2) The local limits of the jurisdiction of the Court of Small Causes shall be such as the State Government may define, and the Court may be held at such place or places within those limits as the State Government may appoint.” Thus, in case of the Competent Authorities constituted for the area outside the original jurisdiction of the Bombay High Court, the provisions of the Provincial Act are applicable.

(iii) Section 17 of the Provincial Act makes CPC applicable to the

Small Causes Court under the said Act. Said Section 17 of the Provincial Act is very significant and is as under:-

(iv) By Maharashtra Amendment, vide Maharashtra Act No. XXIV of

1984, Chapter IV-AI was inserted for recovery of possession of certain immovable property and recovery of license fee and rent. Section 27A to 27R deals with execution of distress warrants. The said provisions do empower the Small Causes Court under Provincial Act to effect attachment and sale of the property of the Judgment Debtor. [E] Relevant provisions of the Code of Civil Procedure, 1908 are as follows:-

(i) The above provisions of Rent Act, Presidency Act, Rules framed under the Presidency Act, and Provincial Act, make it clear that the provisions of CPC will apply to the proceedings. Therefore, the provisions of CPC are also relevant for the execution of the Orders passed by such Competent Authorities.

(ii) At the outset, it is necessary to consider Section 7 and 8 of the

CPC which provide that certain provisions of CPC will not apply to the Courts constituted under the Provincial Small Cause Courts Act, 1887 and Presidency Small Cause Courts Act, 1882. The said Section 7 and 8 read as under:- “7. Provincial Small Cause Courts.—The following provisions shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 (9 of 1887), [or under the Berar Small Cause Courts Law, 1905], or to Courts exercising the jurisdiction of a Court of Small Causes [under the said Act or Law], [or to Courts in [any part of India to which the said Act does not extend] exercising a corresponding jurisdiction], that is to say,— (a) so much of the body of the Code as relates to—

(i) suits excepted from the cognizance of a Court of

(ii) the execution of decrees in such suits;

(iii) the execution of decrees against immovable property; and

(b) the following sections, that is to say,— section 9, sections 91 and 92, sections 94 and 95 [so far as they authorize or relate to]—

(i) orders for the attachment of immovable property,

(ii) injunctions,

(iii) the appointment of a receiver of immovable property, or

(iv) the interlocutory orders to in clause (e) of section 94], and sections 96 to 112 and 115.

8. Presidency Small Cause Courts.—Save as provided in sections 24, 38 to 41, 75, clauses (a), (b) and (c), 76, [77, 157 and 158], and by the Presidency Small Cause Courts Act, 1882 (15 of 1882), the provisions in the body of this Code shall not extend to any suit or proceeding in any Court of Small Causes established in the towns of Calcutta, Madras and Bombay: [Provided that— (1) the High Courts of Judicature at Fort William, Madras and Bombay, as the case may be, may from time to time, by notification in the Official Gazette, direct that any such provisions not inconsistent with the express provisions of the Presidency Small Cause Courts Act, 1882 (15 of 1882), and with such modifications and adaptations as may be specified in the notification, shall extend to suits or proceedings or any class of suits or proceedings in such Court; (2) all rules heretofore made by any of the said High Courts under section 9 of the Presidency Small Cause Courts Act, 1882 (15 of 1882), shall be deemed to have been validly made.] ”

(iii) Part II of the CPC, which include provisions of Section 36 to 72

(iv) Section 51 deals with the various powers of the executing court.

These powers include the execution of Decrees: (a) By delivery of any specific property (b) by attachment and sale of the property

(c) by the arrest and detention of judicial detention in prison and

(d) by appointment of receiver and

(v) Sections 60 to 67 deal with attachment and sale of property in execution of Decree.

(vi) Order XXI of the CPC deals with the execution of Decrees and

Orders. Rule 30 onwards provide for modes of execution of Decree and Order. Rule 35 deals with execution of Decree by delivery of possession of a specific immovable property. The Decree for payment of money is to be executed as per Rule 30 by detaining the Judgment Debtor in Civil Prison or by attachment and Sale of his property or by both. The Decree for immovable property is to be executed as per Rule 35 which involve breaking open of the locks or door or any other act necessary for putting the Decree Holder in possession. REASONING: [I] Areas covered by the Presidency Act and Provincial Act for the purpose of procedure applicable to the Competent Authorities established under Section 40 of the Rent Act:- An analysis of the above relevant provisions establishes following aspects:- (a) Chapter V of the Rent Act is concerning special provisions for recovery of possession in cases covered by Section 23 and Section 24 of the Rent Act. Section 23 is applicable when members of armed forces of the Union, scientists or their successor-in-interest entitled to recover possession of premises required for their occupation. Section 24 is applicable when Landlord entitled to recover possession of premises given on licence on the expiry of the same. (b) Section 24 of the Rent Act provides that a licensee in possession or occupation of premises given to him on licence for residence shall deliver possession of such premises to the landlord on expiry of the period of licence and on the failure of the licensee to so deliver the possession of the licensed premises, a landlord shall be entitled to recover possession of such premises from a licensee, on the expiry of the period of licence, by making an application to the Competent Authority. Any licensee who does not deliver possession of the premises to the landlord on expiry of the period of licence and continues to be in possession of the licensed premises till he is dispossessed by the Competent Authority shall be liable to pay damages at double the rate of the licence fee or charge of the premises fixed under the agreement of licence.

(c) Thus, reading of Section 24 of the Rent Act makes it clear that

Order directing eviction of licensed premises and in case of failure to comply with the same further Order to pay the damages at double the rate of the licence fee is part of the Eviction Order.

(d) Section 43 of the Rent Act prescribes a special procedure for disposal of Application filed under Section 24 for the eviction of licensee. As per Section 43(5), the Competent Authority shall while holding an inquiry in proceeding to which Chapter VIII applies follow the practice and procedure of a Court of Small Causes. (e) Section 45 of the Rent Act empowers Competent Authority to execute the eviction Order passed by the Competent Authority. Section 45 provides that if any person refuses or fails to comply with the order of eviction made under section 43 within thirty days of the date on which it has become final, the Competent Authority or any other officer duly authorised by the Competent Authority in this behalf, may evict that person from, and take possession of, the premises and deliver the same to the landlord and for that purpose, use such force as may be necessary. As already noted herein above, Order directing eviction of licensed premises and in case of failure to comply with the same further Order to pay the damages at double the rate of the licence fee is part of the eviction Order of the concerned licensed premises. (f) As noted herein above Section 43(5) of the Rent Act provides that the Competent Authority shall follow the practice and procedure of a Court of Small Causes, including the recording of evidence. The Presidency Act is enacted to consolidate and amend the law relating to the Courts of Small Causes established in the Presidency Towns. Section 4 of the Presidency Act defines “the Small Cause Court” means the Court of Small Causes constituted under the Presidency Act inter alia in the town of Bombay. Section 4 of the Provincial Act defines “Court of Small Causes” means a Court of Small Causes constituted under the Provincial Act. (g) Section 9 of the Presidency Act provides that the High Court may, from time to time, by rules having the force of law prescribe the procedure to be followed and the practice to be observed by the Small Cause Court. (h) Section 17 of the Presidency Act provides that the local limits of the jurisdiction of each of the Small Cause Courts shall be the local limits for the time being of the Ordinary Original Civil Jurisdiction of the High Court. Section 5 of the Provincial Act provides that the State Government may establish a Court of Small Causes at any place within the territories under its administration beyond the local limits for the time being of the Ordinary Original Civil Jurisdiction of a High Court of Judicature established in a Presidency Town. Thus, in case of the Competent Authorities constituted for the area outside the original jurisdiction of the Bombay High Court, the provisions of the Provincial Act are applicable.

(i) As noted herein above, Section 43(5) makes it clear that the

Competent Authority shall while holding an inquiry in proceeding to which Chapter VIII applies follow the practice and procedure of a Court of Small Causes. Provisions of the Presidency Act are applicable to the Court of Small Causes established in the Presidency Town and provisions of the Provincial Act are applicable to the Court of Small Causes established for the area outside the Original Jurisdiction of the Bombay High Court the procedure as provided under the Provincial Act will apply. (j) Thus, the Competent Authorities, appointed under Section 40 of the Rent Act, which are established for the local limits for the time being of the Ordinary Original Civil Jurisdiction of the High Court the procedure as provided under the Presidency Act will apply and other Competent Authorities which are established for the area outside the Original Jurisdiction of the Bombay High Court the procedure as provided under the Provincial Act will apply. [II] Procedure applicable to the Competent Authority established for the local limits of the area covered by the Ordinary Original Civil Jurisdiction of the High Court:- An analysis of the relevant provisions of the Rent Act, Presidency Act and Presidency Rules establishes following aspects:- (a) Section 27 of the Presidency Act provides for execution of the decree by issuing warrant for attachment of property of Judgment Debtor or his arrest. Section 28 contemplates sale of the attached property of the Judgment Debtor. Under Chapter VII of the Presidency Act provisions are made in Section 41 to 46 for the recovery of possession of the certain immovable properties and for recovery of license fee and rent. Section 43 of Presidency Act provides that as far as possible except otherwise provided in the Act, the Small Causes Court to follow the procedure prescribed by CPC. Section 48 provides that in all proceedings under Chapter VII, the Small Cause Court shall, as far as may be and except as herein otherwise provided, follow the procedure prescribed for a Court of first instance by the CPC. Chapter VIII of the Presidency Act makes detailed provisions from Sections 50 to 68 for the execution of the distress warrants, for recovery of arrears of rent/fee. Sections 57 to 62 and Sections 64 to 68 provide for attachment and sale of the property. (b) Rule 1(2) of the Presidency Rules provides that the provisions of the CPC as modified from time to time in the application to the State of Maharashtra shall be applied immediately to the Small Cause Court and the procedure prescribed thereby shall be the procedure to be followed in said Court in all suits cognizable by it, except where such procedure is inconsistent with the procedure prescribed by any specific provisions of the Presidency Act.

(c) Rules 17-B, 18 to 29-A of the Presidency Rules provide for the execution of the decree of the Small Causes Court. Rule 29A deals with the “unclaimed articles during the proceedings of the same by public auction after 5 years from the date of attachment by following the procedure provided in said Rule 29-A.

(d) As per Section 8 of the CPC, save as provided in sections 24, 38 to 41, 75, clauses (a), (b) and (c), 76, 77, 157, 158 and by the Presidency Act, the provisions of CPC shall not extend to any suit or proceeding in any Court of Small Causes established in the town of Bombay, provided that the High Court of Judicature at Bombay, may from time to time, by notification in the Official Gazette, direct that any such provisions not inconsistent with the express provisions of the Presidency Act and with such modifications and adaptations as may be specified in the notification, shall extend to suits or proceedings or any class of suits or proceedings in such Court. (e) As already noted herein above, Rule 1(2) of the Presidency Rules framed by the Bombay High Court under Section 9 of the Presidency Act provides that the provisions of CPC as modified from time to time shall be applied to the Small Causes Court. Thus, it is clear that insofar as the Competent Authorities established for the local limits for the time being of the Ordinary Original Civil Jurisdiction of the High Court, the provisions of CPC as contemplated under the provisions of the Presidency Act will apply to the proceedings filed before such Competent Authorities including execution proceedings. [III] Procedure applicable to the Competent Authorities constituted for the areas outside the original jurisdiction of the Bombay High Court:- An analysis of the relevant provisions of the Provincial Act and CPC establishes following aspects:-

(i) Section 17 of the Provincial Act provides that the procedure prescribed in the CPC, shall save insofar as is otherwise provided by that Code or by this Act, be the procedure followed in a Court of Small Cause in all suits cognizable by it, and in all proceedings arising out of such suits.

(ii) Section 7 of the CPC inter alia provides that the provisions of

CPC relating to execution of decrees, execution of decrees against immovable property and orders for the attachment of immovable property shall not extend to Courts constituted under the Provincial Act.

(iii) By Maharashtra Amendment, vide Maharashtra Act No. XXIV of

1984, Chapter IV-AI was inserted for recovery of possession of certain immovable property and recovery of license fee and rent. Section 27A to Section 27R deals with execution of distress warrants. The said provisions do empower the Small Causes Court under Provincial Act to effect attachment and sale of the property of the Judgment Debtor. Thus, it is clear that as far as the Competent Authorities established under Section 40 of the Rent Act constituted for the areas outside the original jurisdiction of the Bombay High Court, the procedure as provided in the Provincial Act including Section 27A to 27R (Maharashtra Amendment) will be applicable. [IV] The Competent Authority has all the ancillary and complementary powers in order to give full effect to the powers under Section 45 of the Rent Act.

(i) Mr. S. M. Gorwadkar, learned Senior Counsel is right in contending that the Competent Authority has all the ancillary and complementary powers in order to give full effect to the powers under Section 45 of the Rent Act.

(ii) The Supreme Court in the matter of ITO (Supra), has held that grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective. The Supreme Court in the said decision has held as follows:- “6. … It is a firmly established rule that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective (Sutherland Statutory Construction, 3rd Edn., Articles 5401 and 5402). The powers which have been conferred by Section 254 on the Appellate Tribunal with widest possible amplitude must carry with them by necessary implication all powers and duties incidental and necessary to make the exercise of those powers fully effective. In Domat's Civil Law Cushing's Edn., Vol. 1 at p. 88, it has been stated: “It is the duty of the Judges to apply the laws, not only to what appears to be regulated by their express dispositions, but to all the cases where a just application of them may be made, and which appear to be comprehended either within the consequences that may be gathered from it.”

7. Maxwell on Interpretation of Statutes, 11th Edn., contains a statement at p. 350 that “where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. Cui jurisdictio data est, ea quoqe concessa esse videntur, sine quibus jurisdictio explicari non potuit”. An instance is given based on Ex parte Martin [(1879) 4 QBD 212, 491] that “where an inferior court is empowered to grant an injunction, the power of punishing disobedience to it by commitment is impliedly conveyed by the enactment, for the power would be useless if it could not be enforced”.”

(iii) Thus, it is settled legal position that where an Act confers a jurisdiction, it impliedly also grants power of doing all such acts, or employing such means, as are essentially necessary to its execution (Maxwell 11th Edition, page 350).

(iv) Therefore, Mr. S. M. Gorwadkar, Senior Counsel is right in submitting that as Section 45 of the Rent Act gives power to the Competent Authority or its authorised officer to evict the person against whom order under Section 43 has been passed and take possession of the premises and deliver the same to the Landlord and for that purpose use such powers as may be necessary. Thus, the said power impliedly empowers the Competent Authority or its authorised officers to sale the goods. Although there are some restrictions on the powers of Small Causes Courts established under the Presidency Act and Provincial Act in view of provision of Sections 7 and 8 of CPC, Section 45 of the Rent Act gives power to the Competent Authority or its authorised officer to evict the person against whom order under Section 43 has been passed and take possession of the premises and deliver the same to the Landlord and for that purpose use such powers as may be necessary. Thus, all powers as per the provisions of CPC can be used by the Competent Authorities for the purpose of fulfilling the mandate granted by Section 45 of the Rent Act. Such interpretation is necessary as under Section 47 of the Rent Act as exclusive jurisdiction is with the Competent Authorities for cases covered under Chapter VIII of the Rent Act. [V] Whether the finding recorded by the learned Competent Authority that the eviction Order is executed and there is no provision to re-execute the decree is correct ?

(i) In the present case, admittedly, although possession of the suit premises has been recovered from the Respondent No.1, the goods belonging to Respondent No.1 are kept in one bedroom and the said bedroom has been sealed. Therefore, it is clear that the said premises which is consisting of one hall, one kitchen and two bedrooms is only partly handed over to the Petitioner as possession of only one bedroom, kitchen and a hall has been delivered and in one bedroom the articles belonging to the Respondent No.1 are kept and the same has been sealed.

(ii) Thus, it is very clear that the Competent Authority has not completely executed the order as required under Section 45 of the said Act. Section 45 of the said Act provides that if any person refuses or fails to comply with the order of eviction made under Section 43 within thirty days of the date on which it has become final, the Competent Authority or any other officer duly authorised by the Competent Authority in this behalf, may evict that person from, and take possession of, the premises and deliver the same to the Landlord and for that purpose, use such force as may be necessary.

(iii) In this case, as noted herein above the order of eviction is partly executed in the sense possession of one bed room has not been delivered to the Petitioner. As per Section 45 of the Rent Act, the Competent Authority continues to have the power till the eviction order is completely executed by delivery of the entire premises in the possession of the Landlord.

(iv) As per settled legal position, number of execution applications can be filed till the decree / Order is executed completely, subject to the provisions of law.

(v) Section 43(5) of the Rent Act provides that the Competent

Authority shall, while holding an inquiry in a proceeding to which the said Chapter applies, follow the practice and procedure of a court of small causes, including the recording of evidence. Thus, for the disposal of attached unclaimed goods of the Respondent No.1 which have been stored in said one bed room of suit premises, the Competent Authority has all the powers which the court of small causes possess in order to give full effect to the eviction order while exercising the power under Section 45 of the Rent Act. [VI] Legality of the impugned Order in view of above discussion:-

(i) In this case, the Petitioner has sought relief of the sale of attached goods of the licensee which have been kept in one bed room of the suit premises. The said prayer has been rejected by the Competent Authority on the ground that the Act do not specify such powers expressly. However, it is required to be noted that Sub Section 5 of Section 43 clearly specifies that the Competent Authority shall, while holding an inquiry in a proceeding to which this Chapter applies, follow the practice and procedure of a court of small causes, including the recording of evidence. As already discussed in detail herein above the Competent Authority has got said power under the provisions of the Presidency Act and Provincial Act as well as under CPC. Thus, the observations in the impugned Order to the effect that there is no provision in Chapter VIII of the Act to sale, disposed off or to remove the sealed articles, which are seized and sealed during the execution proceeding are contrary to the provisions of law.

(ii) It is very clear that Section 45 empowers the Competent

Authority to take possession of the suit premises and hand over the same to the Landlord. The premises which is contemplated under Section 45 is the complete premises and not part of the premises. As the Competent Authority has admittedly kept the goods of the Respondent No.1 in one bedroom and sealed the same and therefore it is very clear that the Competent Authority has not delivered possession of the entire subject premises to the Petitioner. Therefore, the Competent Authority is not right in observing that the eviction order is executed and therefore, there is no provision to re-execute the decree. In fact, it is well settled that the decree can be executed on number of occasions, till the decree is executed completely if the application is within limitation.

(iii) In this particular case, admittedly, the possession of the entire premises is not handed over to the Landlord. In any case, the power under Section 45 of the Rent Act makes it very clear that Section 45 empowers the Competent Authority or the authorised officer to take possession of the premises and deliver the same to the Landlord. By no stretch of imagination, it can be said that the delivery of part of the premises can be the delivery of the premises as contemplated under Section 45 of the Rent Act. Therefore, the observations of the Competent Authority to the effect that as the decree has already been executed it cannot be re-executed is not legal. It is very clear that the order is not completely executed as the Competent Authority has put the seal on one bedroom where goods of Respondent No.1 are lying since 18th April 2015. Thus, it cannot be said that the possession of the entire premises is handed over. [VIII] The Competent Authority has relied the decision in the case of Prakash H. Jain v. Marie Fernandes 4. In the said decision of the Supreme Court, the Supreme Court was considering the nature of the Order by which an application seeking grant to leave to defend the eviction proceedings has been filed belatedly and the delay has been condoned by the Competent Authority. The High Court set aside the said Order. The Supreme Court while confirming the said Order of the High Court has observed that provisions of the delay condonation as provided under the Limitation Act, 1963 cannot be made applicable to the Competent Authorities. However, in the present case, Section 45 gives specific power to the Competent Authority to evict the person and take possession of the premises and deliver the same to the landlord and for that purpose use such force as may be necessary. Therefore, the observations in Prakash H. Jain (Supra) are not applicable to the present case. [IX] Conclusions:- In view of the above reasoning, following conclusions are recorded. [I] Reading of Section 24 of the Rent Act makes it clear that Order directing eviction of licensed premises and in case of failure to comply with the same further Order to pay the damages at double the rate of the licence fee is part of the eviction Order. [II] The Competent Authorities, appointed under Section 40 of the Rent Act, which are established for the local limits for the time being of the Ordinary Original Civil Jurisdiction of the High Court of Bombay the procedure as provided under the Presidency Act will apply and to other Competent Authorities which are established for the area outside the original jurisdiction of the Bombay High Court the procedure as provided under the Provincial Act will apply. [III] Procedure applicable to the Competent Authorities established for the local limits of the Ordinary Original Civil Jurisdiction of High Court:-

(i) Procedure as provided in CPC in view of Rule 1(2) of the Presidency Rules. Elaborate provisions are made in CPC for execution of decree/Order.

(ii) Elaborate provisions are made in Sections 27, 28, 41

(iii) Rules 17-B, 18 to 29-A of the Presidency Rules provide for the execution of the decree of the Small Causes Court. Rule 29A deals with the “unclaimed articles during the proceedings of the execution”. The Small Causes Court is authorized to sell the same by public auction after 5 years from the date of attachment by following the procedure provided in said Rule 29-A. [IV] As far as the Competent Authorities established under Section 40 of the Rent Act constituted for the areas outside the original jurisdiction of the Bombay High Court, the procedure as provided in the Provincial Act including Section 27A to 27R (Maharashtra Amendment) will be applicable. [V] The Competent Authorities established under Section 40 of the Rent Act have all the ancillary and complementary powers in order to give full effect to the powers under Section 45 of the Rent Act and for that purpose provisions of CPC are also applicable. [X] Therefore, as a result of above discussion, following Order is passed:-

(i) Impugned Order dated 10th January 2020, passed by the learned Competent Authority, Rent Control Act, Konkan Division, Mumbai in Misc. Application No.31 of 2019 in Eviction Application No.59 of 2014 is quashed and set aside.

(ii) Accordingly, said Misc. Application No.31 of 2019 is restored to the file of the learned Competent Authority, Rent Control Act, Konkan Division, Mumbai.

(iii) The learned Competent Authority to dispose of said Misc.

4. The Writ Petition is disposed of in above terms with no order as to costs.

5. This Court places on record its gratitude to Mr. S. M. Gorwadkar, learned Amicus Curiae for assisting the Court. [MADHAV J. JAMDAR, J.]