Kausalyabai Wd/o Natthu Paraskar and others v. Ramchandra s/o Satbaji Patekar
1995-01-18
R.M.LODHA
body1995
DigiLaw.ai
JUDGMENT - R.M. LODHA, J. :---By this petition filed under Articles 226 and 227 of the Constitution of India the original petitioner Nathu (since deceased and now represented by the legal representatives) has challenged the legality and correctness of the order dated 21-6-1989 (Annexure H) passed by the Rent Controller, Nagpur suo motu revoking previous orders dated 5-11-1988 and 2-5-1989. 2. The learned Counsel for the petitioners contention is that the Rent Controller has no jurisdiction under the C.P. Berar Letting of Houses and Rent Control Order 1949 (hereinafter referred to as the Rent Control Order, 1949), to review his order suo motu or otherwise passed under the Rent Control Order, 1949. 3. The facts in brief leading to the present litigation are that the original petitioner Nathu Paraskar filed an application before the Rent Controller, Nagpur seeking permission to issue quit notice to the non-applicant Shri Ramchandra under Clause 13(3)(vi) of the Rent Control Order, 1949. It was averred by the applicant (hereinafter referred to as the landlord) that he was owner and landlord of the house bearing Corporation House No. 1242/18/042, Plot No. 18 of Rajabaksha lay-out, ward No. 9, Nagpur, after purchase of that property from one Smt. Shakuntalabai wd/o Yashwantrao Waghmare by registered sale-deed dated 2-6-1988 and the non-applicant was the tenant. The landlord averred in the application that he had a large family consisting of 4 elder sons and one daughters daughter and the accommodation available to them was not sufficient for the family and for his bona fide occupation. The premises in occupation with the tenant was described by the landlord in his application in para 3 which comprised of 3 rooms. 4. This application under Clause 13(3)(vi) of the Rent Control Order was filed by the petitioner before the Rent Controller on 27-9-1988 and notice was issued to the tenant returnable on 27-10-1988. Though service was effected on the tenant before 27-10-1988, he did not choose to appear before the Rent Controller on the date fixed and the Rent Controller fixed the next date of hearing on 31-10-1988. On that day the landlord led evidence by way of affidavit and the matter was posted for orders on 5-11-1988. The Rent Controller, Nagpur allowed the application filed by the landlord and granted permission to terminate the tenancy of the tenant under Clause 13(3)(vi) of the Rent Control Order 1949. 5.
On that day the landlord led evidence by way of affidavit and the matter was posted for orders on 5-11-1988. The Rent Controller, Nagpur allowed the application filed by the landlord and granted permission to terminate the tenancy of the tenant under Clause 13(3)(vi) of the Rent Control Order 1949. 5. On that very day i.e. on 5-11-1988 when the ex-parte order was passed by the Rent Controller granting permission to the landlord to terminate the tenancy of the tenant under Clause 13(3)(vi) of the Rent Control Order, 1949, the tenant moved an application before the Rent Controller, Nagpur for setting aside ex-parte order dated 5-11-1988. It was submitted in that application that 5-11-1988 was a second chance for filing the written statement and on that day the ex-parte order was passed and, therefore, prayed for setting aside ex-parte order dated 5-11-1988. Setting aside of ex-parte order was opposed by the landlord by filing reply thereto and the Rent Controller, Nagpur vide its order dated 2-5-1989 rejected the application filed by the tenant for setting aside the ex-parte order dated 5-11-1989. While passing the order dated 2-5-1989 the Rent Controller observed that the tenant has failed to explain sufficient reasons in his application for setting aside the ex-parte order. The Rent Controller also observed that neither the application was supported by any affidavit nor cogent reasons showing that he was prevented by sufficient cause in not filing the written statement or his appearance before the Rent controller on 5-11-1988 or 27-10-1988 have been made in the application. 6. It appears that after the order was passed, by the Rent Controller on 2-5-1989 rejecting the application filed by the tenant for setting aside ex-parte order, the Rent Controller suo motu took up the matter and passed the impugned order dated 21-6-1989 after the Counsel for tenant contacted him. 7. By the order dated 21-6-1989 the Rent Controller, Nagpur, for the reasons recorded therein recalled his order passed on 5-11-1988, whereby the ex-parte order was passed permitting the landlord to issue quit notice under Clause 13(3)(vi) of the Rent Control Order 1949 and also recalled the order dated 2-5-1989, whereby the application filed by tenant for setting aside the ex-parte order was rejected and allowed the tenant to file written statement and fixed the case for evidence on 13-7-1989.
Merits of the reasons given in the order dated 21-6-1989 would be required to be gone into only if it is shown that the Rent Controller had jurisdiction to review his orders passed on 5-11-1988 and 2-5-1989. It is well settled that the review is the creature of the Statute and quasi judicial authority or any such authority or tribunal does not remain in seisin of the matter once it has been decided unless power of review is conferred on such authority. Even on the justifiable ground unless power of review is conferred on the authority under the law the order once passed cannot be reviewed. Power of review is not inherent. Rent Control Order, 1949 does not provide any power on the Rent Controller to review its order on any ground whatsoever. Clause 21(1) of the Rent Control Order, 1949 provides for filing of an appeal by an aggrieved person before the Collector against the order of Rent Controller within 15 days from the date of communication of such order and sub-clause 2(a) of Clause 21 of the Rent Control Order, 1949, empowers Collector with appellate authority to review its own order or the order passed by any of his predecessors in office. Thus it is clear that though power of review is given under the Rent Control Order to the appellate authority, viz., the Collector, no such power is conferred on the Rent Controller. Since the Rent Controller had no power of review, it was not open to the Rent Controller, Nagpur to review and recall his orders passed on 5-11-1988 and 2-5-1989 even if some error or mistake crept in, in the orders passed by him. If any error or mistake has crept in the order of the Rent Controller, it was subject to correction by the appellate authority and not by the Rent Controller himself. The learned Counsel for the respondent conceded that there is no power of review under the Rent Control Order, 1949, conferred on the Rent Controller and he has not been able to show any provision under which the Rent Controller could have exercised the power of review, even if there were valid reasons for the review of orders dated 5-11-1988 and 2-5-1989 in the absence of such power. The order passed by the Rent Controller on 21-6-1989 reviewing its orders dated 5-11-1988 and 2-5-1989 are without jurisdiction and cannot be sustained.
The order passed by the Rent Controller on 21-6-1989 reviewing its orders dated 5-11-1988 and 2-5-1989 are without jurisdiction and cannot be sustained. 8. Consequently this writ petition deserves to be allowed and it is hereby allowed and the order passed by the Rent Controller dated 21-6-1989 (Annexure H) is quashed and set aside. Rule is made absolute in the aforesaid terms. No order as to costs. Rule made absolute. *****