Girish Kumar Shrivastava v. Punjab National Bank, Satna
2002-11-27
S.P.KHARE
body2002
DigiLaw.ai
ORDER 1. This is a revision by the applicant under section 23-E of the M.P. Accommodation Control Act, 1961 (hereinafter to be referred to as the Act) against the order by which his application under section 23-A (b) of the Act for eviction of the tenant has been rejected. 2. It is not in dispute that the New Bank of India had taken on lease a portion of the house No. 780/661, Ward No. 16, Lalta Chowk, Satna by the lease-agreement dated 26.4.1981 from applicant Girish Kumar Srivastava and his three brothers for banking business at a monthly rent of Rs. 1802.50 paise for a period of five years. The area of the house which was the subject matter of lease is 1442 Sq. ft. and is shown in red colour in the map annexed to the application. There has been no partition amongst the applicant and his brothers. He is Karla of the joint Hindu family. The New Bank of India has been amalgamated in the Punjab National Bank and this Bank is now the tenant in the suit accommodation. The applicant was in State Government service and has retired from the post of District Registrar, Damoh on 28.2.1994. 3. The applicant's case is that he comes in the category of the "landlord" defined in section 23-J of the Act as he is a "retired servant of the Government". He has pleaded that he bona fide requires the suit accommodation for starting the business of a restaurant and he has the capital for that purpose. He has stated that he is in sound health to run this business. He has no other reasonably suitable non-residential accommodation of his own in his occupation for this purpose in the city of Satna. There are two other houses in his name and in the name of his brothers which are being used for residence. The portions in the house in which the suit accommodation is situated are either in the occupation of other tenants or the applicant's son is doing business therein. 4. The non-applicant's case is that the applicant being the co-owner of the house cannot alone seek to evict the tenant as there is no consent of the other co-owners and they are not covered by the category of "landlords" given in section 23J of the Act.
4. The non-applicant's case is that the applicant being the co-owner of the house cannot alone seek to evict the tenant as there is no consent of the other co-owners and they are not covered by the category of "landlords" given in section 23J of the Act. It is denied that the plaintiff requires the suit accommodation for running restaurant business. It is said that it is a mere pretence to get the suit accommodation vacated. 5. The Rent Controlling Authority by the impugned order has held that a co-owner cannot get the suit accommodation vacated as the consent of two other co-owners has not been proved and the applicant's alleged requirement is not bona fide as he could get other tenants evicted to fulfil his need or he could use his residential house for that purpose. 6. The points which arise for determination are (a) whether the applicant as co-owner of the suit accommodation can get the non-applicant evicted and (b) whether the applicant bona fide requires the suit accommodation for carrying on restaurant business and he has no other reasonably suitable non-residential accommodation of his own in his occupation for this purpose. 7. Point (a) The impugned order of the Rent Controlling Authority shows that the Full Bench decision of this Court in Harbans v. Smt. Margret 1990 JLJ 97 = 1990 MPLJ 112 was cited before it but it has not been followed. It has been held in this decision that a co-owner can initiate eviction proceedings against the tenant in the absence of other co-owners if they do not object for the same. The Supreme Court has made it clear in several decisions that a co-owner owns every part of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner of the property. A co-owner is as much as owner of the entire property as any sole owner and the absence of other co-owners will not disentitle a co-owner from maintaining an action for eviction when the other co-owners do not object to the same. Sri Ram Pasricha v. Jagannath AIR 1976 SC 2335 and Kanta Goel v. B.P. Pathak AIR 1977 SC 1599 .
Sri Ram Pasricha v. Jagannath AIR 1976 SC 2335 and Kanta Goel v. B.P. Pathak AIR 1977 SC 1599 . This legal position has been made clear recently in Dhannalal v. Kalawatibai 2003 (1) JLJ 85 = AIR 2002 SC 2572 where it has been held that where a claim for. eviction is filed by a landlord, or a co-landlord, belonging to anyone of the five categories defined in section 23J of the Act, as the sole applicant without objection by other co-landlords who have not joined as co-applicants and the nature of claim for eviction is covered by section 23A (b) of the Act, the proceedings would lie only before the Rent Controlling Authority. 8. In view of the above legal position the application at the instance of one co-owner who comes in the category of landlord given in section 23-J of the Act is maintainable. It is not shown by the non-applicant that any other co-owner is objecting to such action. There is no pleading to this effect by the non-applicant in the written statement. Girish Kumar Srivastava (PW 1) has deposed that there is no objection from the side of his brothers. It is admitted that the applicant is Karta of the joint Hindu family being the eldest brother. Satish Kumar (PW 3) is brother of the applicant. He has also deposed that there is no objection from his side and from the other two brothers. It is not necessary that the consent of each brother should be proved. The requirement of law is that there should be no objection by the other co-owners. It has been argued on behalf of the respondent that each brother is being paid rent by the non-applicant separately. There is apportionment of rent only but the tenancy is joint. Therefore, the application for eviction at the instance of one co-owner is legally maintainable as there is no objection from other brothers. 9. Point (b) Applicant Girish Kumar (PW 1) has further deposed that he requires the suit accommodation for carrying on the business of restaurant as he is retired and he wants to augment his income. He has the capital and good health for this purpose. The other two houses are being used for residential purpose and the remaining accommodation in the house in which the suit accommodation is situated is with other tenants.
He has the capital and good health for this purpose. The other two houses are being used for residential purpose and the remaining accommodation in the house in which the suit accommodation is situated is with other tenants. His evidence has been substantiated by his brother Satish Kumar (PW 3) and two more witnesses Shanker Lal (PW 2) and Harish Kukreja (PW 4). On the other hand J.K. Pagare (DW 1) is the Bank Manager. He has deposed that the other shops are with the tenants and one of the shops is being used as P.C.O by the applicant's son. Thus, from the evidence on record it is established that the applicant bona fide requires the suit accommodation for carrying on the business of running a restaurant. There is nothing unreasonable in the predilection shown by the applicant. There is no other alternative non-residential accommodation of his own in his occupation for this purpose. The residential house cannot be alternative non-residential accommodation. It has been held by the Supreme Court in Prem Narain v. Hakimuddin 1999 (2) JLJ 260 = AIR 1999 SC 2450 that the Court cannot burden the landlord with additional conditions of disclosing particulars of residential accommodation in his possession and proving that it is not reasonably suitable for non-residential purpose. 10. It is not disputed that the other shops are in the occupation of the tenants or in the occupation of the applicant's son for running a P.C.O. It is the choice of the applicant from which tenant he should get the accommodation vacated to fulfil his need. Raghvendra v. Prem Machinery 2000 (1) JLJ 186 = AIR 2000 SC 534 . The business of a restaurant requires sufficient accommodation and if the applicant has chosen the suit accommodation there is nothing unreasonable in it. The view taken by the Rent Controlling Authority is perverse, unreasonable and contrary to law and therefore it can be interfered with in revision under section 23-E of the Act. M.P. Dongre v. Kusumlata 2000 (1) MPLJ 540. 11. The revision is allowed. The impugned order is set aside. The respondent is directed to deliver vacant possession of the accommodation shown in red colour in the map annexed to the application which is a portion of House No. 780/611 situated at Lalta Chowk, Satna to the applicant within two months of the date of this 'order.