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2006 DIGILAW 1252 (PAT)

Laxmi Prasad Chauhan v. Ajai Kumar

2006-12-14

AJAY KUMAR TRIPATHI, NARAYAN ROY

body2006
Judgment 1. Heard Mr. Ganesh Pd. Singh, learned counsel for the appellant, and Mr. Lalit Kishore, learned Advocate General No. Ill for the State. 2. This appeal is directed against order dated 19.8.2005* passed by a learned single Judge of this Court in C.W.J.C. No. 2356 of 2001, whereby and whereunder the writ application was disposed of with a direction to respondent no. 5, the landlord, to pay a sum of Rs. 20,000.00 to the writ petitioner by way of compensation towards damages caused to him and at the same time the learned single Judge directed the appellant also to pay a sum of Rs. 20,000.00 to the writ petitioner. The learned single Judge also directed the Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, Patna to look into the conduct of respondent no. 2 (the appellant) in relation to the matter in question and to take appropriate departmental proceeding against him. In the event, the decision is not taken to initiate such proceeding, the Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, shall file an affidavit within a month from the date of order. 3. Mr. Ganesh Prasad Singh, learned counsel for the appellant, submitted that the appellant in purported exercise of power, as envisaged "under the Bihar Buildings (Lease, Rent and Eviction) Act, 1982 (hereinafter to be referred to as "Act") passed the order, which was challenged in the writ application directing forceful removal of the tenant of the shop premises in question for the purpose of repairs of the buildings, and therefore, the order passed by him even under section 9 of the Act cannot be said to be wholly without jurisdiction and with an oblique purpose. He further submitted that there was no allegation against the appellant that he passed the order on extraneous consideration and since he was the Rent Controller under the provisions of the Act, he was fully empowered to pass an order under the provisions of the Act. He also submitted that the appellant in his all bona fide paid a sum of Rs. 20,000.00 by way of compensation to the writ petitioner, and, therefore, the direction issued by the learned single Judge to examine the conduct of the appellant and to initiate a proceeding would be too harsh. He also submitted that the appellant in his all bona fide paid a sum of Rs. 20,000.00 by way of compensation to the writ petitioner, and, therefore, the direction issued by the learned single Judge to examine the conduct of the appellant and to initiate a proceeding would be too harsh. Learned counsel for the appellant, in this view of the matter, urged to set aside that part of the order directing for initiation of a departmental proceeding against the appellant. 4. It appears from the order impugned that the landlord, respondent no. 1, approached the appellant with a request to remove the tenant, the writ petitioner, from the shop premises in question for purpose of effecting repairs thereto. The appellant issued notice to the writ petitioner, which was answered by the tenant contending therein that the Controller (the appellant) was not the competent authority to act upon the prayer made by the landlord in exercise of power under section 9 of the Act. 5. The Controller (the appellant), however, after hearing the parties ordered for forceful removal of the tenant from the shop premises in question and for that purpose, he authorised the Anchaladhikari and the police force to effect the eviction for repair of the shop premises in purported exercise of his power under section 9 of the Act. The order passed by the Controller, the appellant, however, was found to be wholly without jurisdiction by the learned single Judge and, thus, directed for payment of damages and initiation of a departmental proceeding against him. 6. It is not in dispute that the appellant, the Controller, passed the order of forceful removal of the tenant from the shop premises in question in exercise of his power under section 9 of the Act. 7. Section 9 of the Act reads as under: "9. Directions for repairs to the building. (1) Every landlord shall carry out the repairs which he is bound, under any law, contract or custom, to make to a building in the possession of tenant. Explanation.In this sub-section repair includes annual white-washing, re-colouring and periodical repairs. 7. Section 9 of the Act reads as under: "9. Directions for repairs to the building. (1) Every landlord shall carry out the repairs which he is bound, under any law, contract or custom, to make to a building in the possession of tenant. Explanation.In this sub-section repair includes annual white-washing, re-colouring and periodical repairs. (2) If the landlord fails to carry out annual white-washing, re-colouring and periodical repairs, which he is bound to make, the tenant may by notice require him to carry out the same within one month from the date of service of the notice and, on the landlords failure to do so within the said period, the tenant may himself carry out the same at cost not exceeding one months rent for the building and deduct such cost from the rent. (3) If the landlord neglects to carry out repair, other than those referred to in sub-section (2), which he is bound to make, the Controller shall, on application by the tenant, which shall specify the approximate cost of such repairs, cause a notice to be served on the landlord to appear and show cause, within such time as may be fixed against the application. (4) If the landlord does not appear in obedience to the notice or if he appears but fails to satisfy the Controller as to why he should not be directed to carry out the repairs or such of them as he finds the landlord is bound to make, the Controller shall after making such further inquiry as may be necessary direct him to carry out the same within a time to be fixed, and on the landlords failure to comply with such direction, the Controller may permit the tenant to carry out such repairs at a cost not exceeding such amount as may be specified in the order and to recover such cost from the landlord. It shall thereafter, be lawful for the tenant to make such repairs and to deduct the cost thereof from the rent or to recover it otherwise from the landlord as if it were a debt due to him by the landlord: [Provided that if, the Controller is satisfied that the repairs involve were due to the negligence of the tenant, he will order the tenant to make such repairs and the cost of repairs shall be borne by the tenant and the same shall not be recoverable from the landlord by deduction from the rent." 8. On plain reading of the provisions of Section 9 of the Act, it appears that in case, the landlord fails to carry out repair of the shop premises, which he is bound to make under any law, contract or custom, the Controller shall on application by the tenant cause a notice to be served on the landlord to appear and show-cause and thereafter the Controller may pass necessary orders for repairs of the shop in question. 9. This power, obviously, therefore, was exercisable by the Controller on the request of the tenant, but, in the instant case, on the request made by the landlord, the Controller exercised his power under section 9 of the Act directing forceful removal of the tenant, which, obviously, appears to be wholly-without jurisdiction. 10. It is borne out from the order-sheet of the Controller itself that upon notice, the tenant had appeared before him and submitted that the power under section 9 of the Act cannot be exercised on the prayer of the landlord, but still then the appellant overlooking the provisions of Section 9 of the Act, directed for forceful removal of the tenant from the shop premises in question. 11. The learned single Judge of this Court, in this view of the matter, directed the appellant to pay a compensation of Rs. 20,000/-, which was paid by him and at the same time, directed the State authorities to scrutinise his conduct and initiate a departmental proceeding. It was unbecoming of an officer like the appellant, who passed the order impugned in complete disregard of the provisions of law and specially when he was reminded of his jurisdiction by the tenant. The observations made by the learned single Judge of this Court to the extent aforesaid, therefore, in our opinion, cannot be said to be unwarranted. 12. It was unbecoming of an officer like the appellant, who passed the order impugned in complete disregard of the provisions of law and specially when he was reminded of his jurisdiction by the tenant. The observations made by the learned single Judge of this Court to the extent aforesaid, therefore, in our opinion, cannot be said to be unwarranted. 12. An affidavit has been filed on behalf of the State stating therein that as per the direction of this Court, it has been decided to initiate a departmental proceeding against the appellant and a memorandum of charges was prepared to be served upon the appellant. 13. In the background aforesaid, we find no force in the submission of learned counsel for the appellant nor we find the direction of the learned single Judge to initiate a departmental proceeding, otherwise bad or excessive of its jurisdiction in the peculiar facts and circumstances of the case. 14. In the result, this appeal is dismissed.