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Madhya Pradesh High Court · body

2007 DIGILAW 1045 (MP)

NARMADA BAILAMBHATE v. SHAKUNTALA IDANE (SONI)

2007-09-25

S.K.SETH

body2007
Judgment ( 1. ) THIS appeal under section 32 of the M. P. Accommodation Control Act, 1961 (hereinafter referred to as "the Act") is by the landlady whose application under section 39 of the Act was rejected by the Rent controlling Authority (RCA), Indore. ( 2. ) THE facts relevant for the decision lie in a narrow compass. It is not in dispute that the respondent occupied three rooms on the ground floor of the suit house on payment of monthly rent of Rs. 70/ -. The suit house is situated in Juna tukoganj, Indore and has been assigned Municipal No. 63-64. According tothe appellant, the rooms were allotted to the respondent by virtue of her holding office of profit under the State Government. It was claimed that subsequently, the respondent has been allotted a Govt. accommodation and she is residing there. It was also claimed that the suit accommodation is required by the appellant bona fide for occupation along with her family members. ( 3. ) THE application was contested by the respondent. It was also pointed out that the suit filed by the appellant in the Court of Vth Civil Judge, Class-H, indore was dismissed, therefore, the judgment and decree passed by the Civil court would operate as res judicata and the appellant was not entitled to any relief. ( 4. ) THE RCA sustained the objection of the respondent and held that the finding given by the Vth Civil Judge, Class-II, Indore in Civil Suit No. 188-A/2002 decided on 31-7-2002 would operate as res judicata and accordingly dismissed the application. Being aggrieved by the said order of RCA, the appellant preferred an appeal under section 31 of the Act. The lower Appellate court by the impugned order held that the application filed by the appellant was in fact an application for eviction falling under Chapter IIIA of the Act and against the order passed by the RCA, only remedy the appellant had was to file a revision in this Court under section 23-E of the Act and accordingly, it held that the appeal was not maintainable and dismissed the same. Hence, this appeal under section 32 of the Act, as stated hereinabove. ( 5. Hence, this appeal under section 32 of the Act, as stated hereinabove. ( 5. ) LEARNED counsel for the appellant vehemently argued that once an application is made under section 39 of the Act, it is the duty of the RCA to hold an enquiry as provided under the first Proviso to sub-section (2) of section 39 of the Act. It was submitted that without holding an enquiry, the RCA could not have dismissed the application. It was also contended that the judgment and decree passed by Vth Civil Judge, Class-II, Indore in Civil Suit No. 188-A/2002 would not operate as res judicata as it was not between the same parties in respect of the same accommodation. It was also contended that the lower appellate Court committed an error of law in treating the application filed under section 39 of the Act as an application under Chapter IHA for eviction. He, therefore, contended that the questions of law formulated at the time of admission which read as under, should be answered in favour of the appellant. " (1) Whether the learned A. D. J. has erred in law by holding that the appeal is not maintainable as the appellant has filed application under section 39 of the M. P. Accommodation Control Act, 1961 ? (2) Whether the learned R. C. A. has committed an error by holding that it amounts to res judicata as the parties and the issues tried by the learned civil Court are different ?" ( 6. ) PER contra, learned counsel for respondent submitted that the application under section 39 of the Act was misconceived and the only remedy so far as eviction of the respondent is concerned, was available to the appellant either under section 12 or under Chapter IDA of the Act and the appellant could not be permitted to bypass those provisions in order to secure eviction of the respondent. Learned counsel for respondent has relied upon the observations made by Full Bench in Durga Prasad vs. Shri K. P. Dixit, 1984 MPLJ 829 = 1984 JLJ 10 . ( 7. Learned counsel for respondent has relied upon the observations made by Full Bench in Durga Prasad vs. Shri K. P. Dixit, 1984 MPLJ 829 = 1984 JLJ 10 . ( 7. ) AFTER having heard learned counsel for the parties and going through the material available on record, it is clear that the RCA was wrong in holding that the decision given in Civil Suit No. 188-A/2002 would operate as res judicata for the simple reason that the said decision was against another tenant in respect of the rooms in his occupation on the first floor of the suit house. The decision rendered in that case had no bearing so far as rooms which are in occupation of the respondent on the ground floor of the suit house. It is also clear that the lower appellate Court was wrong in treating the application as an application under chapter IIIA for eviction when indisputably, the appellant does not belong to the special category of landlord as specified in section 23-J of the Act. Thus, both the questions formulated at the time of admission have to be answered in favour of the appellant. But, that would not advance appellants case because while deciding a Second Appeal under section 32 of the Act, this Court has only to see that the decision is contrary to law; decision has failed to determine some material issue of law; and that there has been a substantial error or defect in the procedure which might possibly have produced error in the decision of the case on merits. Letting and eviction of tenants from the rent premises is now controlled by the Act. It is a common knowledge that after the Second World war, there was acute shortage of housing, therefore, it was felt that the right of landlord to claim eviction under general law should be regulated by rent-legislation and the laws of landlord and tenant must be made rationale and benevolent so as to protect the interests of the tenants. The M. P. Accommodation Control Act, 1961 is one of such piece of legislation which controls the unfettered right of the landlord to let out on rent and seek eviction of a tenant from the rented premises. Now a landlord can seek eviction of tenant only on the grounds specified under section 12 of the Act wherever the Act is applicable. Now a landlord can seek eviction of tenant only on the grounds specified under section 12 of the Act wherever the Act is applicable. It also controls the right of landlord to let out if an accommodation covered by the Act has fallen vacant or is likely to fall vacant. Provision has been made for this purpose in section 39 of the Act. From a bare perusal of section 39 of the Act it would be clear that it enjoins upon a landlord to give information to the competent authority if an accommodation has fallen vacant or is likely to fall vacant within the specified time so that any person holding office of profit under the Union or the State Government or any person in the service of local authority i. e. Electricity Board, Board of Secondary Education or such other body corporation, as may be notified from time to time, could be allotted the accommodation. At the same time, the law recognises the right of self occupation of the landlord provided he discloses sufficient grounds in the information which the landlord is required to give under sub-section (1) of section 39 of the Act. A bare perusal of the provisions clearly goes to show that the right for self occupation must be exercised before an accommodation is allotted to a person covered under sub-section (2) of section 39 of the Act. Once the accommodation is allotted and after the allotment, the landlord wants the accommodation for any reason, then his remedy is either to file a civil suit under section 12 of the Act or to initiate proceedings under section 23-A of the Act, as the case may be. The landlord cannot resort to provisions of section 39 of the Act to secure an order of eviction. I am fortified in my view by the observations of the Full Bench in durga Prasad (Supra) which read as under :- "6. Under section 39 of the Act, the authorised officer is entitled to make allotment of the accommodation in case it has fallen vacant or is likely to fall vacant. This is the action which is envisaged under section 39 of the act. Section 39 of the Act, however, does not permit the authorised officer to direct a tenant or an unlawful sub-tenant to quit the accommodation. This is the action which is envisaged under section 39 of the act. Section 39 of the Act, however, does not permit the authorised officer to direct a tenant or an unlawful sub-tenant to quit the accommodation. That right is with the landlord who may, if he so chooses, seek the ejectment of his tenant and also to obtain possession from such unlawful sub-tenant by instituting a regular suit. The jurisdiction of the authorised officer is to make the allotment and direct the landlord to put the allottee in possession; and in case the allottee is obstructed to securing possession, to assist him, in obtaining possession. " (emphasis is added) ( 8. ) IN view of the foregoing discussion, I have no hesitation to hold that none of the grounds specified in section 32 of the Act are made out so as to warrant interference and to remand the case because that would be an exercise in futility. Accordingly, the appeal stands dismissed. However, there shall be no orders as to costs. Appeal dismissed.