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2008 DIGILAW 308 (JHR)

Shambhu Nath Prasad v. State Of Jharkhand

2008-03-13

AMARESHWAR SAHAY

body2008
ORDER Amareshwar Sahay, J. 1. Heard the parties. 2. The petitioner, a registered owner of a building standing over 2 kathas 8 chhatakas of land, situated at Jagatpal Sahay Street within Ward No. 3 of Ranchi Municipal Corporation, has challenged the order dated 4.6.2007, contained in Annexure-14 to the writ application, whereby the Deputy Commissioner-cum- Collector, Ranchi, has rejected his prayer tode-requisition the said building premises under the provisions of Section 11(2) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1947, (hereinafter called as the B.B.C. Act for the sake of convenience). 3. The facts in short for the purpose of disposal of this writ petition are as follows: Municipal Survey Plot Nos. 1138 and 1139 corresponding to Municipal holding Nos. 1105 and 1106, was owned and possessed by M/s. Ranchi Jamindari Limited, a Company established by Raja Baldeo Das Birla, which, subsequently, came in possession of M/s. Ranchi Enterprises and Properties Limited. M/s. Ranchi Enterprises and Property Limited made a gift with respect to 89 links of the aforesaid properties to Academic of Indian Culture by virtue of a Registered Deed of Gift dated 17.9.1990. The said Academic of Indian Culture sold 2 Kathas and 8 Chhataks of the land along with house out of the aforesaid properties to the petitioner by a registered deed of sale dated 24.1.2002. The petitioner got his name mutated in Ranchi Municipal Corporation. The premise in question, which was purchased by the petitioner, was previously requisitioned in exercise of the powers under Section 11(2) of B.B.C. Act by the Deputy Commissioner and it was allotted in the name of Sri. J. Jha, Dy. Collector and Land Acquisition Officer, Ranchi. In the year 1966. the said premises was again allotted to Sri K.N. Sinha, Sub-Deputy Magistrate after the same was vacated by Sri Jha. In the year 1967. the same premises was again allotted to Sri S.N. Jha, Sub-Deputy Collector and A.D.S.O. under Section 11(2)(a) of B.B.C. Act on 5th December, 1967. 4. On 26.5.1970, it was allotted to one Sri C. Tudu, District Public Relation Officer, Ranch! under Section 11(2) of the said Act and, thereafter, again to one Sri B.L. Hansda, District Public Relation Officer, Ranchi. Sri B.L. Hansda retired from service and, thereafter, one Sri Gandura Munda, District Public Relation Officer, Ranchi occupied the said premises. 5. 4. On 26.5.1970, it was allotted to one Sri C. Tudu, District Public Relation Officer, Ranch! under Section 11(2) of the said Act and, thereafter, again to one Sri B.L. Hansda, District Public Relation Officer, Ranchi. Sri B.L. Hansda retired from service and, thereafter, one Sri Gandura Munda, District Public Relation Officer, Ranchi occupied the said premises. 5. The petitioner filed an application before the Deputy Commissioner, Ranchi on 31.7.2004, for vacation of the said premises and for handing over the possession of the same to him. The Deputy Commissioner, directed the Sub- Divisional Officer, Sadar, Ranchi, to make an enquiry and submit report regarding the actual position of the premises in question. The S.D.O., Sadar, Ranchi, submitted his report wherein he reported that Sri Gandura Munda was in occupation of the premises without having any valid order of allotment from the Deputy Commissioner under Section 11(2)(a) of B.B.C. Act and even the rent for the said building was not being paid to the owner of the building. The report of the S.D.O., Ranchi has been annexed as Annexure-9 to the writ petition. 6. The Deputy Commissioner, after receipt of the enquiry report sent a letter to the Secretary, Public Relation and Information Department on 28.10.2005, contained in Annexure-10 to the writ application, stating therein that there was no valid allotment in the name of Sri Gandura Munda under Section 11(2)(a) of B.B.C. Act and since the premises, in question, is in dilapidated condition and is not fit for habitation and, therefore, the said premises be vacated and possession thereof should be handed over to the house owner. Accordingly, a request was made to give direction to the Director, Public Relation Department to get the said house vacated. 7. When the petitioner did not get vacant possession of the said building premises, he filed a writ petition before this Court being W.P.C. No. 887/2007. This Court by order dated 19.3.2007, contained in Annexure-1 to the writ petition, disposed of the said writ petition with a direction to the Deputy Commissioner to consider the application of the petitioner and to pass an order on the application of the petitioner within two months. 8. This Court by order dated 19.3.2007, contained in Annexure-1 to the writ petition, disposed of the said writ petition with a direction to the Deputy Commissioner to consider the application of the petitioner and to pass an order on the application of the petitioner within two months. 8. Pursuant thereto the Deputy Commissioner, has passed the impugned order, contained in Annexure-14 to the writ petition, whereby the prayer of the petitioner for derequisition and handing over the possession over the building in question to the petitioner has been refused, which is under challenged in this writ application. 9. Mr. Amar Kumar Sinha, learned Counsel appearing for the petitioner by referring the proviso to Section 11(2)(a) of B.B.C. Act, submitted that under Section 11(2)(a) of B.B.C. Act after a Government servant vacated the premises under the tenancy if the District Magistrate does not allot the requisitioned building premises to any other Government servant subject to payment of rent within the time prescribed therein then in that case the law provides that it would be deemed that the landlord has been put in possession of the building. He further submitted that admittedly, even according to the report of the Sub- Divisional Officer (Annexure-9) Sri Gandura Munda, District Public Relation Officer, Ranchi in absolutely unauthorized and illegal possession of the building in question the Deputy Commissioner had not allotted him to occupy the said building by an order, therefore, the occupation of Sri Gandura Munda is absolutely illegal and against the provisions of Section 11(2)(a) of B.B.C. Act. The premises in question was last allotted by the Deputy Commissioner to Sri B.L. Hansda, District Public Relation Officer, Ranchi on 26.5.1970 and after his retirement and after he vacated the premises in question, the Deputy Commissioner did not allot the said building to any other Government servant as envisaged under the provisions of Section 11(2)(a) of B.B.C. Act. Mr. Sinha further submitted that the order impugned as contained in Annexure-14 is absolutely illegal and is based on strenuous consideration because the then Deputy Commissioner by an order as contained in Annexure-10 dated 28.10.2005 had already sent a letter to the Director, Public Relation Department to get the house vacated and to hand over the possession to the landlord. Accordingly, it is submitted that the impugned order, as contained in Annexure-14, passed by the Deputy Commissioner, is not sustainable in the eyes of the law. Accordingly, it is submitted that the impugned order, as contained in Annexure-14, passed by the Deputy Commissioner, is not sustainable in the eyes of the law. 10. Though a counter-affidavit has been filed on behalf of the respondent No. 3 but from the statements made in the counter- affidavit, it appears that there is no denial of the fact that the premises in question was not allotted to Sri Gandura Munda nor any payment of rent with respect to the said building was being made to the landlord. However, Mr. Sumeet Gadodia, learned JC to the Advocate General submitted that transfer of the premises in question by the Academic counsel of Indian Culture by a deed of sale in 2002 in favour of the petitioner was invalid, since it was made in violation of the provisions of the Urban Land Ceiling Act because without taking permission of the Deputy Commissioner the premises was sold to the petitioner therefore, the question of derequisition of the building in question in favour of the petitioner cannot and does not arise. 11. From the pleadings of the parties it appears that there is no dispute of the fact that the premises In question was a requisitioned under Section 11(2)(a) of B.B.C. Act, the Government was a tenant with respect to the said premises on payment of rent. There is also no dispute of the fact that the premises in question was purchased by the petitioner by a registered deed of sale. There is also no dispute of the fact that after 26.5.1970 when it was allotted to one Sri B.L. Hansda and after he vacated the premises after his retirement from service, there has been no allotment of the said building premises by the Deputy Commissioner to any other Government servant under Section 11(2)(a) of the B.B.C. Act and no rent of the building in question was being paid to the landlord. It is not a case of the respondents that the premises in question was allotted to somebody else by the Deputy Commissioner after the same was vacated by Sri B.L. Hansda, the then District Public Relation Officer, Ranchi. 12. It is not a case of the respondents that the premises in question was allotted to somebody else by the Deputy Commissioner after the same was vacated by Sri B.L. Hansda, the then District Public Relation Officer, Ranchi. 12. To resolve the contrary raised in this case it is necessary to examine the provisions of Section 11(2)(a) of the B.B.C. Act, which reads as under: 11(2)(a) Where a servant of the Government in possession of any building as a tenant intends to vacate such building he shall give fifteen days previous notice in writing of his intention to do so to the landlord and to the District Magistrate who shall under intimation to the landlord within a week of the receipt of the notice, either allot the building to any other servant of the Government whom the District Magistrate thinks suitable subject to the payment of rent, and the observance of the conditions of the tenancy by such servant of the Government or direct that the landlord shall be put in possession of the building: Provided that when no such order is passed by the District Magistrate, the landlord shall be deemed to have been put in possession of the building. 13. From the impugned order passed by the Deputy Commissioner, contained in Annexure-14, I find that the Deputy Commissioner has held in the impugned order that the petitioner could not adduce evidence to substantiate his claim with respect to his claim to ownership of the property in question. He has also held that the land in question is under disputed ownership and owner of the property in question is only entitled for monthly rent after final disposal of land ceiling case. 14. In my view, The Deputy Commissioner has gone beyond the scope of Section 11(2)(a) of the B.B.C. Act, which empowers the Deputy Commissioner to allot a requisitioned house to a Government servant to whom he thinks suitable subject to payment of rent and observance of conditions of tenancy by such Government servant. The status of Government becomes of a tenant with respect to the requisitioned house. While exercising powers under Section 11(2)(a) of the B.B.C. Act, the Deputy Commissioner, acts as an agent of the Government and, therefore, under that capacity he does not have authority to question the title and ownership of the landlord. The status of Government becomes of a tenant with respect to the requisitioned house. While exercising powers under Section 11(2)(a) of the B.B.C. Act, the Deputy Commissioner, acts as an agent of the Government and, therefore, under that capacity he does not have authority to question the title and ownership of the landlord. In the present case the Deputy Commissioner has gone beyond his jurisdiction in questioning the right and title of the petitioner. There is no dispute that the petitioner has purchased the aforesaid property by a registered deed of sale in 2002 and unless and until the sale-deed is declared to be invalid by a competent civil Court, the Deputy Commissioner in a proceeding of this nature cannot question the validity of the transfer made in favour of the petitioner, particularly, when his predecessor by an order as contained in Annexure-10 had already accepted the petitioner to be a landlord and the Government as a tenant. His predecessor had already admitted that the building in question was not allotted to Gandura Munda by any order of the Deputy Commissioner, which was a clear cut violation of the provisions of Section 11(2)(a) of the B.B.C. Act. 15. In this view of the matter, there was no scope at all for the Deputy Commissioner to take a contrary view in the impugned order as contained in Annexure-14. 16. In the present case no order under Section 11(2)(a) of the B.B.C. Act has been passed by the Deputy Commissioner within the time prescribed by allotting the building to any other Government servant and, therefore, in view of the proviso to Section 11(2)(a) of the B.B.C. Act it would be deemed that the petitioner has been put in possession of the premises in question. 17. The occupation of the premises in question by any person without any valid order from the requisitioning authority or permission of the petitioner would be deemed to be unauthorized possession and, therefore, the petitioner is held to be entitled to take all necessary action for getting the possession of the premises in question in accordance with law. Consequently, this writ application is allowed. The order dated 4.6.2007, passed by the Deputy Commissioner, contained in Annexure-14, is hereby set aside. 18. However, in the facts and circumstances of the case, there shall be no order as to cost.