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2011 DIGILAW 2146 (PAT)

Sheo Nath Singh v. State of Bihar

2011-10-15

AHSANUDDIN AMANULLAH

body2011
ORDER Heard Mr.J.S.Arora, learned senior counsel for the petitioner and learned A.C. to A.A.G.-1 for the respondents. 2. The petitioner is aggrieved by the order passed by the House Controller, Danapur in Bihar Building Control Case No.3 of 2003 dated 11.3.2008 by which he has held that a proceeding under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the ‘Act‘) was not maintainable before him with a further observation that if so advised, the petitioner may move before the Defence Estate Officer. 3. Learned counsel for the petitioner assails the order on the ground that the objection ought not to have been raised by the House Controller for various reasons, interalia, that in the past also there was a dispute with regard to fixation of fair rent between the parties and the matter travelled up to this Court, where it was affirmed. In all those proceedings the maintainability was never objected by any of the parties. 4. However, in the present case it appears that initially the House Controller had fixed the fair rent, which was challenged by the respondent concerned, who was the tenant of the premises, before the Collector. The Collector by order dated 9.11.2006, remanded the matter back to the House Controller for being considered in accordance with the provisions of the Act. 5. Thereafter when the matter was taken by the House Controller it appears that strangely on the intervention of the Danapur Cantonment Board having raised a plea that the proceeding was not maintainable before the said authority, the order impugned came to be passed. 6. Learned counsel for the petitioner while assailing the order impugned has also referred to the decision of this Court in the case of Ghanshyam Das Gupta Vs.Devi Lal and others reported in 1982 PLJR 339 in which it has been categorically held that the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 has been made applicable to the Danapur Cantonment Area in the year, 1970.The abovementioned Act of 1947 was the precursor to the present Act. 7. Learned counsel for the petitioner further submits that the said Act contemplates for fixation of fair rent when tenancy is not denied and in the present case it is admitted position that the petitioner is the landlord, and it was never in controversy that the petitioner was not the landlord. 7. Learned counsel for the petitioner further submits that the said Act contemplates for fixation of fair rent when tenancy is not denied and in the present case it is admitted position that the petitioner is the landlord, and it was never in controversy that the petitioner was not the landlord. It is further contended that the petitioner is covered by the definition of ‘landlord’ as contained in Section 2(f) of the Act and in that view of the matter, the House Controller was neither required nor authorized to go into any other aspect and ought to have decided the fair rent under the provisions of the Rules as framed under the Act. He lastly submits that even the order of remand was for fixing the rent only in accordance with the Rules and the House Controller had no authority to travel beyond that and go into the jurisdictional issue. 8. Learned counsel for the State on the other hand has raised two jurisdictional objections. Firstly he submits that the Danapur Cantonment Board was a necessary party and in its absence the writ petition was not competent to be heard. 9. This Court feels that there is no substance in the said objection for the reason that only after remand the Danapur Cantonment Board had raised an objection, which was found fit to be entertained on the point of jurisdiction which was not proper. 10. Despite the issue being purely as to the quantum of the rent, which is to be paid by the respondents for the premises they occupy belonging to the petitioner, this was not the forum to decide whether the jurisdiction or applicability of the Act was correct before the authority concerned. 11. Even this Court in the decision of Ghanshyam Das Gupta (supra) holding that the Act of 1947 is applicable to the Danapur Cantonment, in effect, makes the present Act also applicable to the Danapur Cantonment. 12. The second preliminary objection by the learned counsel for the State is that the impugned order is appealable under the provisions of Section 24 of the Act. It would be relevant to quote Section 24 of the Act, which reads as under :- “24. Appeal.–(1) Any person aggrieved by an order passed by the Controller may, within fifteen days from the date of receipt of such order by him, prefer an appeal in writing to the appellate authority. It would be relevant to quote Section 24 of the Act, which reads as under :- “24. Appeal.–(1) Any person aggrieved by an order passed by the Controller may, within fifteen days from the date of receipt of such order by him, prefer an appeal in writing to the appellate authority. (2) On such appeal being preferred, the appellate authority, may– (a) after perusing the memorandum of appeal and hearing the appellant, if necessary, summarily dismiss the appeal, or (b) call for the records of the case from the Controller and after examining such records and, if necessary, making such further enquiry as he thinks fit decide the appeal. (3) Subject to the provisions of Section 26 the decision of the appellate authority and subject only to such decision where an appeal lies, an order of the Controller shall be final, and shall not be liable to be questioned in any Court of law whether in suit or other proceeding by way of appeal or revision.” 13. This Court feels that even this objection is also not tenable as the sentence of Section 24(1) of the Act begins with the line such that “Any person aggrieved by an order passed by the Controller…….” (emphasis mine). 14. In the present case the order under challenge cannot be considered to be ‘order’ for the reason that the House Controller has said that he was closing the proceeding in the case and further observed that the petitioner if feels aggrieved may move the Cantonment Board .This Court feels that this cannot come under the scope of Section 24 of the Act. Even otherwise, this being purely a jurisdictional point and thus a pure question of law, this Court under its writ jurisdiction is competent to decide the issue. 15. Another aspect which this Court feels necessary to deal with is the provision of Section 32 of the Act which reads as under:- “32. Act not to apply to buildings owned by Government and Trusts.–Nothing contained in this Act shall apply to a tenant whose landlord is the local authority or the State Government or the Central Government or the Bihar State Shwetamber Jain Trust Board or Bihar State Digamber Jain Trust Board or the Wakf which may be under the Bihar State Wakf Boards.” 16. It is thus clear that application of the Act is excluded only where the landlord is the local authority or the State Government or the Central Government (rest not relevant in the instant case) .In the present case it is an admitted position that the petitioner is the landlord, and thus Section 32 of the Act has no applicability. This position is also established from the order passed earlier by this Court in C.W.J.C. No. 8649 of 1995 dated 04.12.1996 between the same parties in relation to the same premises which is the subject matter of the present writ. Thus, in this view of the matter also, the proceeding before respondent no. 3 is proper in law and the same has to be decided as per the provisions of the Act and the Rules framed thereunder. 17. Considering the facts and circumstances of the case the order impugned dated 11.3.2008 passed by the House Controller in Case No. 3/03 is set aside. 18. It is held that the proceeding before the House Controller is maintainable. As the matter has been remanded for a fresh decision, the same be decided after hearing the parties within two months from the date of receipt/production of a copy of this order before respondent no. 3. 19. The writ petition accordingly stands allowed.