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2011 DIGILAW 985 (PAT)

M/s. Dabur India Ltd. v. State Of Bihar

2011-05-05

BIRENDRA PRASAD VERMA

body2011
JUDGEMENT BIRENDRA PRASAD VERMA, J. 1. Heard Mr. Keshav Shrivastav, learned Sr. Counsel appearing on behalf of petitioner, learned A.C. to G.A-7, appearing on behalf of respondent nos. 1 to 4 and Mr. Pushkar Narayan Shahi, learned counsel appearing on behalf of respondent no.5. 2. The present writ petition was originally filed questioning the validity and legality of the order dated 2.11.2004 (Annexure-6) passed in Revision Case No. 129 of 2001 by the respondent Commissioner, whereby he directed the writ petitioner to deposit the entire arrears of rent within a period of one month as per determination made by the respondent House Controller under the provisions of The Bihar Building (Lease, Rent and Eviction) Control Act, 1982 (in short Act) and it was also indicated that only after such deposits, the revision application filed by the petitioner shall be admitted. Since the petitioner had already approached this Court by filing the present writ petition on 27.11.2004, hence, he did not deposit the arrears of rent as determined by the House Controller under the provisions of the Act by an order dated 6.6.1997 (Annexure-1). Therefore, due to non-compliance of the impugned order dated 2.11.2004 (Annexure-6), respondent Commissioner dismissed the revision petition filed on behalf of petitioner by an order dated 7.12.2004, on which date the petitioner was not present in the court. The Petitioner, having learnt about the dismissal of his revision application by the aforesaid order dated 7.12.2004, filed a restoration petition on 6.1.2005 praying therein that the issue regarding validity of order dated 2.11.2004 is under consideration before the High Court, Patna in C.W.J.C. No. 145726 of 2004, therefore, restoration application be allowed and revision application may be heard on its own merit. However, by an order dated 31.01.2006, respondent Commissioner, rejected the prayer for restoration of the revision application. The petitioner, being aggrieved by the aforesaid order of respondent no. 2 , has filed I.A. No. 771 of 2006 seeking amendment in the writ petition and seeking permission to challenge the aforesaid order dated 31.01.2006 (Annexure-7). 3. Admittedly, no counter affidavit has been filed on behalf of respondent no.5 or by the official respondents either in the main writ petition or in the interlocutory application filed on behalf of petitioner. 2 , has filed I.A. No. 771 of 2006 seeking amendment in the writ petition and seeking permission to challenge the aforesaid order dated 31.01.2006 (Annexure-7). 3. Admittedly, no counter affidavit has been filed on behalf of respondent no.5 or by the official respondents either in the main writ petition or in the interlocutory application filed on behalf of petitioner. This Court is of the considered opinion that in the factual background of the case, I.A. No.771 of 2006 is fit to be allowed and petitioner is entitled to challenge the order dated 31.1.2006 (Annexure-7) passed in B.B.C. Revision Case No. 129 of 2001 by respondent Commissioner, refusing to restore the aforesaid revision application and further refusing to hear the matter on merit. It is ordered accordingly. 4. Before deciding the issues involved in the present writ petition, it would be relevant to notice certain factual back drop of the case. The petitioner claims to be a Public Limited Company and is represented through its Manager, Legal and Constituted Attorney for M/s Dabur India Ltd. The petitioner was inducted as a tenant of respondent no.5 over an area of 2,40,203 sq ft. of land comprising building and godown, besides certain vacant land by a lease deed dated 8.7.1971. At the time of induction of the petitioner as tenant, rent was fixed @ Rs. 8,000/ per month for the entire premises. Respondent no.5, being the landlord under the meaning of the Act, wanted enhancement of the rent of the premises in question. Therefore, he filed an application under section 5 of the Act before the respondent S.D.M.-cum-House Controller, Patna City for determining fair rent of the building premises in question. Respondent House Controller, after hearing the parties, passed final order in terms of Section 8 of the Act by an order dated 6.6.1997 (Annexure-1) in B.B.C. Case No. 26 of 1996, whereby the fair rent of the premises in question was determined @ Rs. 82,856/- per month, with effect from the date of filing of the said application. 5. The petitioner, being aggrieved by the aforesaid order dated 6.6.1997 (Annexure-1), preferred an appeal before Respondent Collector in terms of Section 24 of the Act questioning the validity and legality of the said order primarily on the ground that fixation of fair rent was arbitrary and it has been enhanced more than ten times. 5. The petitioner, being aggrieved by the aforesaid order dated 6.6.1997 (Annexure-1), preferred an appeal before Respondent Collector in terms of Section 24 of the Act questioning the validity and legality of the said order primarily on the ground that fixation of fair rent was arbitrary and it has been enhanced more than ten times. Challenge of the petitioner before the appellate authority was that order passed by the House Controller was contrary to the mandate of section 8(1)(c) of the Act. However, on notice respondent landlord appeared and contested the claim of the tenant appellant therein before the appellate authority. Whereafter, on consideration of materials, respondent District Collector dismissed the appeal of the petitioner by an order dated 16.11.2001 (Annexure-2) and affirmed the order passed by the House Controller. However, it was observed that the tax paid by the petitioner to the Municipal Corporation shall be adjusted from the fair rent fixed by the House Controller. 6. The petitioner, being aggrieved by the aforesaid appellate order, preferred Revision Case No. 129 of 2001 in terms of Section 26 of the Act before the Divisional Commissioner. When the matter was taken up for admission, then by the impugned original order dated 2.11.2004 (Annexue-6), the Commissioner, purportedly in terms of Section 16 of the Act, directed the petitioner to deposit entire arrears of fair rent, as a condition precedent for admission of the said revision application. The petitioner, being aggrieved by the order dated 2.11.2004, preferred the present writ petition before this Court. Admittedly, the petitioner did not comply the aforesaid order dated 2.11.2004 and could not deposit the entire arrears of fair rent. Therefore, the revision application was finally rejected by the respondent Commissioner by his order dated 7.12.2004, and subsequently, prayer for restoration of the aforesaid revision application has also been rejected by an order dated 31.1.2006 (Annexure-7) which is also under challenge in the present proceeding. 7. Mr. Shrivastava, learned Sr. Counsel appearing on behalf of the petitioner, submits that in view of the law laid down by a Full Bench of our own High Court in the case of Dr. Sachidanand Sinha V/s.The Collector, Patna and others reported in 1989 P.L.J.R 1141, respondent Commissioner could not have made deposit of entire arrears of fair rent, as a condition precedent for admission of the aforesaid revision case. Sachidanand Sinha V/s.The Collector, Patna and others reported in 1989 P.L.J.R 1141, respondent Commissioner could not have made deposit of entire arrears of fair rent, as a condition precedent for admission of the aforesaid revision case. He has placed reliance on paragraph 22 of the Full Bench judgment. He further submits that if the entire fair rent would have been deposited by the petitioner before the admission of the aforesaid revision application, then practically whole object of filing revision application would have been defeated. In the same vein, he submits that even under the mandate of Section 16 of the Act, due to non-deposit of the arrears of rent, only defence against the fair rent order could have been struck off, but deposit of entire rent could not have been made a condition precedent for admission of the revision application filed by the petitioner. He has also drawn attention of this Court to the fact that section 16 of the Act has undergone a change, after the full Bench Judgment of this Court in the case of Dr. Sachidanand Sinha V/s. The Collector, Patna (supra) and there has been some amendment by Amending Act 4 of 1994 coming into force with effect from 14.2.1994. In the submission of the learned counsel for the petitioner, the original impugned order dated 2.11.2004 (Annexure-6) and the subsequent impugned order dated 31.1.2006 (Annexure-7) are not sustainable in the eye of law and are fit to be set aside by this Court. According to him, revision application is required to be heard on merit by the respondent Commissioner. 8. Mr. Pushkar Narayan Shahi, learned counsel appearing on behalf of landlord i.e. respondent no.5, has supported the orders passed by the revisional authority. He submits that premises in question was taken by the petitioner on rent in the year 1971 @ Rs. 8,000/- per month, but despite passage of long period, the petitioner was not inclined to enhance the rent, therefore, landlord was compelled to approach the House Controller for determination of fair rent under the provisions of the Act. According to him, area under occupation to the petitioner is a huge one, of about 2,40,303 sq ft. and with the passage of time and with the price index going up, the rent was required to be revised for the premises in question. According to him, area under occupation to the petitioner is a huge one, of about 2,40,303 sq ft. and with the passage of time and with the price index going up, the rent was required to be revised for the premises in question. In his submission, respondent House Controller was fully justified in fixing the fair rent by the impugned order dated 6.6.1997 (Annexure-1), which on appeal has rightly been affirmed by the appellate authority. He also submits that it is not the case of the petitioner that the rent was not required to be revised and enhanced, but only grievance raised by the petitioner was about the quantum of enhancement. Therefore, according to him, in all fairness, the petitioner should have deposited the rent determined by the House Controller and could have challenged the same before the revisional authority and if revision application would have been allowed and/or there would have been some modification in the order passed by the House Controller, then amount deposited by the petitioner could have been adjusted towards future rent. 9. When the matter was heard for some time on 22.4.2011, then this court had made a query from the learned counsel appearing on behalf of the petitioner that whether the petitioner was prepared to deposit the rent/ fair rent, as per his own estimation for the premises in question, and for that purpose, matter was adjourned enabling the learned counsel for the petitioner to seek instruction from his client. After obtaining instruction from his client, learned counsel for the petitioner submitted that the petitioner is prepared to deposit Rs.25,00,000/- (Twenty five lacs) towards arrear of rent for the premises in question, subject to final decision by the revisional authority. It was also conceded that the amount of Rs. 25, 00.000/- deposited by the petitioner may be withdrawn by the respondent no.5 or his authorized representative. 10. After having heard the parties at length and on consideration of materials available on record and also taking into consideration the fair stand of the petitioner regarding payment/deposit of Rs. 25,00,000/- towards arrears of rent, this Court is of the considered opinion that orders impugned in the present form cannot be sustained in the eye of law. The Full Bench of our own High Court in the case of Dr. 25,00,000/- towards arrears of rent, this Court is of the considered opinion that orders impugned in the present form cannot be sustained in the eye of law. The Full Bench of our own High Court in the case of Dr. Sachidanand Sinha V/s.The Collector, Patna and others (supra) has laid down the law in paragraph 24 of the said judgment, which is reproduced hereinbelow: "24. Accordingly, the question referred to the Full Bench is answered as follows :- "(1) Whenever the tenant prefers an appeal against an order of the Controller determining fair rent in respect of any building or premises or makes an application for revision to the Commissioner against the order of the appellate authority he is required to deposit the rent at the rate determined by the Controller month to month by the fifteenth day of the following month, together with arrears, if any, during the pendency of the appeal or revision, as the case may be." "(2) The appellate authority or the Commissioner has to hear both the parties to determine as to whether the tenant has complied with the requirement of sub-section (1) of section 16 of the Act. If it is found that the tenant has not deposited the arrears of rent at the rate determined by the Controller, then the appellate authority or the Commissioner has to direct the tenant to deposit the said amount within the time fixed by the appellate authority or the Commissioner, as the case may be , and to direct to go on depositing the rent month to month by the fifteenth day of the following month at the rate determined by the Controller." "(3) If there is non-compliance of the order passed by the appellate authority or the Commissioner in exercise of the power under sub-section (2) of section 16, then the defence against the fair rent order has to be struck off and the appeal or revision has to be heard and disposed of under section 24 or 26 as if the tenant had not put up any defence against the claim of the rate of rent by the landlord before the Controller." 11. On examination of the aforesaid decision of the Full Bench, it is apparent that the impugned order dated 2.11.2004 (Annexure-6) passed by the respondent Commissioner is apparently in the teeth of the aforesaid judicial pronouncement. On examination of the aforesaid decision of the Full Bench, it is apparent that the impugned order dated 2.11.2004 (Annexure-6) passed by the respondent Commissioner is apparently in the teeth of the aforesaid judicial pronouncement. Therefore, it has to be set aside and it is ordered accordingly. Due to non-compliance of aforesaid order dated 2.11.2004, the revision application filed by the petitioner was dismissed on 7.12.2004 and prayer for restoration of that application was rejected by the impugned order dated 31.1.2006. As the original order dated 2.11.2004 (Annexure-6) has been set aside by me, therefore, sub-sequent order dated 31.1.2006 (Annexure-7) cannot be sustained in the eye of law and accordingly, order dated 31.1.2006 (Annexure-7) is also set aside by this Court. However, the present order is subject to deposit of Rs. 25,00,000/- by the petitioner within a period of four weeks from today in the court of respondent no.2- Commissioner. If such a deposit is made by the petitioner within the time prescribed by this Court, then respondent no.5 or his authorized representative would be entitled to withdraw the aforesaid amount, after obtaining permission from the revisional authority. The respondent no.2, thereafter shall be obliged to consider the revision application filed on behalf of the petitioner on its own merit without compelling the petitioner to comply the mandate of section 16 of the Act. Learned counsel for the petitioner as also respondent no.5 have assured this Court that they will fully cooperate for early disposal of revision case on its own merit. Respondent Commissioner shall make all endeavour for deciding the revisional application on its own merit within a period of four months from the date of deposit of Rs. 25,00,000/- by the petitioner. 12. It is made clear that if the petitioner does not deposit the aforesaid amount of Rs. 25,00,000/-(Twenty five lacs) within the period prescribed by this Court, then it shall be construed that the writ petition filed by the petitioner has finally been rejected by this Court. 13. With the aforesaid observations and directions, the writ petition stands allowed. No costs.