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2013 DIGILAW 311 (CHH)

NAMENDRA KUMAR v. GAURISHANKAR TAMRAKAR

2013-10-30

P.SAM KOSHY

body2013
ORDER 1. Heard. 2. The instant civil revision has been preferred under Section 23-E of the Chhattisgarh Accommodation Control Act, 1961 (henceforth "the Act of 1961") by the petitioners/non-applicants against the order dated 24.7.2012 (Annexure P-4) passed by the Rent Controlling Authority, Durg, (henceforth "the Authority"), in Case No.01/A-90/2008-09, whereby the Authority has allowed the application under Section 23-A of the Act of 1961 filed by respondent/applicant/landlord directing the non-applicant/tenant to vacate the suit premises within 30 days and to hand over the vacant possession of the same to applicant/landlord. 3. Facts, in brief, leading to the issuance of the impugned order are that initially the applicant/landlord had moved an application before the Authority in Case No.01-A-1990/2008-09, whereby the Authority had vide its order dated 8.9.2009 (Annexure P-2) allowed the application and directed the non-applicant/tenant for immediately evicting the premises and for giving the vacant possession of the same to applicant/landlord. Against the said order dated 8.9.2009, non-applicant/tenant (Late D.P. Yadav) had filed a civil revision before this Court under Section 23-E of the Act of 1961, which was registered as Civil Revision No. 89/2009. After considering the rival contentions of the parties, this Court vide its order dated 31.8.2010 (Annexure P-3) allowed the revision and had remanded the matter back to the Authority. The relevant operative part of the judgment dated 31.8.2010 passed in Civil Revision No.89/2009 is reproduced herein for ready reference:- "(19) In view of what has been held above, it is apparent that the proceedings taken and the order passed by the RCA suffers from the patent and manifest error of procedure and exercise of jurisdiction. The entire proceeding is dehors the scheme of enquiry contemplated under the various provisions contained in the Sections under chapter III A of the Act, 1961. The impugned order thus deserves to be and is hereby set-aside. (20) The revision is allowed, the matter is remanded back to the Rent Controlling Authority to grant opportunity to the tenant to file his reply and thereafter decide the eviction application in accordance with law. In the facts and circumstances of the case it is directed that the RCA shall complete the proceedings within a period of six months from the date of presentation of certified copy of this order before the authority." Thereafter, the matter was remanded back to the Authority. In the facts and circumstances of the case it is directed that the RCA shall complete the proceedings within a period of six months from the date of presentation of certified copy of this order before the authority." Thereafter, the matter was remanded back to the Authority. Subsequently, after the matter was remanded back, notice was served upon non-applicant/tenant and he had given his appearance before the Authority and had also submitted a detailed reply to the application filed by applicant/landlord. Pending the said application before the Authority, the original tenant, namely D.P. Yadav, had expired and subsequently vide order dated 9.8.2011, substitution of legal representatives (the present petitioners) of Late D.P. Singh, was made and they were brought on record and notices were sent to them also. After the evidence was closed, the Authority vide its order dated 9.7.2012, on the specific submissions made by both the parties that they do. not want to adduce any further evidence and do not want to place any more documents on record, and on their request for fixing the case for final hearing, proceeded further and, after hearing both the parties, the impugned order dated 24.7.2012 (Annexure P-4) has been passed by the Authority. Against the said order dated 24.7.2012 (Annexure P-4), the petitioners in the instant civil revision, preferred an appeal before District Judge, Durg, under the provisions of Section 31 of the Act of 1961. The learned District Judge also after considering the contentions raised by both the parties, rejected the appeal of the appellants-tenants vide its order dated 2.11.2012 (Annexure P-1). Subsequent to the order passed by District Judge, Durg, the appellants/petitioners has now preferred the instant civil revision again under Section 23E of the Act of 1961 challenging the order dated 24.7:2012 (Annexure P-4). The instant civil revision being filed at a belated stage, was filed supported with an affidavit filed under Section 5 of the Limitation Act, and this Court vide its order dated 9.4.2013 had condoned the delay in filing of the civil revision and proceeded further for final adjudication of the same. 4. Mr. B.P. Sharma, learned counsel for the petitioners, at the outset, itself made a submission before this Court that he does not intent to challenge the order dated 2.11.2012 (Annexure P-1) passed in an inadvertent Misc. Civil Appeal No. 13/2012 by District Judge, Durg. The submission of Mr. 4. Mr. B.P. Sharma, learned counsel for the petitioners, at the outset, itself made a submission before this Court that he does not intent to challenge the order dated 2.11.2012 (Annexure P-1) passed in an inadvertent Misc. Civil Appeal No. 13/2012 by District Judge, Durg. The submission of Mr. Sharma is that the order of learned District Judge, Durg, admittedly is without jurisdiction and, therefore, the same being without jurisdiction is a nullity in the eyes of law and has to be ignored, and for practical purposes, the order dated 24.7.2012 passed by the Authority should be considered as the order which is under challenge in the instant civil revision. The main ground of challenge raised by Mr. Sharma for challenging the order dated 24.7.2012 is that, firstly, the said order reflects as if it has been passed against a dead person because the order dated 24.7.2012 shows the name of non-applicant to be that of D.P. Yadav @ G.P. Yadav who has already died and, therefore, the order could not have been passed against a dead person. Secondly, that the order is bad in law for the reasons that the Authority has committed a procedural flaw in the course of deciding the matter in as much as the Authority has not granted an opportunity to the legal representatives of Late D.P. Yadav to file reply. Lastly, that the Authority has not framed issues and has also not followed the basic principle and procedure of law in deciding the dispute between the parties in as much as the impugned order is not a speaking order. Mr. Sharma, learned counsel for the petitioners, has also referred to the procedure prescribed to be followed by the Authority while deciding a case under the Act of 1961. For ready reference, Section 23-D of the Act of 1961 is reproduced below:- "23-D. Procedure to be followed by Rent Controlling Authority or grant of leave to tenant to contest.- (1) Where leave is granted to the tenant to contest the application, the Rent Controlling Authority shall commence the hearing of the application as early as practicable and decide the same, as far as may be, within six months of the order of granting of leave to the tenant to contest application. (2) The Rent Controlling Authority shall, while holding an enquiry in a proceeding to which this Chapter applies, follow as far as practicable, the practice and procedure of a Court of Small Causes including the recording of evidence under the Provincial Small Cause Courts Act, 1887 (IX of 1887). The Rent Controlling Authority shall as far as possible, proceed with the hearing of the application from day to day. (3) In respect of an application by a landlord it shall be presumed, unless the contrary is proved, the requirement by the landlord with reference to clause (a) of clause (b), as the case may be of Section 23-A is bona fide." 5. Per contra, Mr. Prafull Bharat, learned counsel for the respondent, submits before this Court that the Authority has not committed any error of law, that the Authority has given an opportunity of hearing to the petitioners/non-applicants and that the Authority has only proceeded further to decide the matter vide order dated 24.7.2012 after both the parties in the dispute had admitted before the Authority that they do not want to lead any evidence and that the matter may be closed for final arguments and, in addition, the non-applicants had also got the opportunity to cross-examine the applicant/landlord and which the non-applicants/tenants had done, and it was only thereafter that the Authority proceeded to decide the matter and passed the impugned order dated 24.7.2012. Therefore, the impugned order dated 24.7.2012 does not call for any interference. Learned counsel for the respondent also vehemently submits that the conduct of petitioners/tenants itself shows the mala fides" and the act on the part of the tenants in filing of appeal under Section 31 of the Act of 1961 before District Judge, Durg, challenging the order dated 24.7.2012 itself, establishes the misuse of the process of law. He further submits that much time was consumed in all these proceedings and, during all these periods; the tenants were enjoying the suit premises and the landlord was facing considerable inconvenience on account of these reasons. In response to the contention of Mr. Sharma, learned counsel for the petitioners, that the order has been passed against a dead person, Mr. He further submits that much time was consumed in all these proceedings and, during all these periods; the tenants were enjoying the suit premises and the landlord was facing considerable inconvenience on account of these reasons. In response to the contention of Mr. Sharma, learned counsel for the petitioners, that the order has been passed against a dead person, Mr. Prafull Bharat, learned counsel for the respondent, says that the same could be a, typographical error for the reason that the legal representatives of Late D.P. Yadav have been brought on record as early as in the month of August, 2011 itself and that the legal representatives have also entered appearance before the Authority and have been contesting the case and, therefore, on that count, the order cannot be said to have been passed against a dead person. 6. After hearing the counsel for the parties, as regards the first objection of Mr. B.P. Sharma, learned counsel for the petitioners, that the order has been passed against a dead person, the same is not sustainable for the reason that admittedly the legal representatives of Late D.P. Yadav has been brought on record and it was the legal representatives who were pursuing the case subsequent to the death of D.P. Yadav and, therefore, only because in the cause title the name of the dead person has been reflected, the objection raised by Mr. Sharma cannot accepted to be vital enough for setting aside the order of the Authority. 7. Sharma cannot accepted to be vital enough for setting aside the order of the Authority. 7. As regards the second objection of the counsel for the petitioners that they have not given an opportunity by the Authority to file reply, the said objection also cannot be sustained in the eyes of law for the reason that from the order-sheet it is evidently clear that immediately after the death of D.P. Yadav, substitution application was moved and, the substitution application having been allowed, the legal representatives of Late D.P. Yadav were brought on record and notices were issued to these legal representatives of Late D.P. Yadav and the same having been served upon them, they had also entered appearance before the Court below and have been participating in the proceedings ever since then and at no point of time had the Authority ever stopped the legal representatives of Late D.P. Yadav from filing the reply if at all they had any in addition to the reply what had been filed by Late D.P. Yadav. For the said reason also, the second objection of Mr. B.P. Sharma of not getting opportunity of filing reply, is not sustainable. 8. Now we shall deal with the third objection of Mr. B.P. Sharma, learned counsel for the petitioners, dealing with procedural lapse committed by the Authority in as much as not framing issues and not passing a speaking order as it requires under the procedure prescribed. Considering the rival contentions raised by counsel appearing for either side and on perusal of the impugned order dated 24.7.2012, it is evidently clear that the Authority after discussing the facts and circumstances of the case straightaway in a one line order decided the matter holding that the applicant/landlord require the suit premises for bona fide need and that for exercising the powers conferred under the Act of 1961 and as ordered, the non-applicants/tenants to vacate the premises within 30 days and to hand over the peaceful vacant possession of the suit premises to the applicant/landlord. 9. 9. The fact which should have been borne in mind by the Authority was the fact that in the earlier round of litigation when the order (Annexure P-2) was passed on 8.9.2009, while deciding the case the Authority had framed specific issues which were to be decided in the course of adjudicating the dispute between the landlord and the tenants and had thereby proceeded while passing the order dated 8.9.2009. However, the said order on being put to test in Civil Revision No.89/2009, was set-aside and quashed specifically for the reason that the Authority had not decided the matter in accordance with the procedure prescribed. That apart it is the basic requirement of any authority while deciding a matter to pass a speaking order so that the rival contentions and submissions raised by either party to the suit or case can be considered and the reasons can be given for each of their submissions and contentions. For the purpose of passing a speaking order, it becomes a necessity that the issue should be framed and the same is decided giving reasons. In the instant case while passing the order dated 8.9.2009, the then Rent Controlling Authority had already framed issues and proceeded as it was incumbent upon the subsequent Rent Controlling Authority also, when the matter was remanded back, to have framed issues in respect of the disputed questions involved and to have dealt with the same by giving specific reasons and finding on those issues. For this simple reason itself the impugned order is bad in law, which cannot be said to be legal and proper. 10. Even otherwise the impugned order on its bare perusal would reflect that it is a totally one line order without any application of mind on the dispute between the parties and the issues raised by either side in the dispute. Recently, Hon'ble Supreme Court in the case of Ravi Yashwant Bhoir Vs. District Collector, Raigad and others 2012 (4) SCC 407 , in para 42, has held that:- "42. ......... Recently, Hon'ble Supreme Court in the case of Ravi Yashwant Bhoir Vs. District Collector, Raigad and others 2012 (4) SCC 407 , in para 42, has held that:- "42. ......... The expanding horizon of the principles of natural justice provides for requirement to record reasons as it is now regarded as one of the principles of natural justice, and it was held in the above case that except in cases where the requirement to record reasons is expressly or by necessary implication dispensed with, the authority must record reasons for its decision." Similarly, in the case of Sant Lal Gupta Vs. Modem Coop. Group Housing Society Ltd. 2010 (13) SCC 336 , Hon'ble Supreme Court has held in para 27 as follows:- "27. It is a settled legal proposition that not only administrative but also judicial orders must be supported by reasons recorded in it. Thus, while deciding an issue, the court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice delivery system, to make it known that there had been proper and due application of mind to the issue before the court and also an essential requisite of the principles of natural justice. '3. ... The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the court concerned had really applied its mind.' The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is the principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected. 11. Recording of reasons is the principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected. 11. Right to reason is an indispensable part of a sound judicial system and the requirement for giving reasons is to indicate an application of mind by the authority and the affected person would also come to know as to why the matter has been decided against him. In the instant case, a bare perusal of the impugned order passed by the Authority would evidently show that the Authority was in a haste in deciding the matter and for the said reason, after recording the facts and circumstances of the case, has passed the impugned order by giving a one line order. A plain reading of the same itself evidently establishes that there is total non-application of mind by the Authority which was all the more required when it was already a matter which was remanded for deciding the matter in accordance with procedure prescribed and the requirement was that the Authority should, after recording the evidence of the parties, decide the application in accordance with the provisions of the Act of 1961 and when the said Act itself stipulates a procedure prescribed, the impugned order dated 24.7.2012 cannot be sustained and the same is accordingly set-aside. 12. Resultantly, the matter is once again remanded back to the Authority to the stage of final arguments, and after hearing the arguments of both, the parties the Authority shall pass an order afresh by considering the issues raised in the pleading by either side. 13. Since the matter has been pending before the different authorities and Courts for quite a considerable period of time, it is directed that the Rent Controlling Authority, Durg, shall decide the same within a period of 45 days from the date from which this order is placed before the Authority by either of the parties. 14. Registry of this Court is also directed to immediately send back the record of the instant case to the Authority concerned without any delay. 15. Accordingly, the civil revision is allowed and disposed of. No order as to costs. Revision Remanded.