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2017 DIGILAW 1757 (JHR)

Suresh Kumar Agarwal v. State of Jharkhand

2017-10-10

RAJESH SHANKAR

body2017
JUDGMENT : RAJESH SHANKAR, J. The present writ petition has been filed for issuance of appropriate direction upon the Circle Officer, Gamharia (respondent no. 4 to the writ petition) restraining him from taking possession of the shop premises situated at NAC Ward No. 05, Thana No. 29, Old Plot No. 1142(A)(B), New Plot Nos. 1273 and 1274, Old Khata No. 42 and New Khata No. 59, pursuant to notice dated 04.10.2017 (Annexure-5 to the writ petition). It has further been prayed for issuance of direction upon the Deputy Commissioner, Seraikella Kharsawan to register the appeal filed by the petition on 18.09.2017 under Section 36 of the Jharkhand Building (Lease, Rent and Eviction) Control Act, 2011 (hereinafter referred to as “the Act”) which has not been entertained by the office of the Deputy Commissioner, Seraikella Kharsawan-cum-Appellate Authority under the Act till date. It has also been prayed for restraining the respondents from taking possession of the shop premises under Section 39 of the said Act till disposal of the appeal filed by the petitioner on 18.09.2017 in the court of Deputy Commissioner-cum-Appellate Authority under the Act. 2. Mr. V.P. Singh, the learned Senior Counsel for the petitioner submits that the respondent nos. 5 and 6 filed Eviction Case No. 01 of 2016 in the court of Sub-Divisional Officer, Seraikella against the petitioner for evicting him from the shop premises situated at NAC Ward No. 05, Thana No. 29, Old Plot No. 1142(A)(B), New Plot Nos. 1273 and 1274, Old Khata No. 42 and New Khata No. 59. The Rent Controller-cum-Sub-Divisional Officer, Seraikella vide order dated 01.09.2017 decided the case in favour of the respondent nos. 5 and 6 and directed the petitioner to hand over the possession of the shop premises in question within a period of fifteen days. It is further submitted by the learned Senior Counsel for the petitioner that since the order dated 01.09.2017 was not passed by the Rent Controller-cum-Sub-Divisional Officer, Seraikella in open court, the petitioner came to the knowledge of the order on 14.09.2017 and thereafter, he immediately filed an appeal in the court of Deputy Commissioner, Seraikella Kharsawan-cum-Appellate Authority under the Act, on 18.09.2017. It is also submitted that the office of the Deputy Commissioner-cum-Appellate Authority under the Act has not yet registered the said appeal and the same is lying idle in the said office. It is also submitted that the office of the Deputy Commissioner-cum-Appellate Authority under the Act has not yet registered the said appeal and the same is lying idle in the said office. Sub-section (1) of Section 39 of the Act clearly mandates that the execution of the order of the Controller under the Act can be done where no appeal against the order passed by the Controller has been preferred by aggrieved person under sub-section (1) of Section 36 of the Act. Since the present appeal has been filed within a period of four days from the date of passing of the order dated 14.09.2017 of the Sub-Divisional Officer-cum-Rent Controller, the impugned notice dated 04.10.2017 issued by the Circle Officer, Gamharia is also contrary to the provisions of law. Under the said circumstance, the impugned notice dated 04.10.2017 (Annexure-5 to the writ petition) issued by the Circle Officer, Gamharia directing the petitioner to hand over the possession of the shop premises to the respondent nos. 5 and 6 by 11.10.2017, is not justified. 3. Mr. Vineet Prakash, the learned JC to SC (L&C), submits that since the Sub-Divisional Officer-cum-Rent Controller, Seraikella passed the order under Section 19 of the Act on 01.09.2017 and the petitioner preferred the appeal on 18.09.2017 i.e., after a period of fifteen days, the Circle Officer, Gamharia has rightly issued the notice dated 04.10.2017 directing the petitioner to vacate the shop in question and to hand over the possession to the respondent nos. 5 and 6. 4. Having heard the learned counsel for the parties and on going through the materials placed on record, it appears that the petitioner has made limited prayer in the writ petition seeking protection against the impugned notice dated 04.10.2017 (Annexure-5 to the writ petition), whereby he has been directed by the Circle Officer, Gamharia (respondent no. 4) to vacate the shop in question by 11.10.2017 and to hand over the possession of the same to the respondent nos. 5 and 6. It is further evident from the writ petition that the order under Section 19 of the Act was passed by the Sub-Divisional Officer, Seraikella-cum-Rent Controller under the Act on 01.09.2017. 4) to vacate the shop in question by 11.10.2017 and to hand over the possession of the same to the respondent nos. 5 and 6. It is further evident from the writ petition that the order under Section 19 of the Act was passed by the Sub-Divisional Officer, Seraikella-cum-Rent Controller under the Act on 01.09.2017. The petitioner has contended that the said order has not been passed by the Rent Controller in the open court and as such, the petitioner came to the knowledge of the said order on 14.09.2017 and within four days thereafter, he preferred appeal in the court of Deputy Commissioner, Seraikella Kharsawan being the Appellate Authority under the Act invoking the provisions of Section 36 of the Act. 5. Section 36 of the Act reads as under: 36. 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 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, (c) such appeal shall be decided within the six months. (3) Subject to the provision of sub-section (2), 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. 6. It is apparent from the aforesaid provision that any person aggrieved by the order passed by the Controller may prefer an appeal before the Appellate Authority within fifteen days from the date of receipt of such order by him. Since the petitioner has specifically pleaded that he received the order dated 01.09.2017 passed by the Sub-Divisional Officer, Seraikella-cum-Rent Controller on 14.09.2017 and preferred the appeal under Section 36 of the Act in the court of Deputy Commissioner, Seraikella Kharsawan-cum-Appellate Authority under the Act on 18.09.2017, in my considered view, the Circle Officer, Gamharia does not appear to be justified in issuing the impugned notice dated 04.10.2017. At least, he was required to ascertain the fact of filing of any appeal by the petitioner in the court of Deputy Commissioner, Seraikella Kharsawan. However, I refrain from further observing any factual details of the matter so that the case of either of the parties may not get prejudiced before the Appellate Authority under the Act. 7. Considering the aforesaid facts and circumstances, the Deputy Commissioner, Seraikella Kharsawan-cum-Appellate Authority under the Act is directed to register the appeal filed by the petitioner (if not already registered) and to take up the matter for consideration including the question of limitation on an early date. Till the said appeal is disposed of by the Deputy Commissioner, Seraikella Kharsawan-cum-Appellate Authority under the Act, the impugned notice dated 04.10.2017 (Annexure-5 to the writ petition) issued by the Circle Officer, Gamharia shall be kept in abeyance. 8. It is made clear that the present writ petition is confined to issue as discussed hereinabove and the Deputy Commissioner, Seraikella Kharsawan-cum-Appellate Authority under the Act is at liberty to dispose of the appeal in accordance with law. 9. In view of the aforesaid observation/direction, the writ petition is disposed of.