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2022 DIGILAW 899 (JHR)

Swaroop Kumar Sethi v. State of Jharkhand

2022-07-21

RAJESH SHANKAR

body2022
JUDGMENT : 1. The present writ petition has been filed for quashing the order dated 04.01.2021 passed by the Commissioner, South Chotanagpur Division, Ranchi- the respondent no.2 in J.B.C. Revision Case No.69 of 2017, whereby the said revision filed by the petitioners has been dismissed, affirming the order dated 29.09.2017 passed by the respondent no.3. Further prayer has been made for issuance of direction upon the respondents not to give effect of the order dated 29.09.2017 passed by the Deputy Commissioner, Ranchi-respondent no.3 in J.B.C. Appeal No.25 R 15/2016-17, whereby the appeal filed by the respondent no.5 was allowed and the order dated 25.04.2016 passed by the Rent Controller-cum-Sub-Divisional Magistrate, Ranchi-respondent no.4 in J.B.C. Case No.29 of 2015 was set aside. The petitioners have also prayed for restraining the respondent no.4 from proceeding further with Case No. MP 17 of 2017, arising out of the order dated 29.09.2017 passed by respondent no. 3 in J.B.C. Appeal No.25R 15/2016-17, which has been affirmed vide order dated 04.01.2021 passed by the respondent no.2, as, according to the petitioners, both the orders are illegal and without jurisdiction, since initial proceeding itself was not maintainable in absence of the notification issued under section 1(3) Jharkhand Building (Lease, Rent & Eviction) Control Act, 2011 (hereinafter to be referred as ‘the Act, 2011’), which, in fact, came into force with effect from 15.04.2015. 2. The factual background of the case as stated in the writ petition is that the respondent no.5, claiming herself to be the owner-cum- landlady of a shop room, situated at Hariom Market, Din Bandhu Lane, Upper Bazar, Ranchi, filed an application under section 19(1)(c) & (d) of the Act, 2011 before the respondent no.4 on 17.10.2014 (admitted on 13.05.2015) against the petitioner no.1 on the ground of default of rent said to have been due since April 2011 and also on the ground of personal necessity. The petitioner no.1 filed an application before the respondent no.4 on 13.07.2015 for rejecting the application filed by the respondent no.5 being not maintainable, stating that the Act, 2011 was not brought into force in the State of Jharkhand, as necessary notification was not issued in the official gazette of the Government of Jharkhand under section 1(3) of the said Act. Thereafter, the petitioner no.1 also filed show cause reply disputing the claim of the respondent no.5. Thereafter, the petitioner no.1 also filed show cause reply disputing the claim of the respondent no.5. In the meantime, the petitioner no.2 sought permission to intervene in the matter, claiming to be in possession of the premises in question by virtue of a tenancy agreement dated 01.03.1995 entered between her and one with Chetan Sharma for a period of three years to be further extended on certain terms. Her intervention application was allowed on 28.10.2015 and she was made opposite party no.2 in J.B.C. Case no.29 of 2015 filed before the respondent no.4. The respondent no.5 did not choose to appear and examine herself as a witness in the said case, whereas the petitioners and their witnesses were examined and cross-examined. The said case was dismissed vide order dated 25.04.2016 passed by the respondent no.4. Aggrieved with the said order, the respondent no. 5 preferred an appeal before the respondent no.3 under section 36 of the Act, 2011, which was registered as J.B.C. Appeal No. 25 R 15 of 2016-17. The said appeal was allowed by the respondent no.3 vide order dated 29.09.2017, directing the petitioners to vacate and handover the possession of the premises in question within fifteen days from the date of passing of the order, failing which the respondent no.5 was given liberty to file an appropriate application before the respondent no.4 to get the petitioners evicted from the premises in question. Being aggrieved with the said order, the petitioners preferred revision vide J.B.C. Revision Case No. 69 of 2017 before the respondent no.2. In the meantime, the respondent no.5 filed an application for execution of order passed in J.B.C. Appeal No.25R 15/2016-17 before the respondent no.4 and consequently notice dated 16.10.2017 was issued to the petitioners. The petitioners, thereafter, filed a writ petition being W.P.(C) No. 1910 of 2018, which was disposed of vide order 24.04.2018, protecting the petitioners against any coercive step to be taken regarding eviction from the premises in question till disposal of revision filed before the respondent no.2. The said revision filed by the petitioners was finally dismissed by the respondent no.2 vide order dated 04.01.2021. Hence, the present writ petition. 3. The said revision filed by the petitioners was finally dismissed by the respondent no.2 vide order dated 04.01.2021. Hence, the present writ petition. 3. Learned counsel for the petitioners submits that Chetan Sharma- the actual landlord of the petitioners, had filed Partition Suit No.579 of 2010 against the respondent no.5, which was partly decreed in his favour vide judgment dated 29.04.2015 passed by the Civil Judge (Sr. Division)-VIII, Ranchi to the extent that he was made entitled to 1/9th share of the suit property. The said judgment goes to establish the fact that Chetan Sharma has got concern with the premises in question and as such he is the landlord of the petitioners, however, the respondent no.4 in the order dated 25.04.2016 observed that it was not clear as to whether he got any share in the property. Moreover, the finding of the respondent no.2 that the proceeding was lawfully started on 13.05.2015 is in contravention of the order dated 15.04.2015 passed by a Bench of this Court in W.P.(C) No.5499 of 2014, whereby all the Sub Divisional Officers of the State of Jharkhand were directed not to exercise their power under the Act, 2011 for the reason that the said Act was not brought into force by issuing official gazette notification as mandated under Section 1(3) of the said Act. Hence, the application filed by the respondent no.5 could not have been admitted on 13.05.2015 and decided on 25.04.2016 by the respondent no.4, since the notification of Urban Development & Housing Department regarding clarification to avoid ambiguity in application of the old Jharkhand Building (Lease, Rent & Eviction) Control Act, 2000 and the new Act, 2011 was published on 16.05.2016. It is further submitted that the respondent no.5 chose wrong forum by filing an application before the respondent no.4 on 17.10.2014, as the Act, 2011 was not notified on that date. Moreover, the respondent no.2 wrongly shifted the burden to prove existence of tenancy on the petitioners who were opposite parties in the said eviction case, though the said burden was on the party who was seeking eviction. It is also submitted that the respondent no.5 had failed to establish the relationship of landlord and tenant between the parties as also the fact that there was a default in making payment of rent, since neither she examined herself nor produced any evidence or witnesses in support of her claim. It is also submitted that the respondent no.5 had failed to establish the relationship of landlord and tenant between the parties as also the fact that there was a default in making payment of rent, since neither she examined herself nor produced any evidence or witnesses in support of her claim. It is further submitted that both the respondent nos.2 and 3 wrongly shifted the burden of proof upon the petitioners, though the default on the part of the petitioners in making payment of rent was required to be proved by the respondent no.5. It is further submitted that the existence of relationship of landlord and tenant is sine qua non to maintain an application for eviction under the Act, 2011 and since the same has not been proved, both the orders passed by the appellate as well as revisional authorities deserve to be set aside. 4. Learned counsel for the respondent no.5 submits that there are concurrent finding of facts by the three courts regarding existence of relationship of landlord and tenant between the respondent no.5 and the petitioners. Moreover, there is admission of the petitioners regarding non-payment of rent to the deponent i.e. the landlady hence no interference is warranted against finding of facts. The writ petitioners have suppressed material fact that the primary objection of the petitioner no.1 dated 13.07.2015 filed before the House Rent Controller was rejected on 26.02.2016 against which he did not prefer any appeal or revision. It is further submitted that the agreement dated 01.03.1995 is a manufactured document created only for the purpose of frustrating the eviction case filed against the petitioner no.1. The respondent no.5 is the landlady of the premises in question, who had inducted the petitioner no.1 as a tenant in the said premises on payment of monthly rent. The House Rent Controller recorded finding that there appeared to be a relationship of landlord and tenant between the respondent no.5 and the petitioners. Once such a finding was recorded, the House Rent Controller ought to have granted a decree for eviction on admission of the petitioners that they were not paying rent to the respondent no.5, rather to one Chetan Sharma, who was set up as landlord by them. Once such a finding was recorded, the House Rent Controller ought to have granted a decree for eviction on admission of the petitioners that they were not paying rent to the respondent no.5, rather to one Chetan Sharma, who was set up as landlord by them. The application of the respondent no.5 filed for eviction of the petitioners was instituted and registered on 13.05.2015, hence it was rightly adjudicated in terms of the Jharkhand Building (Lease, Rent and Eviction) Control Act, 2011 which came into force with effect from 15.04.2015. It is further submitted that the petitioners did not prefer any cross appeal or objection against the findings recorded against them regarding maintainability of the case under the provisions of the Act, 2011 as well as existence of relationship of landlord and tenant between the respondent no.5 and the petitioners. Hence, they should be estopped from raising the same at this stage. It is also submitted that the House Rent Controller itself had recorded its finding that there is relationship of landlord and tenant between the respondent no.5 and the petitioners. The petitioners themselves claimed that they were paying rent to one Chetan Sharma and not to the respondent no.5, hence they admitted that they defaulted in payment of rent. Once they themselves admitted regarding non-payment of rent to the respondent no.5, no further proof regarding default of payment of rent was required. The petitioners never questioned the finding recorded by the House Rent Controller that there appeared to be a relationship of landlord and tenant between the petitioners and the respondent no.5. Moreover, the judgment passed in Partition Suit No. 579 of 2010 has no relevance in the proceeding under the Act, 2011. It is a settled law that even single co-sharer in absence of others can maintain a suit for eviction of a tenant. On perusal of the judgment passed in the said suit, it would be evident that it is merely a preliminary decree, declaring only 1/9th share to said Chetan Sharma in respect of the joint family properties. It is also submitted that the judgment rendered by this Court in W.P.(C) No.5668 of 2018 does not apply to the facts of the present case in view of the fact that the case before the House Rent Controller was admitted for hearing on 13.05.2015. 5. It is also submitted that the judgment rendered by this Court in W.P.(C) No.5668 of 2018 does not apply to the facts of the present case in view of the fact that the case before the House Rent Controller was admitted for hearing on 13.05.2015. 5. Heard the learned counsel for the parties and perused the materials available on record. The respondent no.5 filed Eviction Case No.29 of 2014, which was referred as J.B.C. Case no.29 of 2015 after admitting it on 13.05.2015. The said case was filed for eviction of the petitioner no.1 on the ground of default of payment of rent as well as for personal necessity wherein subsequently the petitioner no.2 was impleaded as second opposite party. The said claim of the respondent no.5 was objected by the petitioners on the ground that they were tenants of one Chetan Sharma who was the real owner of the said premises and as such there was no tenant and landlord relationship between the petitioners and the respondent no.5. The respondent no.4 vide order dated 25.04.2016 though observed that prima facie there appeared to be landlord-tenant relationship with the petitioners and the respondent no.5, however, the eviction suit filed by the respondent no.5 was dismissed on the ground that she failed to produce any evidence or witness in support of her case. The respondent no.5, thereafter, preferred an appeal before the respondent no.3 which was allowed vide order dated 29.09.2017, observing as under:- “Having heard both the parties and on perusal of the impugned order, I find that, the learned court below has held therein that the respondent has failed to prove that Chetan Sharma is the owner or landlord of the premises in question and moreover the respondent before this court also has failed to prove that the said Chetan Sharma is the owner and landlord of the premises in question. It is admitted by the respondents themselves that they use to pay rent to the said Chetan Sharma and in such circumstances, no further proof is required with respect of the fact that the respondent has defaulted payment of rent to the appellant with respect of the premises in question. It is admitted by the respondents themselves that they use to pay rent to the said Chetan Sharma and in such circumstances, no further proof is required with respect of the fact that the respondent has defaulted payment of rent to the appellant with respect of the premises in question. Hence under the facts and circumstances mentioned above, I find that the learned court below has erred in holding that the appellant has not been able to prove that the respondent has defaulted in payment of rent to the appellant.” 6. Being aggrieved with the said order dated 29.09.2017, the petitioners preferred revision before the respondent no.2 being JBC Revision Case No.69 of 2017. The said revision case was dismissed on 4.1.2021, affirming the said order dated 29.09.2017 passed by the respondent no.3 with an observation that the respondent no.4 had initiated proceeding under the Act, 2011 on 13.05.2015 which was after the date of notification enforcing the Act, 2011 and thus the objection of the petitioners with respect to maintainability of the suit was not legally tenable. It was further held that though as per the petitioners, Chetan Sharma was the landlord and they were his tenant and there was a rent agreement between them, however they failed not only to prove the said fact but also failed to produce him as a witness to testify their claim. It was also observed in the said order that the petitioners could not establish that they were the tenants of said Chetan Sharma. The petitioners could not even adduce evidence to show that they were paying rent to Chetan Sharma. 7. According to learned counsel for the petitioners, the courts below failed to appreciate that the eviction suit filed by the petitioners was not maintainable in view of the fact that on the date of filing of the aforesaid eviction suit, the State Government had not notified the Act, 2011. He has further contended that the petitioners were tenant of Chetan Sharma and as such there is no landlord-tenant relationship between the respondent no.5 and the petitioners. 8. The learned counsel for the petitioners has put reliance on the judgment of the Hon’ble Supreme Court rendered in the case of Radha Devi Vs. He has further contended that the petitioners were tenant of Chetan Sharma and as such there is no landlord-tenant relationship between the respondent no.5 and the petitioners. 8. The learned counsel for the petitioners has put reliance on the judgment of the Hon’ble Supreme Court rendered in the case of Radha Devi Vs. Deep Narayan Mandal & Others reported in (2003) 11 SCC 759, wherein it was held that to succeed in the eviction suit under the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982, the landlord of the said case was required to prove contract of tenancy between her and the tenant and also the ground on which the eviction was sought. It was observed that in such a suit, the Rent Court was not required to go into the serious question of title otherwise the purpose of the Act would stand frustrated. 9. Learned counsel for the petitioners has put further reliance on the judgment of the Hon’ble Supreme Court rendered in the case of Rajendra Tiwary & Others Vs. Basudeo Prasad & Another, reported in (2002) 1 SCC 90 , wherein it has been held that the sine qua non for granting the relief in the suit under the Bihar Building (Lease, Rent & Eviction) Control Act, 1982 is that the relationship of “landlord and tenant” between the plaintiffs and the defendant should exist. The scope of the enquiry before the courts is limited to the question as to whether the grounds for eviction of the defendant are made out under the said law. The question of title of the parties over the suit premises is not relevant having regard to the width of the definition of the terms “landlord” and “tenant” as per clauses (f) and (h), respectively, of Section 2 of the Act. 10. The judgment of the Hon’ble Supreme Court rendered in the case of Kasthuri Radhakrishnan Vs. M. Chinniyan, reported in (2016) 3 SCC 296 , has been relied upon by both the parties. In the said case it has been held that when the property forming the subject-matter of eviction proceedings is owned by several owners, every co-owner owns every part and every bit of the joint property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property so long as the property has not been partitioned. He can alone maintain a suit for eviction of the tenant without joining the other co-owners if such other co-owners do not object. 11. Further, so far as the scope of revisional jurisdiction of the High Court is concerned, the Hon’ble Supreme Court has held as under:- “27. So far as the issue pertaining to exercise of revisional jurisdiction of the High Court while hearing revision petition arising out of eviction matter is concerned, it remains no more res integra and stands settled by the Constitution Bench of this Court in [Hindustan Petroleum Corpn. Ltd. v. Dilbahar Singh, (2014) 9 SCC 78 : (2014) 4 SCC (Civ) 723]. R.M. Lodha, C.J., the learned Chief Justice speaking for the Bench held in para 43 thus : (SCC pp. 101-102) “43. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the first appellate court/first appellate authority because on reappreciation of the evidence, its view is different from the court/authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the court/authority below is according to law and does not suffer from any error of law. A finding of fact recorded by court/authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to reappreciate or reassess the evidence for coming to a different finding on facts. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to reappreciate or reassess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity.” 12. The Hon’ble Supreme Court has further held that in rent control legislation, the landlord can be said to be the owner if he is entitled in his own legal right, as distinguished from for and on behalf of someone else, to evict the tenant and then to retain control, hold and use the premises for himself. 13. In the present case, the contention of the respondent no.5 is that the respondent no.2 rejected the objection of the petitioners against maintainability of the eviction suit after appreciating the fact that the respondent no.4 had started the proceeding only after issuance of the notification under section 1(3) of the Act, 2011. It has further been contended that the petitioners were her tenants and had defaulted in payment of rent of the premises. 14. On appreciating the contentions of the learned counsel for the parties and on perusal of the order sheet of the eviction suit bearing J.B.C. Case No.29 of 2015 annexed as Annexure-D to the counter affidavit filed on behalf of the respondent no.5, it transpires that the respondent no.4 started the proceeding on 13.05.2015 by admitting the same and thereafter issued notice to the petitioner no.1. Thus, the proceeding was initiated after issuance of the notification under section 1(3) of the Act, 2011 on 15.04.2015. This Court finds no infirmity in the order of the respondent no.2 in rejecting the objection with respect to maintainability of J.B.C. Case no.29 of 2015 raised by the by the petitioners. Thus, the proceeding was initiated after issuance of the notification under section 1(3) of the Act, 2011 on 15.04.2015. This Court finds no infirmity in the order of the respondent no.2 in rejecting the objection with respect to maintainability of J.B.C. Case no.29 of 2015 raised by the by the petitioners. Even as per the clarification issued by the Urban Development and Housing Department, Government of Jharkhand vide notification dated 16.05.2016, the eviction case i.e. J.B.C. Case no.29 of 2015 filed by the respondent no.5 against the petitioners was not to be guided by the old law, as the same was admitted for hearing by the respondent no.4 on 13.05.2015 i.e. after coming into force of the new law with effect from 15.04.2015. Hence, the respondent no.4 rightly proceeded under the provisions of the new Act, 2011. 15. On bare perusal of the record, it appears that the respondent no.5 and one Panna Devi, wife of Laxman Sharma had purchased the land by virtue of a registered sale deed over which the premises in question is situated. The respondent no.5 is the natural mother of Chetan Sharma who had filed partition suit being Partition Suit No.579 of 2010, claiming that he was the adopted son of Panna Devi and as such he was entitled to get the share of Panna Devi being her sole legal heir and successor. The said partition suit was decreed in part holding, inter alia, that Chetan Sharma was only entitled to get 1/9th share of the property being the natural son of the respondent no. 5. It was further held that Chetan Sharma failed to establish that he is adopted son of Laxman Sharma. 16. It would, thus, be evident as per the finding of the respondent no.4 that there was a tenant-landlord relationship between the petitioners and the respondent no.5 and the said finding was not reversed by the appellate and revisional courts. The petitioners also accepted before the courts below that they were inducted as tenants of the said premises and had continuously paid rent to said Chetan Sharma. The petitioners, however, failed to produce documentary evidence before the courts below in support of their assertion that they had paid rent to Chetan Sharma. The petitioners also accepted before the courts below that they were inducted as tenants of the said premises and had continuously paid rent to said Chetan Sharma. The petitioners, however, failed to produce documentary evidence before the courts below in support of their assertion that they had paid rent to Chetan Sharma. The petitioners claimed before the respondent no.4 that the said premises was let out to the petitioner no.2 vide agreement dated 01.03.1995, however, the said agreement was doubted by the respondent no.4, since the stamp paper, on which the purported agreement was said to have been executed, was purchased subsequently on 08.03.1995. Though the petitioners claimed before the courts below that Chetan Sharma was the owner of the property in question and the rent agreement was executed between Chetan Sharma and petitioner no.2, yet they failed to examine Chetan Sharma in support of the said claim. On the other hand, from the registered sale deed annexed as Annexure-1/A (series), it is amply clear that the respondent no.5 is the co-owner of premises in question. 17. Thus, this Court is of the considered view that since the respondent no.5 is the co-owner of the premises in question and the petitioners themselves admitted in the proceedings before the courts below that they had occupied the premises as tenants, the respondent no.5 was entitled to file eviction suit against them to get back the possession of the tenanted premises. The petitioners also failed to show before the courts below that they had not defaulted in making payment of rent and hence there is no infirmity in the orders of the respondent no.2 and 3, directing the petitioners to vacate and handover the suit premises. Even if it is assumed that the petitioners were inducted as tenants in the said premises by Chetan Sharma, then also they are not entitled to any relief since the registered sale deed dated 25.03.1956 clearly suggests that the respondent no.5 is the co-sharer of the said property and in view of the judgment of the Hon’ble Supreme Court rendered in the case of Kasthuri Radhakrishnan (Supra.) she is legally entitled to get the petitioners evicted from the tenanted premises on their default in making payment of rent. 18. 18. In view of the aforesaid factual and legal position, this Court does not find any infirmity in the order dated 29.09.2017 passed by the respondent no.3 in J.B.C. Appeal No.25 R 15/2016-17 and the order dated 04.01.2021 passed by the respondent no.2 in J.B.C. Revision Case No.69 of 2017. 19. The writ petition is, accordingly, dismissed.