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2023 DIGILAW 757 (JHR)

Rounak Jaiswal v. State of Jharkhand

2023-06-14

RAJESH SHANKAR

body2023
JUDGMENT : The present writ petition has been filed for quashing the order dated 16.12.2021 passed by the respondent no. 2 – the Commissioner, North Chotanagpur Division, Hazaribagh in House Rent Control Revision No. 06 of 2020, whereby the order dated 25.04.2018 passed by the respondent no. 4 – the Sub-Divisional Officer-cum-House Rent Controller, Dumri in H.R. Case No. 05/2017-18 and the order dated 27.09.2019 passed by the respondent no. 3 – the Deputy Commissioner-cum- District Magistrate, Giridih in H.R.C Appeal No. 01/2018 have been set aside. 2. Learned Senior Counsel for the petitioner submits that the lands appertaining to R.S. Plot No. 641, Khata No. 7/2 situated at village Isri, P.S. Dumri (now Nimiaghat), District- Hazaribagh (now Giridih), measuring an area of 1.53 acres was recorded in the name of Khuda Bux Khan during the last survey settlement. Khuda Bux Khan had surrendered the said land to the ex-landlord and thereafter the said land along with 6 decimals land of Plot No. 642 of the same khata was settled to Laljee Bhagat by putting him in khas possession of the same. A raiyati Hukumnama dated 14.03.1930 was also issued by the exlandlord in favour of Laljee Bhagat. 3. It is also submitted that after vesting of Zamindari, the State of Bihar recognized Laljee Bhagat as raiyat of the said land who paid rent of the same till his life time. After death of Laljee Bhagat, his sons namely, Ramesh Bhagat and Dinesh Bhagat paid rent till their life time. It is further submitted that Laljee Bhagat had constructed several rooms on the said land and subsequently Dinesh Bhagat S/o - Laljee Bhagat let out some rooms of his share to different persons including the father of the respondent no. 5 namely, Murlidhar Swarnkar, who had given the premises on rent consisting of rooms for residence and one shop measuring an area of 1260 sq.ft. on monthly rent of Rs. 295/- and the said rent was realized from him during his life time and after his death from the respondent no. 5 till September, 2017. 4. Learned Senior Counsel for the petitioner further submits that the petitioner filed an application before the respondent no. 4 under Sections 9 to 12 of the Jharkhand Building (Lease, Rent & Eviction) Control Act, 2011 for fixing fair rent of the aforementioned premises which was registered as H.R. Case No. 05/2017-18. The respondent no. 5 till September, 2017. 4. Learned Senior Counsel for the petitioner further submits that the petitioner filed an application before the respondent no. 4 under Sections 9 to 12 of the Jharkhand Building (Lease, Rent & Eviction) Control Act, 2011 for fixing fair rent of the aforementioned premises which was registered as H.R. Case No. 05/2017-18. The respondent no. 5 appeared and filed his show cause reply stating that there was no relationship of landlord and tenant between the petitioner and the respondent no. 5 as well as that no rent with respect to the said premises was ever paid by the respondent no. 5 to the petitioner. He further stated that he was the absolute owner of the aforementioned premises. The respondent no. 4 passed an order on 25.4.2018 fixing rent for the shop area and residential area as well as directing the parties to execute lease/rent agreement with respect to the said premises for a period of 12 months in the light of rent fixed by the said court. The respondent no. 5 filed H.R.C. Appeal No. 01 of 2018 before the respondent no. 3 which was dismissed vide order dated 27.09.2019 against which the respondent no. 5 filed House Rent Controller Revision No. 06 of 2020 before the respondent no. 2 who allowed the said revision filed by the respondent no. 5 vide order dated 16.12.2021 setting aside the orders passed by the respondent no. 4 and the respondent no.3. 5. Learned counsel for the respondent no. 5 submits that after death of Khuda Bux Khan, 4 decimals land of Plot No. 641, Khata No. 7 was settled to Dhotan Sao and a Basgit Parcha with respect to the said land was also issued by the State Government in his name. He continued in possession of the same till his death and thereafter his sons namely, Murlidhar Swarnkar, Jagarnath Swarnkar, Sitaram Swarnkar and Basudeo Swarnkar came in possession of the said land. 6. It is further submitted that in the family arrangement among four sons of Dhotan Sao, the said land came in the share of Murlidhar Swarnkar, who constructed a shop over the same for earning his livelihood and after his death, the said shop was jointly inherited by his two sons including the respondent no. 5 who are continuing in possession thereof being the rightful owners. 7. 5 who are continuing in possession thereof being the rightful owners. 7. It appears that the revisional authority in its order dated 16.12.2021 while appreciating the matter, framed the following issues for determination:- (i) Whether the rent fixed (wrongly mentioned as enhanced) by the House Rent Controller was in accordance with the provisions of Jharkhand Building (Lease, Rent & Eviction) Control Act, 2011. (ii) Whether the order of the respondent no. 4 suffered from any infirmity. (iii) Whether there existed relationship of landlord and tenant between the petitioner and the respondent no. 5. (iii) Whether order of the respondent no. 4 was based on facts. (iv) Whether due opportunity was given to the respondent no. 5 by the respondent no. 4 before passing the order. 8. The revisional authority has observed that the respondent no. 5 (opposite party in H.R. Case No. 5/2017-18) in his show cause reply dated 13.12.2017 had claimed that the premises in question was recorded in the name of Khuda Bux Khan who had settled the land in question to the grandfather of the respondent no.5. The respondent no. 5 had further claimed that in fact he was the tenant of the petitioner – Rounak Jaiswal in his other premises for which he regularly paid rent either to him or his father. The respondent no. 5 had also claimed in his show cause reply that the said premises was already vacated by him prior to death of his father Murlidhar Swarnkar. 9. Moreover, while appreciating the respective contentions of the parties, the revisional authority vide order dated 16.12.2021 has held that the respondent no. 4 did not provide opportunity for adducing evidence to the respondent no. 5 in support of his claim that there was 4 no tenant- landlord relationship between him and the petitioner for the premises in question. Adducing of evidence and cross-examination of the same by the respective parties was also not done before the respondent no. 4. It has further been held by the revisional authority that the relationship of landlord and tenant was not established by the respondent no. 4. 10. Learned Senior Counsel for the petitioner submits that the evidences were laid by the petitioner before the appellate authority particularly the rent receipts issued in favour of the respondent no. 5. 11. The said fact is not clear from the order dated 27.09.2019 passed by the respondent no. 4. 10. Learned Senior Counsel for the petitioner submits that the evidences were laid by the petitioner before the appellate authority particularly the rent receipts issued in favour of the respondent no. 5. 11. The said fact is not clear from the order dated 27.09.2019 passed by the respondent no. 3 which, however, mentions the fact of payment of rent @ Rs.295/- per month by the respondent no. 5 to Late Dinesh Bhagat (the father of the petitioner) and after his death to the petitioner till October, 2017 in lieu thereof the rent receipts were issued. Even if the contention of learned Senior Counsel for the petitioner that the rent receipts were laid before the appellate court so as to establish relationship of landlord and tenant between the petitioner and the respondent no. 5 is accepted, the record does not suggest that any opportunity of cross-examination was afforded to the respondent no. 5 particularly keeping in view his specific averment that he was tenant in other premises of the petitioner and not the premises in question which was already vacated by his father. Finding such infirmities in the order dated 25.04.2018 passed by the respondent no. 4 and the order dated 27.09.2019 passed by the respondent no. 3, the revisional authority set aside the same. 12. This Court is of considered view that since the revisional authority set aside the original as well as the appellate orders primarily on the ground that no opportunity to adduce evidence was granted to the respondent no. 5, it was required to remand the matter to the original authority i.e., the respondent no. 4 so as to afford opportunity to the respective parties to lay their respective evidences particularly with respect to the issue as to whether there had been any landlord-tenant relationship between the petitioner and the respondent no. 5. Undoubtedly, it was incumbent upon the respondent no. 4 to first ensure the existence of landlord-tenant relationship between the parties before passing any order for fixation of fair rent with respect to 5 premises in question. 13. Under the said circumstance, the order of the revisional authority dated 16.12.2021 is set-aside. The order dated 25.04.2018 passed by the respondent no. 4 as well as the order dated 27.09.2019 passed by the respondent no. 3 are also set aside. The matter is remanded to the respondent no. 13. Under the said circumstance, the order of the revisional authority dated 16.12.2021 is set-aside. The order dated 25.04.2018 passed by the respondent no. 4 as well as the order dated 27.09.2019 passed by the respondent no. 3 are also set aside. The matter is remanded to the respondent no. 4 to start de novo proceeding for fixation of rent as per the application of the petitioner. The respondent no. 4 shall provide due opportunity to both the parties to lay their respective evidences including the opportunity of cross-examination so as to testify existence of landlord-tenant relationship between them. 14. The writ petition is accordingly disposed of.