Amar Prem Roadways & Anr. vs Smt. Geetarani Jain

The present revision is arising out of order dated 27/12/2016 passed by Rent Controlling Authority under the provision of M. P. Accommodation

Control Act, 1961. The order reveals that Smt. Geetarani Jain, respondent before this Court has filed an application under Section 23(J)(3) of the Act

of 1961 and the same was allowed directing eviction of the present applicants. It has also been stated that applicants have evicted the premises in

question and the same fact has not been disputed before this Court.

Learned counsel has argued before this Court that the only grievance is with the order directing payment of rent / arrears of rent. He has

straightaway drawn the attention of this Court towards judgment delivered in the case of Sunil Singh Vs. Meenakshi Nema reported in 2016(2) MPLJ

497 and his contention is that in light of the aforesaid judgment and the judgment delivered by the apex Court, no such order can be passed relating to

rent / arrears of rent. Paragraph No.12 to 19 of the aforesaid judgment reads as under:-

“12. The core issue in relation to eviction is whether the non-applicant is a 'landlord' and whether she was able to establish bona fide requirement

of accommodation before the Authority below. It is apt to quote section 23-J of the Act which reads as under:--

23-J. Definition of landlord for the purposes of Chapter III-A--

For the purposes of this Chapter 'landlord' means a landlord who is--

(i) a retired servant of any Government including a retired member of Defence Services; or

(ii) a retired servant of a company owned or controlled either by the Central or State Government; or

(iii) a widow or a divorced wife; or

(iv) physically handicapped person; or

(v) a servant of any Government including a member of defence services who, according to his service conditions, is not entitled to Government

accommodation on his posting to a place where he owns a house or is entitled to such accommodation only on payment of a penal rent on his posting

to such a place; (emphasis supplied)

The reliance was placed by the applicant on the judgment of the Apex Court in the case of Sulochana (supra). In the said case, the Apex Court

held that recourse to summary procedure under Chapter III-A of the Act can be taken only by specified landlord within the meaning of section 23-J of

the Act, which includes 'widow or divorced wife'. Only a landlord who comes within the purview of the said definition is entitled to file suit on the

ground of bona fide requirement. In Sulochana (supra), the Apex Court opined that the appellant purchased the property in question on 23-3-1996. She

was already a widow at that time. In the present case, admittedly the tenancy agreement was entered into between the non-applicant's husband and

present applicant. The husband died later on. The non-applicant herein was not a widow at that time. The widow thereafter filed an application for

eviction. This Court in 1998(1) M.P.L.J. 110, Kailash Chandra and others v. Dr. Kamla w/o Chintaman Chaudhary held that the law nowhere says

that a woman would be entitled to the benefit under section 23-J read with section 23-A if the premises were let out when she was not a widow and

the need arose only after she became a widow. The concession is shown to the persons and the cause of action would accrue in favour of such

landlord only when they need the premises. The cause of action for eviction would not accrue on the date when the tenancy was created.

For the foregoing reasons, I am unable to hold that non-applicant is not a landlord within the meaning of section 23-J of the Act. The judgment of

Sulochana (supra) for the reasons stated above cannot be pressed in service in the present case.

The applicant contended that Adhiniyam of 2012 has no application, hence the application filed under the said Adhiniyam should have been

dismissed by R.C.A. It is seen that R.C.A. opined that the reliance on Adhiniyam, is based on wrong quoting of provision. He otherwise has authority

to deal with the question. In my view, it is trite that omission or error in mentioning the correct provision of law by itself would not denude the power

of the authority to take it so long as source of power is traceable from enabling provision. [See AIR 1977 SC 854, P.R. Naidu v. Govt. of A.P. (1994)

2 SCC 558, State of Karnataka v. Krishnaji Srinivas Kulkarni and others, (2001) 2 SCC 482, B.S.E. Brokers Forum, Bombay and others v. Securities

and Exchange Board of India and others, (2003) 4 SCC 712, High Court of Gujarat and another v. Gujarat Kishan Mazdoor Panchayat and others,

(2003) 6 SCC 545, Chandra Singh and others v. State of Rajasthan and another, (2004) 1 SCC 453 Challamane Huchha Gowda v. M.R. Tirumala and

another, (2006) 3 SCC 167, Union of India and another v. S.C. Parasher and (2006) 5 SCC 789, K.K. Parmar v. H. C. of Gujarat]. Chapter III-A of

the Act makes it clear that for the purpose of eviction on the ground of bona fide need, R.C.A. is a competent authority. Hence, I am unable to hold

that for the purpose of eviction R.C.A. has acted beyond his authority. The applicant is entitled to succeed only on the aspect of recovery of rent.

The Applicant has also raised doubt about adoption of Nitinraj Nema by the non-applicant. In the written statement filed before the R.C.A., the

applicant has raised a bald objection. In Para 6, it is averred that the applicant has filed an unproved and misleading adoption deed. The applicant did

not raise objection before the Court below relating to non-registration of adoption deed. In view of the aforesaid, R.C.A. was not required to examine

the question whether Nitinraj Nema was adopted son or not. If the applicant had any doubt about the same, the burden was on the applicant to put-

forth his defence in a proper manner. Similarly, it was for the present applicant to show before the R.C.A. that Nitinraj Nema cannot be treated as

son of the non-applicant. The applicant has failed to discharge said burden.

The last contention of Shri Jain was relating to issuance of improper summons. It is seen that there is no pleading in the present civil revision

relating to the said contention. The applicant has not raised any ground relating to infirmity in the procedure of issuance of summons or relating to form

of the summons. This is trite law that an issue not raised in the petition cannot be permitted to be raised in arguments. [See (2010) 11 SCC 433,

Avinash Gaikwad and others v. State of Maharashtra and others, (2002) 9 SCC 458, State of Rajasthan and another v. D.D. Sood and another, (2007)

3 M.P.H.T. 309, Nagda Municipality v. ITC Limited and 2008(4) M.P.L.J. 536, Gomti Bai Tamrakar and others v. State of M. P. and others.

As analyzed above, the applicant is entitled to succeed partly. The applicant is able to establish that the R.C.A. has committed an error in passing

the order relating to rent/arrears of rent. Under section 23-J of the Act, learned R.C.A. was competent to pass orders only in relation to eviction

based on 'bona fide requirement'. The impugned order to the extent relates to rent is liable to be interfered with.

Resultantly, the petition is partly allowed. The impugned order to the extent it relates to payment/recovery of rent is set aside. Liberty is reserved

to the non-applicant to avail the remedy relating to recovery of rent by filing appropriate proceeding before the Court of competent jurisdiction. Rest of

the order which relates to eviction is affirmed. No order as to costs.â€​

In light of the aforesaid judgment, this Court is of the opinion that the order passed by the Rent Controlling Authority only to the extent payment of rent

and arrears of rent has been ordered, deserves to be set aside and is accordingly set aside. With the aforesaid, revision stands allowed and a liberty is

certainly granted to file a civil suit in accordance with law, if law so permits.

Certified copy as per rules.