Arun Kumar Ojha vs Mamta Mishra

Sanjay K. Agrawal, J.

This is tenant''s revision under Section 23-E of the Chhattisgarh Accommodation Control Act, 1961 (for short "the Act of 1961") calling in question the legality and validity of the order dated 26-7-2013 passed by the Rent Controlling Authority, Bilaspur (hereinafter referred to as "RCA") in Case No. 3/A-9.0(6)/2009-10, Smt. Mamta Mishra vs. Arun Kumar Ojha, thereby granting application for eviction filed by the landlady under Section 23-A(b) of the Act of 1961. Landlady-Smt. Mamta Mishra, widow of late Shri Vijay Kumar Mishra being the landlady within the meaning of Chapter III Section 23-J of the Act of 1961 filed an application pleading inter alia that suit accommodation, was let out to tenant Arun Kumar Ojha, is required bona fidely by her for the purpose of starting business of her son namely Sudhanshu Mishra. It was further pleaded that since she has no other reasonably suitable non-residential accommodation of her on in the township of Bilaspur, therefore, she is entitled for eviction of the suit accommodation.

On service of summons, applicant/tenant made an application seeking leave under Section 23-C of the Act of 1961. The RCA granted leave to the tenant to contest the application for eviction.

The tenant filed his written statement opposing the application for eviction and submitted that the landlord and her sons have sufficient accommodation in their possession and her son Sudhanshu Mishra is already having a shop in the Satyam Commercial Complex, Bilaspur having no experience of business, the application for eviction deserves to be rejected.

During the course of trial, landlady examined herself as P.W. 1 and exhibited many documents whereas on behalf of tenant, examined himself and 47 documents were filed in support of their case.

The RCA formulated following points for determination after hearing the parties, which read as under:--

The RCA, by its order dated 26-7-2013, allowed the application and granted order of eviction in favour of landlady/non-applicant herein holding inter alia that suit accommodation was let out to the tenant for non-residential purpose and the same is required by the landlady for the purpose of starting business of her son Sudhanshu Mishra and there is relationship of landlord and tenant between the parties; and the landlady is the owner of suit accommodation thereof and she has no other reasonably suitable alternative accommodation of her own in the township of Bilaspur.

Feeling aggrieved and dissatisfied with the order of RCA, the instant revision under Section 23-E(2) of the Act of 1961 has been filed by the applicant/tenant.

Mr. B.P. Sharma, learned Counsel appearing for the applicant/tenant would submit that as per Section 28 of the Act of 1961, the RCA was required to be appointed with the prior approval of the State Government and in the instant case the RCA was not appointed with the prior approval of the State Government. He would further submit that issues were not framed during the course of trial. He would lastly submit that the finding of bona fide need recorded by the RCA is perverse, therefore, the order of RCA granting eviction of applicant be set aside.

As against this, Mr. A.P. Dubey, learned Advocate appearing for the landlady/non-applicant would submit that appointment of RCA, who decided the application for eviction, filed by the landlady cannot be questioned in this revision petition as scope of revision is confined to examining legality and validity of the order impugned passed by the RCA. He would submit that RCA is not an intruder or usurper. He would further submit that the procedure to be followed while holding enquiry in the proceeding under Section 23-D(1) and (2) of the Act of 1961 by RCA would 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 and he would lastly submit that the finding of RCA on the question of bona fide need of the landlady is based on evidence available on the record and, therefore, no interference is called for in exercise of jurisdiction under Section 23-E(2) of the Act of 1961.

I have heard learned Counsel appearing for the parties and considered the rival submissions made therein.

After hearing learned Counsel appearing for the parties, following questions would arise for consideration in this revision:--

(i) Whether the appointment of Rent Controlling Authority was not in accordance with Section 28 of the Act of 1961;

and/or

Whether the legality/validity of the appointment of the RCA can be challenged by the applicant in this revision?

(ii) Whether RCA has committed an illegality in not framing issues during the course of enquiry on the application filed by the landlady?

(iii) Whether finding of fact arrived at by the RCA holding the bona fide need established is perverse and contrary to the record?

Answer to Question No. 1:

For a proper comprehension of the attack made on the appointment of RCA, who tried the application under Section 23-A(b) of the Act of 1961, it will be profitable to take note of Section 28 of the Act of 1961, which runs as under:--

"28. Appointment of Rent Controlling Authority.--(1) The Collector shall with the previous approval of the State Government appoint an officer not below the rank of Deputy Collector to be the Rent Controlling Authority for the area within his jurisdiction to which this Act applies.

(2) The Collector may, with the previous approval of the State Government, appoint, from amongst officers, not below the rank of a Deputy Collector, one or more Rent Controlling Authorities, as he deems fit to assist the Rent Controlling Authority appointed under subsection (1)."

The short question that needs consideration is whether in a revision petition arising out of eviction proceedings initiated by the landlady, applicant/tenant is entitled to challenge or call in question the legality and validity of the appointment of RCA, who tried the eviction application.

It is well-settled law that legality of the appointment of the Rent Controlling Authority cannot be challenged in collateral proceeding either before the Rent Controlling Authority himself or before this Court in revision on the principle of de facto doctrine based on public policy to prevent needless confusion and endless mischief.

In Gokaraju Rangaraju Vs. State of Andhra Pradesh, , Their Lordships of the Supreme Court have considered the doctrine of de facto doctrine and held as under:--

"The doctrine is now well-established that ''the acts of the officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding, as if they were the acts of officers dejure''. As one of us had occasion to point out earlier, the doctrine is founded on good sense, sound policy and practical experience. It is aimed at the prevention of public and private mischief and the protection of public and private interest. It avoids endless confusion and needless chaos. An illegal appointment may be set aside and a proper appointment may be made, but the acts of those who hold office de facto are not so easily undone and may have lasting repercussion and confusing sequels if attempted to be undone."

It was further held by Their Lordship''s in Para 15 of the judgment as under:--

"A Judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever be the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a Judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief. There is yet another rule also based on public policy. The defective appointment of a de facto Judge may be questioned directly in a proceeding to which it may be a party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation, which is of no concern or consequence to the Judge except as a Judge. Two litigants litigating their private titles cannot be permitted to bring in issue and litigate upon the title of a Judge to his office. Otherwise no soon a Judge pronounces a judgment a litigation may be commenced for a declaration that the judgment is void because the Judge is not a Judge. A Judge''s title to his office cannot be brought into jeopardy in that fashion. Hence, the rule against collateral attack on validity of judicial appointments in an appeal against his judgment is, of course, such a collateral attack."

The Supreme Court in case of Beopar Sahayak (P) Ltd. and Others Vs. Vishwa Nath and Others, , while noticing the Gokaraju Rangaraju (supra), has held that the appointment of Rent Controlling Authority or Prescribed Authority or an officer discharging the functions as such authority by virtue of a notification cannot be challenged even if there is some error in the appointment of such authority, the order passed by the authority is protected by the principle of de facto doctrine. Para 12 of the report runs as under:--

"12. .....Such being the case as long as the Government Notification dated September 9, 1974 is not challenged, the exercise of powers by Shri Sengar as a Prescribed Authority cannot also be challenged. This position would then call for the application of the ''de facto doctrine'' to the facts of the case. The principle of the ''de facto doctrine'' has been considered in several cases. This Court had occasion in Gokaraju Rangaraju Vs. State of Andhra Pradesh, , to which one of us (Sen, J.) was a party to refer to those decisions and enunciate the law relating to the ''de facto doctrine''."

It was further held by Their Lordships in Para 12 of the Judgment as follows:--

"....... The ensuing position, therefore, is that even if we are to countenance the argument of the appellant''s Counsel that Shri Sengar had not gained experience as an Executive Magistrate exercising First Class powers for a period of not less than three years and could not therefore, be appointed as a Prescribed Authority under the Act, the validity and legality of the order of release passed by him cannot be impugned because Shri Sengar had not held the office as an usurper but only under colour of lawful authority. There is, therefore, no escape for the appellant from being governed by the ''de facto doctrine'' and thereby being disentitled to impugn the validity of the release order on the ground of want of jurisdictional competence for Shri Sengar to pass the order. Furthermore, the appellant is also not entitled to question the validity of the appointment of Shri Sengar as a Prescribed Authority in a collateral proceeding. The additional factors also militate against the contentions of the appellant."

In Jai Kumar vs. State, 1968 All. LJ 877, a Full Bench of the Allahabad High Court held as follows:--

"The first rule establishes that the acts of a de facto Judge are not suffered to be questioned because of the want of valid appointment, in a collateral proceeding. His title may be challenged only in a proceeding for a writ of quo warranto or in a suit for declaration of his status or legal character, to which he is a party. These two proceedings are direct proceedings to challenge his title. Any other proceeding is a collateral proceeding. Accordingly, his title cannot be challenged in a proceeding before him, or in appeal or revision from his order or in a proceedings for certiorari. The second rule establishes that the acts of a de facto Judge are suffered to be valid as to the public and the litigants before him until his title is investigated and determined against him in a direct proceeding. A de facto Judge is one who has the reputation of being the Judge although he is not a Judge in the eye of law."

The Division Bench of the High Court of Madhya Pradesh in case of Mancharlal vs. Smt. Ratankumar, 1987 (II) MPWN 42, has also held that appointment of Rent Controlling Authority cannot be challenged in proceedings before him, in appeal or revision or against his order in revision before this Court and inter alia observed as under:--

"It was not disputed before us that respondent No. 5 was a Deputy Collector at Neemuch and was appointed by the Collector as the Rent Controlling Authority, Neemuch. The contention advanced on behalf of the petitioner was that respondent No. 5 was not properly appointed as Rent Controlling Authority under Section 28 of the Act because previous approval of the State Government had not been sought by the Collector before such appointment. Even assuming that the appointment of respondent No. 5 was defective, as urged on behalf of the petitioner, the impugned order passed by respondent No. 5 cannot be quashed on the ground of any defect in the appointment of respondent No. 5, in view of the judgment of the Supreme Court in Gokaraju Rangaraju Vs. State of Andhra Pradesh, ."

The Single Bench of High Court of Madhya Pradesh in case of Ratanbai Vs. Chetandas, , has held as under:--

"17. Thus, the legality of the appointment of the Rent Controlling Authority cannot be challenged either before the Rent Controlling Authority himself or before this Court in revision. Both these are collateral proceedings. The legality of the appointment can only be challenged in a direct proceeding to which the Rent Controlling Authority is a party. The de facto doctrine applies to the present case. The contention of the learned Counsel for the non-applicant regarding the jurisdiction of the Rent Controlling Authority is, therefore, negatived."

Thus, in the light of law laid down by the Supreme Court in case of M/s. Beopar Sahayak (P) Ltd. (supra), and the High Court of Madhya Pradesh in the above referred cases, the applicant/tenant is not entitled to question the legality and validity of the appointment of Rent Controlling Authority appointed under Section 28 of the Act in this revision filed under Section 23-A(b) of the Act of 1961 on the principle of de facto doctrine and such challenge cannot be considered in this revision proceedings and as such submission raised by Mr. Sharma sans merit and accordingly rejected. Thus, first question is answered accordingly against the appellant/tenant.

Answer to Question No. 2:

This question relates to framing of the issues during the course of enquiry of the application by the RCA.

Shri Sharma, learned Counsel appearing for the appellant has placed reliance on Rule 16 of the M.P. Accommodation Control Rules, 1966. According to Rule 16 of the Rules, 1966 the State Government in exercise of power conferred under Section 5 of the Act of 1960, has framed the rules namely, "M.P. Accommodation Control Rules, 1966", which reads as under:--

"16. Code of Civil Procedure to be generally followed.--In deciding any question relating to procedure not specifically provided by the Act and these rules, the Rent Controlling Authority shall as far as possible, be guided by the provisions contained in the Code of Civil Procedure, 1908."

A close reading of Rule 16 of Rule 66 would show that this provision also did not make all the provisions of the Code of Civil Procedure applicable to the proceedings before the Rent Controller, but only provided that the Controller shall be guided, as far as possible, by the provisions contained in the Code of Civil Procedure, and that too, only when a question relating to procedure was not specifically provided by the Act and the Rules. This means also that the Rent Controller in deciding a question relating to procedure not specifically provided by the Act and the Rules, cannot apply a provision of the Code of Civil Procedure even as an analogy, if such application would be contrary to or inconsistent with what is specifically by the Act of 1961. In other words, Rule 16 does not empower or enable the Rent Controller to adopt a procedure on the analogy of a provision in the Code of Civil Procedure, if such adoption would be contrary to or inconsistent with the intendment of a specific provision in the Act.

Section 23-D(2) of the Act of 1961, which runs as under:--

"23-D. Procedure to be followed by Rent Controlling Authority or grant of leave to tenant to contest.--

(1) *** *** ***

(2) The Rent Controlling Authority shall, while holding an enquiry in a proceedings to which this Chapter applies, follow as far as practicable, the practice and procedure of a Court of Small Causes including the recordings 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."

Section 17 of the Provincial Small Cause Courts Act, 1887 provides as under:--

"17. Application of the Code of Civil Procedure.--(1) The procedure prescribed in the Code of Civil Procedure, 1908, shall, save in so far as is otherwise provided by that Code or by this Act, be the procedure followed in a Court of Small Causes, in all suits cognizable by it and in all proceedings arising out of such suits:

Provided that an applicant for an order to set aside a decree passed ex parte or for a review of judgment shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment, or give such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf, have directed."

Section 7 of the Code of Civil Procedure, 1908 provides as under:--

"7. Provincial Small Cause Courts.--The following provisions shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887, or under the Berar Small Cause Courts Law, 1905, or to Courts exercising the jurisdiction of a Court of Small Causes under the said Act or Law or to Courts in any part of India to which the said Act does not extend exercising a corresponding jurisdiction that is to say,--

(a) so much of the body of the Code as relates to--

(i) suits excepted from the cognizance of a Court of Small Causes;

(ii) The execution of decrees in such suits;

(iii) the execution of decrees against immovable property; and

(b) the following sections, that is to say,--

Section 9,

Sections 91 and 92,

Sections 94 and 95, so far as they authorise or relate to--

(i) orders for the attachment of immovable property,

(ii) injunctions,

(iii) the appointment of a receiver of immovable property, or

(iv) the interlocutory orders referred to in clause (e) of Section 94, and Sections 96 to 112 and 115."

Thus, reading together with Section 23-D(2) of the Act of 1961 along with Section 17 of the Provincial Small Cause Courts Act, 1887 and Section 7 of the C.P.C., it would appear that as far as possible the provisions of C.P.C. while holding enquiry under the Act of 1961, it is nowhere laid down in the Provincial Small Cause Courts Act, 1887 that framing of the issues is not necessary, on the contrary it appears that framing of issues is necessary before recording evidence of the parties by RCA.

Reverting back of the facts of the present case, though RCA did not frame issue during the course of trial but essentially the points for determination here framed after hearing and while considering the said application finally, it has been duly recorded in the impugned order. Thus, though issues were required to be framed before the evidence of the parties but petitioner has failed to establish prejudice has been caused to him on account of non-framing of the issues before evidence of the parties during course of enquiry on the application of landlady. Thus, the argument raised on this behalf deserves to and accordingly rejected. Thus, the second question is answered accordingly.

Answer to question No. 3:

The determination of aforesaid two questions brings me the 3rd question; as to whether finding of fact arrived at by the RCA finding bona fide now is perverse and contrary to the record.

In order to appreciate the rival contentions raised by the Counsel for the parties, it would be appropriate to reproduce the relevant provisions contained in Section 23-A(b) and Section 23-D(3) of the Act, which read as under:--

"Section 23-A. Special provision for eviction of tenant on ground of bona fide requirement.--Notwithstanding anything contained in any other law for the time being in force or contract to the contrary, a landlord may submit an application, signed and verified in a manner provided in Rules 14 and 15 of Order VI of the First Schedule to the Code of Civil Procedure, 1908 (V of 1908) as if it were a plaint to the Rent Controlling Authority one or more of the following grounds for an order directing the tenant to put the landlord in possession of the accommodation, namely:--

(a) *** *** ***

(b) that the accommodation let for non-residential purposes is required ''bona fide'' by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters, if he is the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitably nonresidential accommodation of his own in his occupation in the city or town concerned:

Provided that where a person, who is a landlord has acquired any accommodation or any interest therein by transfer, no application for eviction of tenant of such accommodation shall be maintainable at the instance of such person unless a period of one year has elapsed from the date of such acquisition.

Section 23-D. Procedure to be followed by Rent Controlling Authority or grant of leave to tenant to contest.--

(1) *** *** ***

(2) *** *** ***

(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) or clause (b), as the case may be of Section 23-A is bona fide."

From a perusal of the aforesaid provisions of the Act, it is clear that once it is prima facie found as a fact that the requirements of the person as contemplated by law exists, it shall be presumed unless contrary is proved that the requirement of the landlady with reference to Clause A or Clause B as the case may be of Section 23-A is bona fide.

It is well-settled that the revisional power conferred by Section 23-E of the Act is larger than the revisional jurisdiction under Section 115 of the CPC but lesser than appellate power. Indication is that an attempt should be made to keep as nearly as possible to the limits of power of revision under Section 115 of the CPC exceeding the same only to the extent necessary for preventing miscarriage of justice. The finding of fact arrived at by the RCA regarding the bona fide requirement of the landlady can be disturbed in revision if it is perverse and not simply on the ground that another view is possible on re-appreciation of the evidence.

The Madhya Pradesh High Court in case of B. Johnson Vs. C.S. Naidu, , has held as under:--

"The first part of sub-section (2) of Section 23-E of the M.P. Act has, therefore, to be construed similarly, as conferring a power of revision wider than that given by Section 115, Code of Civil Procedure, but narrower than the power of appeal, which permits interference where there was a taint of such unreasonableness resulting in a miscarriage of justice."

Again the Madhya Pradesh High Court in case of Mahendra Kumar Jain Vs. Dharamchand Jain, , has held as under:--

"6. The serious submission, however, appears to be regarding the correctness of finding about the bona fide need. Before this Court can appreciate the submission of the learned Counsel, it must ascertain its own jurisdiction in the matter. A revisional jurisdiction, particularly under Section 115, Civil Procedure Code is a limited jurisdiction and does not extend to examining the correctness or otherwise of the finding. The present revision, however, is filed under Section 23-E of the Act, which authorities the High Court to satisfy itself as to the legality, propriety or correctness of an order passed by the Rent Controlling Authority. These words are apparently of wider magnitude and scope. In Kewal Singh Vs. Smt. Lajwanti, , the Supreme Court has considered a similar provision in Delhi Rent Control Act and has held that ''the Highest Court of the State has been given a wider power of revision where the said Court can examine the case of the tenant and the landlord and the validity of the order passed by the Controller''. In Delhi Rent Control Act, the powers of the High Court are limited to examining if an order passed by the Controller is according to law. The wordings of our law are not only different but wider than Delhi Act and hence it must be held that this Court''s power of revision do not suffer from limitations under Section 115, CPC. This view is also supported by an earlier decision of the Supreme Court in Hari Shankar Vs. Rao Girdhari Lal Chowdhury, . Clearly, therefore, this Court while exercising its revisional jurisdiction has the power to look into the correctness of the finding regarding bona fide need of the landlord. This is, however, not to say that in examining the correctness of the finding this Court would Act as a Court of appeal and reappreciate evidence to come to its own conclusion. That is how the present provision will have to be distinguished from appellate powers."

The Supreme Court in case of Chaman Prakash Puri vs. Ishwar Das Rajput and another, 1995 Supp (4) SCC 445, has held as under:--

"3. The Rent Controller on appreciation of the evidence found that the appellant-landlord was in bona fide need of the premises in question and his application for eviction of the tenant under Section 14(1)(e) of the Delhi Rent Control Act was allowed. The tenant approached the High Court in revision. The High Court, re-appreciating the evidence, held that the landlord was not in requirement of the premises in question. This is the High Court was not entitled to do in revision proceedings."

The Supreme Court in case of Smt. Fatima Bee Vs. Mahamood Siddiqui and Mohd. Omer Siddiqui, , has held as under:--

"7. The learned Counsel for the appellant contended that the High Court committed not only an error of law, but went beyond its jurisdiction in re-appreciating the evidence and reversing the finding regarding the bona fide requirement of the landlady. The High Court also committed a grave error in doubting correctness of the finding recorded by the Courts below that she is engaged in the business of manufacturing and selling bangles along with her family members. In our opinion, this contention raised on behalf of the appellant deserves to be accepted. We are also of the opinion that the High Court committed a grave error in reversing the finding that the claim of permanent tenancy was mala fide. The Rent Controller after appreciating the evidence led on behalf of the landlady and that of the tenants had recorded the finding that the landlady requires the suit premises bona fide for carrying on her business. The Rent Controller had also recorded the finding after appreciating the rival evidence that she was carrying on business as averred by her along with other family members. These were the findings of facts recorded after appreciation of evidence. These findings were confirmed by the Appellate Court again after appreciating the evidence. No part of the evidence was misread by the Courts below. Therefore, there was no justification for the High Court to reverse the said findings of facts."

Further, the Supreme Court in case of Prativa Devi Vs. T.V. Krishnan, , has held as under:--

"4. In the premises, the judgment of the High Court disallowing the appellant''s claim cannot be supported. In considering the availability of alternative accommodation, the Court has to consider not merely whether such accommodation is available but also whether the landlord has a legal right to such accommodation. The appellant had established her bona fide personal requirement of the demised premises under Section 14(1)(e) of the Act and her claim could not be disallowed merely on the ground that she was staying as a guest with a family friend by force of circumstances."

Likewise, the Supreme Court in case of Ram Dass Vs. Ishwar Chander and Others, , has held as under:--

"12. On the first contention that the revisional powers do not extend to interference with and upsetting of findings of fact, it needs to be observed that, subject to the well-known limitations inherent in all revisional jurisdictions, the matter essentially turns on the language of the statute investing the jurisdiction."

Having examined the scope of interference in the revisional jurisdiction, turning back to the facts of the case, it appears that the application was filed by the respondent/applicant under Section 23-A(b) of the Act claiming that the suit accommodation is required bona fidely for starting the business of her son Sudhanshu Mishra as she has no other alternative suitably accommodation of her own in the city of Bilaspur.

Section 23-D(2) of the Act of 1961, which runs as under:--

"23-D. Procedure to be followed by Rent Controlling Authority or grant of leave to tenant to contest.--

(1) *** *** ***

(2) *** *** ***

(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) or clause (b), as the case may be of Section 23-A is bona fide."

The Rent Controlling Authority, on appreciation of oral and documentary evidence on record, has recorded a finding that the landlady is the owner of the suit accommodation and there is relationship of landlord and tenant between the parties and the landlady has no other reasonably suitable accommodation in the township of Bilaspur and the said finding are neither shown to be perverse or contrary to the record.

The applicant has discharged her initial burden and, thereafter, it was the duty on the part of the non-applicant to discharge his duty by proving their case as there is presumption under Section 23-D(3) of the Act with regard to bona fide need and the said burden has not been discharged by the non-applicant. Thus, the finding of the fact recorded by the RCA finding that suit accommodation is bona fidely required by the landlady for starting his business and she has no other reasonably suitable accommodation in the township of Bilaspur is a finding based on material available on record and the same is neither perverse nor contrary to record. I do not find any illegality in the aforesaid finding. In view of above discussion, the revision fails and is accordingly dismissed. No order as to costs.