Dindayal Agarwala vs Nandakishore Patwari and Others

R.N. Misra. J.

This is an application by the landlord for a writ of certiorari to quash the reversing appellate decision of the Chief Judicial Magistrate (opposite

party No. 3) in a proceeding for eviction initiated by the Petitioner under the provisions of the Orissa House Rent Control Act.

Petitioner is the owner of a double-storied house standing on holding No. 866 of ward No. 6 of Bargarh Municipality. Under a rent deed dated

1-12-1962, three rooms out of this house in the ground floor were rented out to opposite party No. 1 for shop purposes. Petitioner also runs a

cloth shop in the premises. Petitioner made an application to the House Rent Controller u/s 7 of the Act for an order of eviction of opposite party

No. 1 on the ground that the premises were necessary for his personal occupation. He pleaded that his family consists of ten members in all his

mother, his wife, Petitioner and his seven children. Of the seven children four are sons and three daughters. The eldest son has joined the college

while the other children have now come of age and are all school going. The accommodation in the house excluding the tenanted shop rooms is

inadequate for providing minimum living condition to the members of the family. Petitioner also pleaded that he intended to expand his own

business and claimed that on account of lack of space, a portion of a room had been cordoned off by almirahs for the purpose of location his

business and the extra stock had to be kept at a distance in a separate store room.

Petitioner examined four witnesses including himself to support his case while on behalf of the tenant he and another were examined. The

Controller who Inspected the premises left a memorandum of local inspection on the record. On consideration of the materials, an order of eviction

was passed. Opposite party No. 1 appealed and the learned Chief Judicial Magistrate has vacated the order of eviction. This reversing appellate

decision is assailed in this application.

Mr. Mohanty for the Petitioner contends:

(i) The appellate authority has clearly gone wrong in rejecting Petitioner''s claim for personal occupation on the ground of expansion of business by

saying that the expansion is intended to be in future though Petitioner had categorically indicated that he was now carrying on his business under

untoward circumstances and he wanted to improve his existing business ;

(ii) A notice issued by the Petitioner to opposite party No. 1 was for the first time taken into consideration by the appellate authority without

receiving it by way of additional evidence and without affording any opportunity to the Petitioner to meet the additional material put against him;

and

(iii) There was absolutely no basis for the conclusion of the appellate authority that as the tenanted portion was situated in a busy and noisy locality,

it could not be used for bed room or study room.

Mr. Mohapatra for the tenant-opposite party maintains that the application is liable to be rejected in view of the provisions of Article 226 of the

Constitution after the Forty second Amendment Act.

We propose to deal with Mr. Mohapatra''s contention after the tenability of the several contentions of Mr. Mohanty are examined.

Law is fairly settled that consideration of an application for eviction on the basis of bona fide requirement of the landlord has to be made on an

objective assessment of the materials on record, but keeping in view the fact that the requirement is personal and what would be suitable for the

purpose of the landlord is a mater within his own knowledge and consideration. Admittedly, Petitioner is running a business. There is clear material

on record to show that on account of lack of space, he has been managing his business with difficulty. The expansion of business which Petitioner

contemplated was not an uncertain event nor was it a matter of the future. Given extra accommodation, Petitioner has contended he would expand

his going business. This is not a case where the requirement of the owner was in contemplation of commencing a business for which there was no

immediate prospect. Therefore, the appellate authority did go wrong by holding that future expansion was not a justifying need for eviction. While

the dictum may be true, its application to the facts of the present case was wholly unwarranted.

Mr. Mohanty has contended that the notice upon which reliance has been placed by the appellate authority has not been exhibited in the case

before the Controller and the same has been relied upon by the appellate authority to a considerable extent in reversing the decision of the

Controller. As the order-sheet of the appellate authority shows, this document was produced before him on 6-2-1975. There is no mention in the

order-sheet that the document was formally received in evidence. It is not tenant''s stand that the Evidence Act does not apply to the proceedings

under the House Rent Control Act. It is also conceded that the procedure for the trial of the proceeding is as provided under the CPC though the

inquiry is summary. We need not decide as to whether a formal application under Order 41, Rule 27 of the CPC was necessary to receive the

document in evidence or whether it would be competent for the appellate authority to look into a document which any of the parties to the appeal

produces. Reliance is placed by Mr. Mohapatra on the form of appeal notice prescribed under the rules. It is sufficient for our purpose to indicate

that if any document was to be relied upon, its receipt for the purposes of the record should have been in accordance with the Evidence Act and if

a documentary evidence was to be accepted, an opportunity to the adversary should have been given. This is the minimum that rules of natural

justice require and in the absence of such opportunity having been given to the landlord, the document should not have been referred to and relied

upon by the appellate authority. We are accordingly satisfied that the appellate authority clearly acted in contravention of the rules of natural justice

in relying upon the notice.

There is substantial force in the contention of Mr. Mohanty that the appellate authority was not correct in holding that rooms located in a busy and

noisy locality could not be used for bed room or study room. There are many urban premises where bed rooms and study rooms exist in busy and

noisy localities. Petitioner nowhere contended that he would provide accommodation for bed and study in the ground floor. It was quite possible

that the space available upstairs would have been used for the said purposes and the rooms in the ground floor could have been used for the

purposes of store and other use. We agree with Mr. Mohanty that the reasoning advanced is opposed to common human experience and the

appellate authority was not at all justified in holding that the rooms from which eviction has been asked for could not be used to meet the needs of

the Petitioner. Petitioner is the owner of the house in a busy and noisy locality and, therefore, he has to manage his affairs in such surrounding. It is

not for the appellate authority under the House Rent Control Act to judge his requirement by the standards of the authority itself.

In view of what we have said on the merit of the matter, we do not think the objections raised by Mr. Mohapatra for the tenant against

maintainability of the writ application can succeed. It is well settled in law that a decision rendered in breach of natural justice is vitiated and should

be vacated by issue of a writ of certiorari. As we are satisfied that the decision rendered by the appellate authority is not maintainable on the face

of the record, we quash the appellate decision. The order of the original authority shall stand. We would, however, allow the tenant three months

time from today to vacate the premises, failing which steps may be taken in accordance with law for his eviction.

The writ application is allowed with costs. Hearing fee is assessed at rupees fifty.

R.N. Misra, J.

I agree.

Application allowed.