Kantilal Ratansi Kothari vs House Allotment Officer, Nagpur and others

M.M. Qazi, J.—Petitioner Kantilal has filed this Letters Patent Appeal, challenging the order passed by the Single Judge of this Court on 22-6-1981, rejecting his writ petition No. 1493 of 1981 in limine.

The facts which gave rise to the present Letters Patent Appeal may be stated, in brief, as follows:

Respondent No. 3 Sarlabai wife of Sadashivrao Buty is the owner of a Chawl bearing No. 3 located at Abhyankar Road, Sitabuldi, Nagpur. Block No. 1 from the said Chawl was let out to respondent No. 2 M/s Patel Cycle Trading Company through its partner Smt. Banarasi Devi wife of Bajranglal Garodiya about 20 years back as a tenant on the rent of Rs. 65.40 per month. It was a monthly tenancy. Respondent No. 2 was paying rent regularly and respondent No. 3 was issuing receipts. The last receipt was issued on 3rd July 1978 for the month of June 1978 for the rent of Rs. 70.67 which included the rent and additional amount of Rs. 6.27 in lieu of some taxes. According to the tenant M/s Patel Cycle Trading Company, respondent No. 3 illegally and unauthorisedly with an ulterior motive to benefit herself monetarily conspired with the petitioner Kantilal and respondent No. 4 Dr. Vinodkumar Agrawal to create new rights in their favour as tenants in respect of the very said premises which was in occupation of respondent No. 2 M/s Patel Cycle Trading company. It appears that since July 1978 the agent of the owner did not collect rent for about 4 to 5 months from M/s Patel Cycle Trading Company and instead started collecting rent from the petitioner and respondent No. 4, at the rate of Rs. 100/- and Rs. 60/- per month respectively. The owner actually started issuing receipts in favour of the petitioner and respondent No. 4 treating them as tenants in respect of the said premises. When M/s Patel Cycle Trading Company learnt about this, they approached the owner pointing out the apparently illegal act committed by her. However, this had no effect and the owner continued to receive rent from the petitioner and respondent No. 4, and therefore, M/s Patel Cycle Trading Company was constrained to move the House Allotment Officer, Nagpur under clause 28 of the C.P. and Berar Letting of Houses and Rent Control Order, 1949 (hereinafter referred to as the Rent Control Order, for short), for suitable action.

The respondent No. 2 gave details in the application about their tenancy and pointed out that the owner of the premises had entered into a conspiracy with the so-called tenants to deprive M/s Patel Trading Company and its legitimate rights to continue in possession of the premises as tenant without taking any recourse to the provisions of the Rent Control Order. M/s Patel Cycle Trading Company further pointed out in the said application that the petitioner Kantilal who was a close confidant of the family of one of the partners of M/s Patel Cycle Trading Company, was permitted to use the front portion for some time in the past as a mere licensee. It was further pointed out that respondent No. 4 Dr. Vinodkumar Agrawal was the son of one of the partners of the M/s Patel Cycle Trading Company and was not on good terms with the present partner Smt. Banarasidevi. M/s Patel Cycle Trading Company sent rent for the months of July to November 1978, both inclusive, which came to be refused by the owner Smt. Sarladevi. M/s Patel Cycle Trading Company issued legal notice to the owner as well as to petitioner and respondent No. 4. The owner replied the said notice stating that she will take suitable legal action against the present occupiers, thereby she herself committed that the present occupiers, i.e. the petitioner and respondent No. 4, are not legal tenants.

This application was contested by the landlady as well, as by the petitioner and respondent No. 4. According to the landlady, Smt. Banarasidevi wife of Bajranglal Gardiya, named as partner of M/s Patel Cycle Trading Company, was not the tenant but one Shankarlal Patel, Proprietor of M/s Patel Cycle Trading Company, was the tenant. According to the landlady, Shri Shankarlal Patel left Nagpur several years before and thereafter the business was conducted in the same premises under the name M/s Patel Cycle Trading Company. Thus, in short, she denied that there was any contract either with Smt. Banarasidevi or M/s Patel Cycle Trading Company of which Smt. Banarasidevi was the partner. According to her, somewhere in July 1978 petitioner Kantilal was found in occupation of the premises, doing business under the name and style ''M/s Dayal Cycle Stores''.

The petitioner also filed his reply. According to him, he was the tenant in the said premises since about 1975. He denied that M/s Patel Cycle Trading Company was ever a tenant of the suit premises. He has admitted that the owner issued rent receipts in his favour from July 1975 at the rate of Rs. 100/- per month. According to the petitioner, the first tenant was a Bengali gentleman, who was carrying a business of selling newspapers and thereafter the premises were occupied by Shankarlal Patel, who was trading in the name and style of M/s Patel Cycle Trading Company, and it was some time in the month of January 1975 that the premises were taken on rent by the petitioner. He has further stated that he is trading in the name and style ''M/s Cycle Stores'' and the said premises are duly registered under the provisions of the Bombay Shops and Establishment Act, 1948. He further contended that the application under clause 28 of the Rent Control Order was not tenable. Respondent No. 4 Dr. Vinodkumar Agrawal did not contest the application. He remained absent during the proceedings and, therefore, he was proceeded ex pane.

The parties led evidence. The petitioner examined himself and one employee of the Nagpur Corporation, whereas M/s Patel Cycle Trading Company examined one Ramnivas Zorawarni, and the landlady Sariabai examined her agent Shri Gaikwad.

The House Allotment Officer recorded a finding that the petitioner did not produce any receipt from 1975 to June 1978 in support of his claim that he was a tenant of the premises since January 1975. He has further recorded a finding that M/s patel Cycle Trading Company as represented by Smt. Banarasidevi is the tenant of the suit premises and paid rent from 1957 onwards till June 1975 and the same was duly accepted by Sariabai. There is no dispute that Sariabai at no point of time initiated any proceedings to terminate the tenancy of M/s Patel Cycle Trading Company under the provisions of the Rent Control Order, though the premises are governed by the Rent Control Order. A definite finding is recorded that the petitioner Kantilal is in occupation of the suit premises in contravention of clause 22(2) of the Rent Control Order. He therefore, ordered eviction of the petitioner and respondent No. 4 from the suit premises within a period of 15 days. He also issued show cause notice to the landlady as to why she should not be prosecuted for terminating the tenancy of M/s Patel Cycle Trading Company without issuing notice and without taking recourse to the provisions of clause 13(3) of the Rent Control Order. This order was challenged by the petitioner before the Single Judge of this Court by way of writ petition. The matter came up for admission before Palshikar J., (as then he was.) He rejected the same in limine.

Mr. Bharigde, the Learned Counsel appearing on behalf of the petitioner, has urged that the finding recorded by the House Allotment Officer that M/s Patel Cycle Trading Company, as represented by Smt. Banarasidevi, was the tenant and that its tenancy continues till this date is erroneous. Mr. Bhangde has also challenged before us the finding that petitioner Kantilal was not in occupation of the premises since January 1975 as claimed by him. In our view, these are pure findings of fact and the same has been recorded on the basis of evidence. We see no reason to take a view other than the one taken by the House Allotment Officer on these issues.

Mr. Bhangde has strenuously urged that the application of M/s Patel Cycle Trading Company under clause 28 of the Rent Control Order was not maintainable. Clause 28 reads as under :

"28(1) The Collector may take or cause to be taken such steps and use or cause to be used such force as may, in his opinion, be reasonably necessary for the purpose of securing compliance with, or for preventing or rectifying any contravention of this order or for the effective exercise of such power."

The House Allotment Officer has recorded a finding that the petitioner has occupied the suit premises in contravention of clause 22(2) of the Rent Control Order. Clause 22(2) reads as under :

"(2) No person shall occupy any house in respect of which this Chapter applies except under an order under sub-clause (1) of clause 23 or clause 24 or on any assurance from the landlord that the house is being permitted to be occupied in accordance with sub-clause (2) of clause 23".

In view of the categorical finding recorded by the House Allotment Officer that the petitioner occupied the suit premises in contravention of the provisions of the Rent Control Order, there is nothing that can prevent him from taking such steps as may in his opinion be reasonably necessary for the purpose of rectifying any contravention of this Order. Clause 23 in our view., confers ample powers on the House Allotment Officer to take or cause to be taken such steps and use or cause to be used such force as may in his opinion be reasonably necessary for the purpose of securing compliance with, or for preventing or rectifying any contravention of this order. In view of the finding of the House Allotment Officer, it is absolutely clear that M/s Patel Cycle Trading Company, as represented by Smt. Banarasidevi, was the tenant since 1957. It was paying rent regularly and the receipt dated 3-7-3978 shows that rent was paid even for the month of June 1978. Under such circumstances, the landlady had no right to accept rent from the petitioner from July 1978 as she did. She was aware that it was only M/s Patel Cycle Trading Company, as represented by Smt. Banarasidevi, who was the tenant, and that its tenancy was never terminated under clause 13(3) of the Rent Control Order, and therefore, she could never have accepted, the petitioner as her tenant. Thus, there can be no denial of the fact that the provisions of the Rent Control Order were contravened by the landlady as well as by the petitioner and it was, therefore, necessary that the House Allotment Officer, should have taken steps for rectifying the contravention of this Order and that is all that he has done. In our view, there is no substance in the present appeal.

The House Allotment Officer has directed issuance of show cause notice to the landlady as to why she should not be prosecuted for terminating the tenancy of M/s Patel Cycle Trading Company without taking any recourse to the provisions of clause 13(3) of the Rent Control Order. In the peculiar, facts and circumstances of this case, we think, it may not be necessary to take such a drastic action against the landlady, who may have in good faith fallen prey to the tactics of the petitioner and accepted rent. We, therefore, quash that direction of the House Allotment Officer, but confirm the other findings of the House Allotment Officer.

In the result, the appeal is dismissed. No order as to costs.