Khanchand and Another vs Prakash Chandra Jain

S.L. Jain, J.

This order shall govern the disposal of this revision as well as Civil Revision No. 197/2004 (Prakashchand Jain v. Hiralal Jain), Civil Revision No. 198/2004 (Prakaschand Jain v. Ram Sewak) and Civil Revision No. 199/2004 (Prakaschand Jain (Vaidya) v. Asharam) as all these revisions arise out of the different shops located in the same building and the landlord in all these cases is common and most of the facts and law applicable are common in all these revisions.

In the course of this order parties will be referred to by the ranks assigned to them before the Rent Controlling Authority, Tikamgarh (henceforth the ''RCA'') i.e. the landlord will be referred to as applicant and the tenants will be referred to as non-applicants.

Landlord, Prakashchand filed four applications against different tenants u/s 23-A of M.P. Accommodation. Control Act, 1961 (henceforth the ''Act'') for their eviction on the ground of bona fide requirement, before the RCA. The application filed against tenants Khanchand and Premchand was registered as Case No. 1/A-90Q) /2003-2004, application filed against tenant Hiralal was registered as Case No. 3-A-90(1)/2000-2001, application filed against tenant Ramsewak was registered as Case No. 1-(A)-90(1) /2000-2001 and application filed against tenant Asharam was registered as Case No. 2-A-90 (1) / 2002-2003.

In all the aforesaid cases before the RCA, the landlord has stated that he is the owner of House No. 120, Ward No.8, situated at Mahal Road Bazar, Tikamgarh. He was the employee of State of M.P. and served as Deputy Supdt. of Police. He retired from this post on 31-10-93 and, therefore, he is covered under the definition of landlord of special category'' for the purpose of Chapter III-A of the Act. One shop each was let out to the tenants for nonresidential purpose.

In application No. 1/A-90(1)/2003-2004, the landlord alleged that the accommodation is required bona fide by him for starting his business of electrical equipments and general goods and other house-hold articles and he has no other reasonable suitable non-residential accommodation of his own in his occupation in the city of Tikamgarh. The landlord also averred that he has filed another application No. 2-(A)-90(1) /2002-2003 for eviction of tenant Asharam Sindhi. He will establish his business after joining both the shops.

In application No. 2-(A)-90(1)/2002-2003, the landlord alleged that he required the suit-accommodation bona fide for starting his business of the aforesaid articles for which he has filed application against the tenants of adjoining partition also which is in occupation of Khanchand and Premchand. He will start his business by joining the two shops.

In the application No. 1-(A)-90(1)/2000-2001, filed by landlord against tenant Ramsewak he submitted that he required the suit-accommodation bona fide for business of coir-form mattresses and other house-hold articles to be started by his major son, Harshraj Vaidya for which he has no other reasonable suitable non-residential accommodation of his own is his occupation in the city of Tikamgarh. He has stated that his son in having sufficient funds and experience to start the business. The applicant also stated that the shop adjoining to the suit-accommodation is in the occupation of another tenant, namely, Hiralal. He has filed an application for eviction of Hiralal also. Both the accommodations which are in occupation of tenants Ramsewak and Hiralal shall be joined after their vacation and will be used for the business of his son, Harshraj.

Tenants in all the cases contested the applications. Khanchand and Premchand pleaded that earlier Lakhimal Sindhi was the tenant in the suit accommodation. In collusion with Lakhimal the landlord filed an application for eviction against Lakhimal and got an order for vacation of the suit-shop, though on the date of that application the non-applicants were the tenants in the suit-accommodation. Therefore, the non-applicants obtained an injunction against the landlord. The suit in this regard is pending in the Court of Civil Judge Class -1, Tikamgarh. Tenants Khanchand and Premchand also averred that the accommodation-in-suit was let out to them by the landlord after his retirement.

Tenant Asharam has stated that his son Laxmandas Sindhi is the tenant of the applicant in the suit-accommodation. All the tenants have stated that the applicant or his son do not require the suit accommodation bona fide to start their business. The applications have been filed for the purpose of re-letting the accommodation on higher rent after getting them vacated.

The RCA, in applications filed against the tenant Hiralal, Ramsewak and Asharam found that the applicant does not require the suit accommodation bona fide for the purpose of starting his business or the business of his major son, Harshraj and dismissed all the three applications. In the application, No. 1/A-90(1)/2003-2004 against the tenants Khanchand and Premchand the RCA found that the suit-accommodation is bona fide required by the landlord for starting his own business for which he has no other reasonably suitable non-residential accommodation of his own in his occupation in the city of Tikamgarh and allowed the application.

Being aggrieved by the orders of RCA in the applications against the tenants Hiralal, Ramsewak and Asharam the landlord, Prakashchand Jain has filed three revision petition Nos. 194/2004,198/2004 and 199/2004 respectively.

Being aggrieved by the order of RCA in the application against the tenant Khanchand and Premchand, directing their eviction from the suit-shops, they filed this Civil Revision No. 257/2004.

I have heard Shri N.K.Patel, counsel for applicants/tenants in this revision and for non-applicants/tenants in C.R.Nos. 197/2004,198/2004 and 199/2004 and Shri Girish Shrivastava counsel for non-applicant/landlord in this revision and for applicant/landlord in C.R.Nos. 197/2004,198/2004 and 199/2004 and perused the records.

Shri Patel, learned counsel for applicants/tenants in this revision vehemently submitted that the finding of RCA that the landlord (the non-applicant in this revision) required the suit-accommodation bona fide is not defensible. Admittedly, the landlord suffered a brain hemorrhage. The state of his health is not such that he will start new business in the old age. The landlord has not proved that he is having sufficient funds and experience for starting his business. Counsel further submitted that the wife of the landlord had written a letter to the tenant, Ex.D 7 in which she requested for enhancement of rent and on failure to which for vacating the suit-accommodation which suggests that the object of the landlord is not to start the business but to enhance the rent.

Per contra, learned counsel for non-applicant/landlord in this revision, submitted that the landlord is in the dire need of the suit-accommodation as he wants to start his own business and also he is in fit state of health.

So far as the question as to whether the non-applicant is a landlord of special category as defined u/s 23-J of the Act is concerned, the non-applicant has filed a certificate to establish that he is a retired Deputy Supdt. of Police. Applicants/tenants have also admitted that the non-applicant is a retired government servant of the State of M.P. Therefore, the finding of the RCA in this regard is impregnable.

So far as the question of bona fide requirement of the landlord is concerned, sub-section (3) of Section 23-D of the Act specifically provides that the persons mentioned therein as landlord when they file an application under Chapter III for eviction of tenant on the ground of bona fide requirement, the requirement shall be presumed to be bona fide unless the contrary is proved.

It is true that the initial burden of proving the requirement of the suit-accommodation lies on the landlord even if he is of the category specified in Section 23-J, however, sub section (3) of Section 23-D relieves him of the burden of further proving that the requirement so proved by him is bona fide. This presumption can be destroyed either by the evidence led by the tenant or by the evidence led by landlord himself.

The landlord in his evidence has stated that he wants to starts his business in the suit-accommodation. He has sufficient funds as he has received certain amounts on his retirement as retrial benefits. Even otherwise, for a small business much amount of capital or experience of business is not required. Therefore, the application cannot be dismissed only on the ground that the landlord had no sufficient funds or experience for starting the business.

So far as the question of ill-health of the landlord is concerned, no evidence has been given to establish that because of ill-health, the landlord is unable to do his business. Even if the landlord has suffered an attack of brain haemorrhage, there is no evidence that he has not or will not recoup. In the absence of satisfactory medical evidence it cannot be said that the landlord is unable to do the business. From the evidence of the landlord it is also established that he has no other reasonably suitable accommodation of his own in his occupation for starting his business in the city of Tikamgarh.

The finding of the RCA that the landlord required the suit-accommodation bona fide for starting his business for which he has no other reasonably suitable accommodation of his own in his occupation for starting his business in the town concerned is based on proper appreciation of the evidence. There is no particular age for starting new business. We can see many persons working very hard in the old age running business or occupying high position, therefore, it cannot be said that due to old age the non-applicant landlord cannot start his new business.

Though the scope of revision u/s 23-E of the Act is larger than the revision u/s 115, C.P.C. and narrower than an appeal but I do not find any illegality or irregularity in the finding of the RCA, therefore, no interference in the order of RCA in this revision is called for.

Learned counsel for tenants/applicants in this revision has vehemently submitted that there is no material on record to the effect that the RCA was appointed by the Collector with the previous approval of the State Government. In the absence of proof of approval the appointment cannot be said to be legal. Therefore, the entire proceedings before the RCA are vitiated.

This contention also cannot be countenanced. The legality of the appointment of the RCA cannot be challenged either before the RCA himself or before the High Court in revision. Both these are collateral proceedings. It can only be challenged in direct proceedings to which the RCA is a party. The de facto doctrine applies to the instant case. An authority de facto is one who holds office under colour of lawful authority though his appointment defective and may later be found to be defective. Whatever be the defect of his title to the office, orders passed 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 the orders pronounced and acts done by authority de jure. Such is the de-facto doctrine, born of necessity and public policy, to prevent needless confusion and endless mischief. Two litigants litigating their private titles cannot be permitted to bring in issue and litigate upon the title of an authority to his office. An authority''s title to his office cannot be brought into jeopardy in that fashion. Therefore, the appointment cannot be challenged in this revision.

So far as Application No. 2-A-90(1) /2002-2003 against which Cr. Rev. Nos. 199/2004 is filed, is concerned, the landlord has stated that he is a retired government servant. He wants to start his business of electrical equipments and general goods. He has stated that he has also filed this application against tenant Asharam. Both the accommodations on their vacation shall be joined together. Both these accommodations are required for starting the business. The landlord has stated that he has been retired from government service. He has received sufficient amount of money as retiral benefits.

Counsel for tenants submitted that the landlord is suffering from haemorrhage and is not in a fit state of health to start business.

This contention cannot be accepted. As has been stated earlier while deciding this revision No. 257/2004 the old age cannot come in the way of starting the business. There is no evidence that the landlord is suffering from serious ailment and being an old person he cannot start the business. Therefore the RCA committed error in rejecting the application. From the evidence of the landlord his bona fide requirement for starting his business is established. It is also established that the landlord has no other reasonably suitable accommodation of his own in his occupation in the town of Tikamgarh.

This brings us to Civil Revision Nos. 197/2004 and 198/2004 in which the requirement of the suit-accommodations for son of the landlord has been pleaded. Admittedly the son of landlord is an educated unemployed person. Presently, he is not doing anything. Therefore, it cannot be said that the accommodations are not required by the landlord for starting the business by his son. So far as the funds and experience for business is concerned, it has been stated earlier that for a small business much amount of money is not required. Similarly, experience is also not necessary. Therefore, on this ground bona fide requirement of the landlord cannot be negatived. Once the requirement is established it will be presumed to be bona fide as the tenants could not show any material to rebut this presumption.

From the evidence of landlord it is established beyond reasonable doubt that the suit-accommodations mentioned in Cr. Revision Nos. 197/2004 and 198/2004 are required bona fide by the landlord for starting business by his son for which he has no other suitable accommodation of his own in his occupation in the town concerned.

In all the revisions, counsel for tenants vehemently submitted that admittedly a letter was written by the wife of the landlord to the tenants calling upon them to enhance the rent and in case of inability to vacate the accommodation. Such a letter cannot negative the requirement of landlord if otherwise it is found to be genuine. Landlord cannot be expected to sit idle after his retirement from the government service. He cannot be expected to keep his son without any work when he is unemployed and he has no job to do. Therefore, the requirement of the landlord of the suit-accommodations is held to be bona fide.

Learned counsel for tenants in all the revisions has also stated that the landlord and his son are presently living at Jabalpur. It cannot be said that a person living at Jabalpur will start his business at Tikamgarh.

This contention also cannot be accepted. If a person prefers to live at different place till the accommodation is vacated the bona-fides of his requirement cannot be doubted. The landlord cannot be expected to live at Tikamgarh itself till the accommodation is vacated, therefore, the ground that the landlord is living at Jabalpur cannot come in his way.

For the reasons stated above this revision (Civil Revision No. 257/ 2004) stands dismissed and Civil Revision Nos. 197/2004,198/2004 and 199/ 2004 are allowed. The orders impugned passed by the RCA refusing to direct eviction of tenants are set aside and applications filed by the landlord before the RCA for eviction of the tenants are allowed. However, the landlord shall be entitled to obtain the vacant possession of the accommodations, in dispute, after the expiry of the period of two months from the date of this order. Parties shall bear their own costs.