Madanlal vs Mitthulal Sharma

Dr. T. N. Singh, J.

Umpteen times counsel were warned that I shall hear this matter only on the question of jurisdictional competence of Authority because the jurisdiction of this Court to pass any order in Revision u/s 23E is not so wide as to interfere on facts except such facts as are jurisdictional facts. I am happy that counsel heeded my advice and limited their submissions to the question of jurisdiction which arises in this matter in two ways.

First few skeletal facts to which my attention is drawn by counsel in the course of their submissions. It is admitted that an application u/s 23A of the M. P. Accommodation Control Act, 1961, for short, the ''Act'', was filed on 28-11-1983 by the non-petitioner for an order of eviction against the tenant. On 12-12-1983, the tenant (herein the petitioner) made a prayer u/s 23C of the Act for leave to defend the application which was granted on 11-11-1984. Thereafter, he filed on 26-2-1984, his written statement to contest the application on merits. The admitted legal position is also that on 10-1-1985, Madhya Pradesh Accommodation Control (Amendment) Ordinance, 1985, for short, the Ordinance, had come into force which was later adopted by the State Legislature and has since become a part of the Act. During the course of trial on 5-4-1985, the Rent Controlling Authority, for short, the ''Authority'' which had retained seisin of the matter after promulgation of the Ordinance aforesaid, passed an order on 5-4-1985 purporting to decide the question of its jurisdictional competence not in terms of Clause 10 of the Ordinance, but on the basis of decision on the question as to whether the plaintiff, who had retired from Government service in 1968, was entitled to invoke Section 23J which had come into effect in 1985. In the course of trial, parties adduced evidence and eventually, the Authority allowed the application and ordered eviction of the petitioner from the suit premises.

The two-fold objection to the jurisdictional competence of the Authority may be considered now. Firstly, it is contended that at no point of time, in the course of pendency of the proceedings before the Authority, any order was passed by the Authority to determine its own jurisdictional competence suo motu as required under Clause 10 of the Ordinance aforesaid. In support of this submission, reliance is placed on a decision of this Court in the case of Rambharose vs. Shashi Sharma, 1986 1 MPWN 15 : 1986 MPNCJ N 25. The second contention of Shri Lahoti, who appears for the petitioner, is that in passing the impugned order on 5-4-1985 or even passing subsequendy the final order of eviction, the Authority did not apply its mind to the requisite condition-precedent contemplated under law for ordering eviction u/s 23A, namely, that land-lord/non-petitioner was already in Government service when the tenant (herein the petitioner) was in occupation of the suit premises and, therefore, he was entitled to pursue proceedings for petitioner''s eviction before the Authority in virtue of the provisions of Section 23J of the Act.

In support of his submissions, Shri Lahoti has vehemently urged that the question of jurisdictional competence was raised as early as in the application for leave to defend and the same objection was reiterated in paras 13, 14 and 19 of the written statement. He has contended that it was the bounden duty of the Authority in rendering its order on 5-4-1985 to apply its mind to the facts stated in the written statement filed on 26-2-1984. A plain reading of the order passed on 5-4-1985, counsel contends, shows that the disputed facts projected in the pleadings received no consideration at all of the Authority and the latter accordingly failed to render judicial decision on the question of its jurisdictional competence whether to deal the non-petitioner''s application made u/s 23A or to pass therein the final order of petitioner''s eviction. The Authority decided the question perfunctorily, with reference to the pleadings, as to whether the provisions of Section 23J could be given retrospective effect; and it did nothing else. Because it took the view on 5-4-1985 that although the plaintiff had retired in 1968 and he could validly invoke the provisions of Section 23J which had come on the Statute Book as late as on 10-1-1985, it remained satisfied with that decision and in rendering the final order on 24-11-1986 the Authority thought that it was not necessary to consider afresh whether at the stage of passing the final order, it had the jurisdiction to do so.

On behalf of the landlord (herein the non-petitioner), Shri Acharya has taken great pains to distinguish the decisions cited and has also urged that at this stage, it is not open to the tenant/petitioner (defendant before the Authority) to agitate the question of jurisdictional competence because the order passed on 5-4-1985 has remained unchallenged. On facts also, it is submitted that the vague objection to jurisdictional competence is not liable to be sustained in law in that in his application u/s 23A (which was considered as a plaint in the case) there was a specific averment that the tenant was in possession of the suit premises since 1965 and this fact had not been denied in categorical terms in the written statement and further that the mere assertion in the written statement that the tenancy was created in 1969, made in paras 13, 14 or 19 of the written statement would not avail the tenant/petitioner. It is also contended that tenant''s reliance on the Division Bench decision of this Court in the case of B. Johnson vs. C. S. Naidu, 1985 MPRCJ 296, or that of the Supreme Court in the case of Mrs Winifred Ross and Another Vs. Mrs Ivy Fonseca and Others, , is misconceived and that no assistance can be derived by him from any of those decisions.'' Shri Acharya further contended that I may very well consider the decision of a learned Single Judge of this Court rendered in the case of Virangana Laxmi Bai Gurukul Samiti, 1985 MPRCJ 178, and an unreported decision of another learned Single Judge of this Court, rendered in the case of Harishankar Verma, Civil Revision No. 729 of 1985, decided on 17-4-1986 because the law laid down in those decisions squarely applies to the facts of this case and that law has been correctly laid down therein, which I should consider binding on the Authority. The impugned order being in conformity therewith is not liable to interference in my hands.

6-7. However, it is necessary to set the record right immediately because my attention is drawn to the order passed by their Lordships of the Supreme Court in the petition for Special Leave to Appeal (Civil) No. 9622 of 1985 wherein the judgment rendered in Virangana Laxmi Bai (supra) was challenged. It is in following terms :

We do not see any reason to interfere at this stage. It will be open to the petitioner to raise this question at a later stage if the matter is finally decided against him. SLP is dismissed.

I see substantial force in the contention advanced on behalf of the petitioner that in view of the decision of their Lordships, the law laid down by this Court in the decision reported in 1985 MPRCJ 178 must be deemed res integra as the challenge to the decision was kept alive and the "question" was left open for decision at later stage. It is not necessary, therefore, for me to say anything on the said decision except that its binding effect on the subordinate courts has ceased and it is also open to me to take an independent view of the matter for the additional reason that the subsequent Division Bench decision of this Court in B. Johnson''s case (supra) has taken a view based on Apex Court''s decision in Winifred Ross (supra) which is in direct opposition to the view expressed in 1985 MPRCJ 178. I would venture the view that B. Johnson (supra) has impliedly overruled it.

As to the unreported decision cited by Shri Acharya, I may only say that the view taken therein has not been generally accepted Indeed, I have taken a different view on the scope of the presumption envisaged u/s 23D(3) in the case of Sunil Cloth Stores, 1986 MPRCJ 147, which has been followed in another decision of this Court by another learned Single Judge of this Court in the case of Gyanibai 1987 MPLJ 113. It has accordingly been consistently held that the right of a landlord to sue u/s 23A does not ipso facto create a presumption in his favour to the extent that he has not to fulfil the basic requirement of satisfying the Authority that he had a good case to go to trial u/s 23A so as to shift the burden to the tenant to rebut landlord''s case. In other words, no statutory presumption as to jurisdiction of the Authority, whether in terms of Section 23J or Section 23A can be read in the provisions of Section 23J itself or even of Section 23D and the statute does not absolve the Authority from the duty to render a categorical decision on the twofold question of landlord being such a landlord as is covered by Section 23J and that he had made a prima facie case u/s 23A for tenant''s eviction.

What survives importantly for my consideration is the question as to whether reliance on Rambharose (supra) or B. Johnson (supra) and indeed on the decision of the Supreme Court in Winifred (supra) is appropriate and does avail the petitioner. True it is that in Virangana Laxmi Bai (supra), Winifred''s case (supra) was distinguished, but in B. Johnson (supra), Winifred (supra) was relied on to say that the Act conferred "benefit only on those retired persons who were landlords while in service and avail the benefit after retirement in respect of a tenancy subsisting during his service". Shri Acharya has, however, taken pains to distingusih the decision in B. Johnson''s case (supra) saying that it merely spoke of the ambit and purport of Section 23A but what the Division Bench spoke I have just quoted and I have only to read para 9 of Winifred''s case (supra) itself. It was held by the Apex Court that "to save the relevant provision of the Bombay Act from the challenge under Article 14 of the Constitution, the provision had to be read down as conferring benefit only on those members of armed forces who were landlords of the premises in question while they were in service even though they may avail of it after their retirement". Law is well-settled that even obiter dicta of the Supreme Court are binding on all subordinate Courts, but in para 9 is to be read the ratio itself of the decision, on the constitutional validity of the provision in question. Indeed the same situation arose also in B. Johnson (supra) wherein a Division Bench of this Court was called upon to consider the constitutional validity of Section 23J.

In so far as Rambharose (supra) is concerned, I find unfortunately no substance in the contention of Shri Acharya that on facts the law laid down therein must be held inapplicable to the instant case. True it is that in that case, the landlord claiming benefit u/s 23J was a person who claimed to be physically handicapped, but in this case also the landlord claims the benefit of same Section 23J though he belongs to a different class, namely, a "retired servant of any Government including a retired member of defence services". In Rambharose, it was held that the legal presumption contemplated u/s 23D can be availed only when a judicial decision is rendered in terms of Clause 10 of the Ordinance deciding first the question as to whether the Authority had jurisdiction to retain for decision the application made u/s 23A so as to have jurisdiction at subsequent stage to invoke Section 23D. It was held that the question as to whether the claim of the landlord u/s 23J was tenable in law was the question which had to be decided first and earlier. Indeed, first in the point of time when decision is rendered on the question of jurisdictional competence under Clause 10 of the Ordinance which, as held in Krishan Singh 1986 MPRCJ 102, had to be done judicially.

On a perusal of the order dated 5-4-1985 or even the impugned order dated 24-11-1986 by which the application of the landlord/non-petitioner was finally disposed of and allowed and eviction of the petitioner ordered, it has been clear that there is no finding worth its name in any of them as to whether the landlord was such as could avail the benefit of Section 23J and that the proceeding before the Authority was, therefore, competent. Indeed, Shri Acharya fairly concedes that nothing has been said but he concedes that nothing remained to be said by the Authority as to its jurisdictional competence because it had already decided the question on 5-4-1985. However, as I have earlier observed, I find nothing to read even in the order passed on 5-4-1985 to take the view that the rival contentions of parties on pleadings were at all considered in light of the decision rendered by their Lordships of the Supreme Court in Winifred''s case (supra) or by the Division Bench of this Court in B. Johnson (supra).

True it is that the order passed on 5-4-1985 has remained unchallenged, but the fact also is that no order in terms of Clause 10 of the Ordinance was rendered by the Audiority while retaining seisin of the matter even after promulgation of the Ordinance on 10-1-1985 and passing in the pending proceeding the order dated 5-4-1985. Indeed, in that order even the minimum which the Audiority was required to do to discharge its statutory duty contemplated under Clause 10 in accordance with law laid down in Rambharose (supra) was not done. I have little difficulty, therefore, to take the view that the entire proceeding of the Audiority after 10-1-1985 being without jurisdiction, the order passed on 5-4-1985 or even the other orders passed in the proceedings thereafter, must be held to be without jurisdiction and non-est in law. It is trite law that any question touching the jurisdiction of any forum to entertain any lis is a question which can be raised at any stage and when raised it has to be decided Indeed Section 23E in terms imposes a duty on this Court to decide the question of "regularity" of the proceeding before the Audiority when raised, no matter when it is raised.

The fact of paramount importance and relevance to the question is that when in the written statement, specifically in para 19, the question of jurisdictional competence was re-agitated, it was the duty of the Audiority to render a fresh decision on the question without being obsessed by what it had held earlier on 5-4-1985. In the instant case, this has not been done and as rightly contended, the Authority wrongly took the view that it had not to do so as it had already decided the question on 5-4-1985.

At this stage of dictation, Shri Acharya stands up to submit that Issue No. 1 must be considered to embrace the question mooted hereinabove and that issue having been decided, the Authority cannot be faulted. However, even this contention of learned counsel, I find difficult to accept because the issue is in the following terms :

Kya Avedak Sevanwritta Karmachari Hain Aur Use Makan Ki Avashyakata Hain ?

It passes my comprehension how it can be said that by the issue aforesaid the Authority purported to decide its own jurisdictional competence in terms of Clause 10 of the Ordinance or even in terms of the decision rendered by the Lordships of the Supreme Court in Winifred (supra) and by Division Bench decision of this Court in B. Johnson (supra) on the scope and interpretation of Section 23J of the Act. If anything more has to be said, I have only to see what was the decision on the issue. In deciding the issue, the Authority merely held that the applicant (plaintiff) had the bona fide requirement of the suit house because part of the house which was in his possession was not sufficient to satisfy his requirement. This decision evidently was on the merit of the case, dealing with the question only as to whether the plaintiff had bona fide need of additional accommodation, in addition of the rooms which he already possessed prior to the filing of the application. It decided nothing else except perhaps also taking the view that the plaintiff was a retired Government servant without deciding further the question as to whether he was landlord of the suit premises when he retired and tenancy of the suit premises subsisted when he was in service, which it should have done to satisfy the law laid down in Winifred (supra) and B. Johnson (supra). The violation of supreme judicial dicta in Winifred (supra) and of the Division Bench decision in B. Johnson (supra) is writ large on the face of the impugned order.

So much for today on the law. I do not find any compelling necessity to add anything more as I do not find anything more in the facts of the instant case which is required to be treated not by law laid down in the decisions above-referred of Supreme Court and by a Division Bench of this Court and other decisions of this Court, noted in this judgment.

In the result, the petition is allowed. The impugned order is set aside. However to prevent miscarriage of justice, as Shri Acharya has repeatedly hammered that I do so I consider it appropriate to make certain directions in this case. I direct that the evidence recorded as also the pleadings on record would be treated valid and it shall be competent for the Authority to read the same afresh in rendering its final decision first on the question as to whether the Authority had the jurisdiction under Clause 10 of the Ordinance to decide the application u/s 23A, to carry out the judicial mandate of Rambharose (supra). Only when the Authority takes the view that it had the jurisdiction to try the application, then it would render a final decision afresh on merits to decide finally the application, keeping in view the law laid down in the decisions referred earlier in this judgment. Because the question of jurisdictional competence in terms of Clause 10 has been held to have been skipped over by the Authority, I consider it appropriate to direct further that it shall be open for the parties to adduce such further evidence as may be considered necessary for rendering decision in terms of Clause 10 of the Ordinance.

Let the records go down at once. Parties shall appear before the Authority on 20th May, 1987 and take a date of hearing thereat for disposal of the matter in accordance with the direction herein made. No costs.