Rajesh Upadhyay vs Ramesh Kumar Shrivastava

N.K Agarwal, J.

Feeling aggrieved by the order dated 30th September, 2008 passed by the Rent Controlling Authority, Raipur in case No. 01-90(8) year 2006-07 whereby and whereunder eviction order has been passed against the applicant from the suit accommodation, the instant revision has been preferred/

Brief facts of the case giving rise to this revision are as under :-

(1) The respondent/applicant filed an application u/s 23(E). of the C.G. Accommodation Control Act (hereinafter referred to as "the Act") on the ground that the non-applicant is a retired employee of Bhilai Steel Plant from the post of; Mines Foreman. He being the owner of the suit accommodation let out the same to the applicant for 11 months at the rent of Rs. 2,000/- per month vide agreement dated 7-5-2003 for carrying out educational activities. He requires the suit accommodation bonafidety for the purpose of starting his own business and for that, he is not having any other reasonably suitable non-residential accommodation of his own in his occupation in the city of Raipur. It was further pleaded that the applicant had not paid rent since February, 2004. The applicant did not vacate the suit accommodation despite the notice therefore, the application has been filed.

(2) The applicant sought permission u/s 23(C) of the Act and after getting permission, filed his written statement. Learned Rent Controlling Authority framed issues. Parties led evidence. Learned Rent Controlling Authority on appreciation of the pleadings of the parties, evidence led, passed the eviction order against the applicant. Hence this revision.

(3) Shri B.P. Sharma, learned Advocate for the applicant assailed the impugned order mainly on the following grounds :

(i) It has not been proved by the non-applicant that he is a retired employee of Bhilai Steel Plant which is owned and controlled by the Central Government and as such entitled to file application u/s 23 (J) (ii) of the Act;

(ii) The person taking voluntary retirement cannot claim the status of special category of landlord u/s 23(J)(ii) of the Act;

(iii) Admittedly the suit accommodation was let out to the applicant for carrying out educational activities, a purpose which cannot be said to be nonresidential and therefore, the premises cannot be got vacated for non-residential purpose, a purpose contrary to the purpose for which the accommodation was let;

(iv) None of the documents filed by the non-applicant was exhibited in the case and thus cannot be read in evidence;

(v) Nothing has been filed to prove the fact that the non-applicant is landlord of the applicant.

(vi) Learned Rent Controlling Authority had not recorded issue-wise finding though 7 issues were framed,

(vii) It is not proved by the non-applicant that his need is bonafide.

(4) Per contra, Shri H.B. Agrawal, learned Sr. Advocate appearing for the respondent would submit that admittedly the non-applicant is a retired Government employee of Bhilai Steel Plant which is owned and controlled by the Central i Government; relationship of landlord and tenant is admitted by the applicant in his statement; the suit accommodation was let out for carrying out educational activity; as per Section 23(D) of the Act and Rule 16 of the Rules framed there under, the provisions contained in Section 14(2) (1) of C.P.C. and Order 20 Rule 5 of C.P.C. are not applicable. The Rent Controlling Authority is not a judicial authority like civil courts and they may commit procedural mistake but substantially the order has been passed covering everything. The procedure made applicable under the provisions is a summary procedure, the Court after recording a definite finding that the non-applicant requires the suit accommodation genuinely passed the eviction order; scope of interference under revision is limited and the order passed by the learned Rent Controlling Authority based on sound principle does not call for any interference and the revision deserves to be dismissed.

(5) I have heard learned counsel for the parties and perused the record as also the impugned order.

(6) Before considering the rival submissions made by the parties, it would be appropriate to advert to the relevant provisions of CG Accommodation Control Act and Civil Procedure Code.

Section 23-A Special provision for eviction of tenant on ground of bonafide 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 on one or more of the following grounds for an order directing the tenant to put the landlord in possession of the accommodation, namely:-

(a) that the accommodation let for residential purposes is required "bonafide" by the landlord for occupation as residence for himself or for any member of his family, or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned,

Explanation - For the purposes of this clause, "accommodation let for residential purposes" includes -

(i) any accommodation which having been let for use as a residence is without the express consent of the landlord used wholly or partly for any non-residential purpose;

(ii) any accommodation which has not been let under an express provision of contract for non" residential purpose;

(b) that the accommodation let for non-residential purposes is required "bonafide" 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 suitable non-residential 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-C. Tenant not entitled to contest except under certain circumstances -(1) The tenant on whom the summons is served in the form specified in the Second Schedule shall not contest the prayer for eviction from the accommodation unless he files within fifteen days from the date of Service of the summons, an application supported by an affidavit stating the grounds on which he seeks for contest the application for eviction and obtains leave from the Rent Controlling Authority as hereinafter provided, and in default of his appearance in pursuance of the summons or in default of his obtaining such leave, or if such leave is refused, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant. The Rent Controlling Authority shall in such a case pass an order of eviction of the tenant from the accommodation:

Provided that the Rent Controlling authority may, for sufficient cause shown by the tenant, excuse the delay of the tenant a entering appearance or in applying for leave to defend the application for eviction and where "ex-parte" order has been passed, may set it aside.

(2) The Rent Controlling Authority shall, within one month of the date of receipt of application, give to the tenant, if necessary, leave to contest the application, if the application supported by an affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the accommodation on the ground specified in section 23-A.

Section 23-D. Procedure to be followed by Rent Controlling Authority or grant of leave to tenant to contest - Where leave is granted, to the tenant to contest the application, the Rent Controlling Authority shall commence the hearing of the application as early as practicable and decide the same, as far as may be, within six months of the order of granting of leave to the tenant to contest application.

(2) The Rent Controlling Authority shall, while holding an enquiry in a proceeding to which this Chapter applies, follow 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 (IX of 1887). The Rent Controlling Authority shall as far as possible, proceed with the hearing of the application from day to day.

(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.

Section 23-J. Definition of landlord for the purposes of Chapter III-A - For the purpose of this Chapter landlord means a landlord who is -

(i) xxx xxx xxx

(ii) a retired servant of a company owned or controlled either by the Central or State Government; or

(7) The contentions raised by Shri Sharma has no merit on following grounds:

(8) As far as first contention is concerned, the applicant in his application for permission to defend u/s 23(C) of the Act has stated that the applicant is residing in Rajnandgaon after his retirement. In reply to para 1 of the application filed by the respondent, it was not denied by the applicant that the respondent is a retired servant of Bhilai Steel Plant since 1-3-2005. Nothing has been said during trial that the respondent is not retired employee of Bhilai Steel Plant. In the affidavit filed under Order 18 Rule 4 of C.P.C, the applicant admitted that the respondent retired on 16th March, 2005 and, therefore, a fact which has not been denied by the opposite party is deemed to be admitted and, no further proof is necessary. More over; the applicant is not disputing the fact that the retired servant of Bhilai Steel Plant comes under the category of an employee of a company owned and controlled by the Central Government.

(9) So far as the second contention is concerned, the language used in Section 23(J)(ii) is clear and unambiguous. The dictionary meaning of word "Retire" is "withdraw". (Advanced Law Lexicon 3rd Edition by P. Ramanatha Aiyar page 4120). The meaning of "retirement" is the age at which somebody ceases full-time employment, generally at his or her own choice or sometimes written into a contract of employment. It is not necessarily the same age as pensionable age. (Advanced Law Lexicon 3rd Edition by P. Ramanatha Aiyar page 4121). The word "retirement" takes within its fold all kinds of retirement. When it is used in the context of superannuation, it would mean that it has relevance and relates to discharge from a post on account of the age fixed for such retirement. Therefore, it is not correct to say that only a person who retires on attaining the age of superannuation is entitled to seek eviction in terms of Section 23(J)(ii) of the Act. More over, this point was never raised by the tenant during trial. No distinction has been made by the Legislature between a retired servant and a servant who retires voluntarily.

(10) So far as the 3rd contention raised by Shri Sharma is concerned, even by stretch of imagination, it cannot be said that the purpose of running a school or carrying out educational activities is not a non-residential purpose,

(11) So far as the 4th contention is concerned, it is true that un-exhibited document cannot be read in evidence. But here in the instant case, the finding recorded by learned Rent Controlling Authority is based on admissions in the pleadings as well as in the evidence by the tenant and no fault can be found in it.

(12) So far as the 5th contention is concerned, the tenant applicant categorically admitted the relationship of landlord and tenant with the respondent in para 2 (A) of the application for permission to defend u/s 23(C) of the Act; in para 3 of the written statement and in his statement on oath.;

(13) So far as 6th contention is concerned, true it is that learned Rent Controlling Authority has not recorded issue-wise finding but a perusal of order of learned Rent Controlling Authority would reveal that the order has been passed after discussion and recording every aspect of the matter covering all the relevant issues involved in the case and, therefore, it cannot be said that technical flaw committed by learned Rent Controlling Authority in not recording issue-wise finding in the summary proceedings, has occasioned failure of justice or caused any prejudice to the tenant.

(14) So far as the 7th contention raised by Shri Sharma is concerned, that the landlord has not proved his bona fide need, has also no substance. It is not in dispute that the initial burden has been discharged by the landlord by pleading his case specifically in terms of Section 23(A) of the Act and also by examining himself on that. In an application for permission to defend, the bona fide of the requirement of the landlord was assailed by the tenant on the ground that the landlord is not in bona fide need of the premises but the suit has been initiated in order to sell it out at a hire price after getting its vacant possession but the tenant failed to substantiate the said ground. Therefore, he failed to rebut the presumption of law arose in favor of the landlord in terms of sub-section (3) of Section 23 (D) of the Act.

(15) In view of the above, I do not see any force in this revision. It deserves to be and is accordingly dismissed.