Ramji Prasad vs State Of Jharkhand And Ors

The present writ petition is taken up today through Video conferencing.

At the request of the learned counsel for the petitioner, the defects as pointed out by the office are ignored.

The present writ petition has been filed for quashing the notice as contained in letter no. 662 dated 08.09.2020 (Annexure-6 to the writ petition) issued by the respondent no. 4 - the Circle Officer, Gumla, whereby the said authority has directed the petitioner to vacate the premises mentioned in the said impugned notice. Further prayer has been made for issuance of direction upon the respondents to follow the mandate of the provisions of Section 36 and 39 of the Jharkhand Building (Lease, Rent & Eviction) Control Act, 2011 (hereinafter referred to as "the Act, 2011"). The petitioner has also made the other related prayers.

The learned counsel for the petitioner submits that the impugned notice as contained in letter no. 662 dated 08.09.2020 passed by the respondent no. 4 is completely dehors the provisions of the Act, 2011 as the respondent no. 4 has no authority under the said Act to issue any direction to the petitioner for vacating the premises in question. It is further submitted that the respondent no. 3 - the Rent Controller-cum-Sub-Divisional Officer, Gumla has passed the order in Eviction Suit No. 49 of 2020 preferred by the respondent no. 6 on 04.09.2020. However, the respondent no. 4 hurriedly issued the impugned notice of eviction just after four days of passing of the order i.e., on 08.09.2020 which is completely contrary to the provisions of Section 36 and 39 of the Act, 2011. The learned counsel for the petitioner also submits that till filing of the writ petition, copy of the order dated 04.09.2020 passed by the respondent no. 3 was not received by the petitioner and as such, the same could not be filed along with the writ petition. However, the said order passed by the respondent no. 3 was received by the petitioner in the afternoon of 11.09.2020 and after receiving the copy of the order dated 04.09.2020, the petitioner immediately filed an appeal under Section 36 of the Act, 2011 before the Appellate Authority i.e., the respondent no. 5 - the Deputy Commissioner, Gumla which has been registered as Eviction Appeal No. 22 of 2020-21. Under the said situation, the impugned notice dated 08.09.2020 passed by the respondent no. 4 being contrary to law, is liable to be set-aside.

Mr. Gaurav Abhishek, the learned AC to AG, submits that the impugned notice of eviction dated 08.09.2020 issued by the respondent no. 4 itself suggests that a copy of the order dated 04.09.2020 passed by the respondent no. 3 in Eviction Suit No. 49 of 2020 was annexed therewith. The learned Senior Counsel for the petitioner is not correct in submitting that the copy of order dated 04.09.2020 was received by the petitioner on 11.09.2020. Admittedly, the petitioner has already moved in appeal before the respondent no. 5 and, therefore, the present writ petition is not maintainable, rather the petitioner should pursue the said appeal before the respondent no. 5.

Mr. Arun Kumar, Advocate submits that he has instruction to appear on behalf of the respondent no. 6 and he shall be filing Vakalatnama today itself. It is also submitted that the order dated 04.09.2020 passed by the respondent no. 3 is completely justified and legal. The impugned notice of eviction dated 08.09.2020 issued by the respondent no. 4 is consequential to the order of eviction dated 04.09.2020 passed by the respondent no. 3 in Eviction Suit No. 49 of 2020 and as such, the same requires no interference of this Court.

Heard the learned counsel for the parties and perused the content of the writ petition. The respondent no. 3 has passed the order of eviction against the petitioner (tenant) in Eviction Suit No. 49 of 2020 filed by the respondent no. 6. Section 36 of the Act, 2011 reads as under:

Appeal. - (1) Any person aggrieved by an order passed by the Controller may, within fifteen days from the date of receipt of such order by him, prefer an appeal in writing to the Appellate Authority.

(2) On such appeal being preferred, the Appellate Authority may -

(a) after perusing the memorandum of appeal and hearing the appellant, if necessary summarily dismiss the appeal, or

(b) call for records of the case from the Controller and after examining such records and, if necessary, making such further enquiry as he thinks fit decide the appeal,

(c) such appeal shall be decided within the six months.

(3) Subject to the provision of sub-section (2), the decision of the Appellate Authority and subject only to such decision where an appeal lies, an order of the Controller shall be final and shall not be liable to be questioned in any Court of law whether in suit or other proceeding by way of appeal or revision.

On perusal of the provisions of Section 36 of the Act, 2011, it would be evident that any person aggrieved by the order passed by the Rent Controller has the liberty to prefer an appeal within fifteen days from the date of receipt of the order of the Rent Controller. The learned counsel for the petitioner on instruction, has contended that the order dated 04.09.2020 passed by the respondent no. 3 was received by the petitioner in the afternoon of 11.09.2020 i.e., after three days of issuance of impugned notice dated 08.09.2020 by the respondent no. 4. The said fact has, however, been disputed by the learned counsel for the State and the respondent no. 6 by submitting that the impugned notice dated 08.09.2020 itself mentions the fact that the same has also accompanied the order dated 04.09.2020 passed by the respondent no. 3.

Be that as it may. Even if it is assumed that the order dated 04.09.2020 passed by the respondent no. 3 has been received by the petitioner on 08.09.2020 alongwith the impugned notice, the same cannot justify the notice dated 08.09.2020 as it was issued by the respondent no. 4 prior to lapse of fifteen days from the date of issuance of the order dated 04.09.2020 passed by the respondent no. 3 much less the receipt of the same by the petitioner. No notice of eviction can be issued within the period of fifteen days from the date of service of the orders passed by the Rent Controller i.e., the period during which the aggrieved person has the liberty to prefer appeal.

Now, coming to the question of jurisdiction of the respondent no. 4 in issuing the impugned notice of eviction against the petitioner, reference may be made to the provisions of Section 39 of the Act, 2011 which read as under:

Execution of orders of Controller, Appellate Authority and Commissioner. - (1) Every order of the Controller passed under this Act, where no appeal against such order has been preferred under sub- section (1) of Section 36, every order of the Appellate Authority on appeal under sub-section (2) of Section 36 and every order of the Commissioner passed in revision under Section 37 shall be executed by the Controller as if such orders where an order passed by such Controller.

(2) the Controller, Appellate Authority and the Commissioner, in exercise of the powers conferred upon it under this Act shall be treated as a Court under Sections 195 and 340 of Criminal Procedure Code, 1973 (Act 2 of 1974) and any proceedings before it shall be regarded as judicial proceedings under Sections 193 and 228 of Indian Penal Code.

On perusal of the provisions of Section 39 of the Act, 2011, it may be construed that as per sub-section (1), every order of the Controller, the Appellate Authority and the Revisional Authority has to be executed by the Controller himself. The Circle Officer has not been conferred any such power of issuing notice of eviction under the provisions of the Act, 2011 to implement the order of the Controller. Hence, the impugned notice dated 08.09.2020 issued by the respondent no. 4 being without jurisdiction cannot be sustained in law and as such, the same is quashed/set-aside. Since the petitioner has already preferred an appeal against the order dated 04.09.2020 passed by the respondent no. 3 in Eviction Suit No. 49 of 2020 which has been registered as Eviction Appeal No. 22 of 2020-21 in the court of respondent no. 5, there is no need to go into the merit of the contention of the respective parties. The petitioner as well as the respondent no. 6 may pursue their respective cases before the respondent no. 5.

The writ petition is accordingly disposed of. It is, however, clarified that the present order will not come in the way of the Controller to take subsequent steps in accordance with law.