Urmila Devi, aged about 55 years, wife of late Ramawtar Sharma, resident of Argaghat v. 1. The State of Jharkhand through Deputy Commissioner, Giridih, having its office at Giridih
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 1652 of 2018 Urmila Devi, aged about 55 years, wife of late Ramawtar Sharma, resident of Argaghat Road, Punjabi Mohalla, P.O., P.S. & District Giridih … … Petitioner Versus 1. The State of Jharkhand through Deputy Commissioner, Giridih, having its office at Giridih, P.O., P.S. & District Giridih 2. Sub-Divisional Officer, having its office at Giridih, P.O., P.S. & District Giridih 3. Suman Samanta, son of late Rashbihari Samanta, resident of Kutchery Road, Ambedkar Chowk, P.O., P.S. & District Giridih 4. Ranjeet Kumar Swarnkar, S/o Bhim Lal Swarnkar 5. Vikash Swarnkar, S/o Bhim Lal Swarnkar, Respondent Nos. 4 and 5 are R/o Madhawadih, P.O. Mahesh Munda, P.S. Bengabad, District Giridih, at present residing at Darjee Mohalla, Tundi … … Respondents Road, P.O. & P.S. Giridih, Dist. Giridih CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- --- For the Petitioner : Mr. Rajendra Krishna, Advocate
Legal Reasoning
Mr. Pratyush Shaunikya, Advocate Mr. Shubham Mayank, Advocate For the Resp. No. 3 : Ms. Prerna Jhunjhunwala, Advocate For the Resp. Nos. 4 & 5 : Mr. Himanshu Kr. Mehta, Advocate Mr. Vidhan Kr. Singh, Advocate Mr. Rishav Raj, Advocate For the State : Mr. Rakesh Kumar Shahi, Advocate 18/30th September 2024 --- 1. Heard the learned counsel for the parties. 1 2. This writ petition has been filed challenging the order dated 08.03.2018 passed by the learned Sub-Divisional Officer, Giridih in Execution Case No. 06/2017 wherein a direction has been passed to deposit the arrears of rent and to hand over the vacant possession of the shop to the respondent No. 3. Arguments of the petitioner 3. The learned counsel for the petitioner while assailing the impugned order has submitted that an order was passed in Case No. 01 of 2012 HR whereby the application filed by the respondent no.3 for fixation of fair rent under Section 5 of the Jharkhand (Leases, Rent and Eviction) Control Act, 2000 was allowed but the order of the Executing Court directing the petitioner to evict the premises was wholly without jurisdiction. The learned counsel has also submitted that an eviction suit filed by the respondent No. 3 being Eviction Suit No. 01 of 2004 was still pending and the Executing Court while executing the order of fair rent had directed for eviction of the premises. 4. The learned counsel further submits that vide order dated 09.04.2018 passed by this Court, the operation of the impugned order dated 08.03.2018 was stayed subject to the condition that the petitioner shall pay Rs. 2,00,000/- to the respondent No. 3 in two monthly installments. For some reason, the direction for payment of Rs. 2,00,000/- was not complied which was brought to the notice of this Court on 14.06.2018. However, the same was duly complied as is apparent from the order dated 27.07.2018. He has submitted that on 27.07.2018, the interim order dated 09.04.2018 was directed to continue. 5. The learned counsel submits that there was an interim order passed in favour of the petitioner upon deposition of Rs. 2,00,000/- and therefore the petitioner could not have been evicted from the premises. He submits that the interim order has to be treated as an ‘order in rem’ for all practical purposes and therefore neither the respondent No. 3 nor any other person could have evicted the petitioner from the premises. 6. The learned counsel submits that one interlocutory application being I.A. No. 6527 of 2024 has been filed by the petitioner seeking restoration of possession of the property. He also submits that another interlocutory 2 application being I.A. No. 8541 of 2024 has been filed wherein a prayer has been made for stopping construction over the property. The learned counsel submits that in the subsequent interlocutory application, a copy of the FIR has been annexed alleging that the petitioner has been evicted by the interveners who are the subsequent purchasers of the property from the respondent No. 3. The learned counsel submits that the intervention application was also allowed by this Court and therefore the interim order passed by this Court is binding on the interveners and the interveners could not have evicted the petitioner from the property. 7. The learned counsel has also drawn attention of this Court to the order dated 20.12.2023 whereby the intervention application was allowed. He has also referred to order dated 27.08.2024 wherein interim order was passed directing to maintain status quo as it existed on 27.08.2024 and by the said order, the petitioner was directed to deposit Rs. 4,00,000/- before the Rent Controller, Giridih in the Execution Case. The learned counsel submits that the amount of Rs. 4,00,000/- has already been deposited before the Executing Court. 8. The learned counsel submits that considering the totality of the facts and circumstances of this case, the respondent Nos. 4 and 5 who are the subsequent purchasers of the property have tried to over reach of the order of this Court and have dispossessed the petitioner and consequently the application for restoration of possession of the property to the petitioner be allowed. 9. The learned counsel has also submitted that vide order dated 27.08.2024, the Deputy Commissioner, Giridih was directed to make an enquiry to the effect as to whether the petitioner has been forcefully evicted from the premises or not and to submit a report to this Court. A report has been submitted by the learned counsel for the State, a copy of which has been provided to the learned counsel for the petitioner and the learned counsel for the petitioner submits that as per the report, the Deputy Commissioner could not ascertain the date on which the petitioner has been evicted. He has also submitted that the report also indicates that there was an FIR lodged by the 3 respondent No. 4 and 5 in connection with the same incident for which the petitioner has lodged the FIR on 18.06.2024 and thus there are case and counter case between the parties. He has further submitted that the report also reveal that the shop premises has been evicted and construction is going on. Arguments of the State 10. Learned counsel appearing on behalf of the State has submitted that the report of the Deputy Commissioner reveals that there are case and counter-case going on between the parties. A reference has also been made to the Eviction Suit No. 06 of 2017 and the Deputy Commissioner has not been able to give a particular date on which the petitioner has been evicted. It also reveals that it was the stand of the co-respondent that the petitioner has suo-moto evicted the premises. Arguments on behalf of the respondent No. 3 11. Learned counsel appearing on behalf of the respondent No. 3 has submitted that the respondent No. 3 is entitled for the rent for the period during which the petitioner has remained in possession of the property. The amount of Rs. 4,00,000/- has already been deposited before the Executing Court and the Executing Court be directed to hand over the amount to the respondent No. 3. The learned counsel has also submitted that there has been no violation of any interim order by this Court, so far as the respondent No. 3 is concerned. She has also submitted that there is no legal bar in transferring the property even if it is under the possession of a tenant. She has submitted that the property was transferred by way of registered deed as back as on 11.10.2019 in favour of respondent Nos. 4 and 5. Argument of the respondent Nos. 4 and 5 12. The learned counsel appearing on behalf of the respondent Nos. 4 and 5 has referred to their reply dated 19.08.2024 to I.A. No. 8541 of 2024 and has submitted that a suit for recovery of possession being Original Suit No. 111 of 2024 has been filed on 03.05.2024 by the petitioner in the court of Civil Judge (Junior Division) Munsiff, Giridih under Section 6 of the Specific Reliefs Act and an FIR was also lodged on 18.06.2024. 4 Findings of this Court 13. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that an order for fixation of fair rent was passed by the Sub-Divisional Officer, Giridih in Case No. 01 of 2012 HR under Section 5 of the Jharkhand (Leases, Rent and Eviction) Control Act, 2000 wherein the rent was fixed @ 10,000/- per month made effective from March 2013. The matter was taken up in appeal which was numbered as House Rent Appeal No. 03 of 2013 and the appeal was dismissed on 19.01.2017. The matter was taken up in Execution which was numbered as Execution Case No. 06 of 2017. In the said execution case, the impugned order dated 08.03.2018 was passed wherein the petitioner was directed to deposit an amount of Rs. 6,00,000/- being the dues from March 2013 to February 2018 and a further direction was issued to evict the tenanted premises which was a shop. The cause of action to file this case arose by alleging that the Executing Court had gone beyond the orders passed and had no jurisdiction to direct eviction of the tenanted premises. 14. Considering the facts and circumstances in connection with order of eviction, this Court is of the considered view that in a proceeding for fixation of rent and realization of rent where final order has been passed and the matter is taken up in execution proceedings, the Executing Court had no jurisdiction to direct the petitioner to evict the premises and consequently, the order dated 08.03.2018 directing the petitioner to evict calls for interference. Accordingly, the order dated 08.03.2018 to the extent it directs the petitioner to evict the premises is hereby set-aside. So far as the other portion of the order dated 08.03.2018 is concerned, the same does not call for interference. 15. Now it is to be considered as to the subsequent developments which had taken place during the pendency of this case. 16. It appears that on 09.04.2018, an interim order was passed in favour of the petitioner whereby the operation of the impugned order dated 08.03.2018 passed in the execution case was stayed subject to the condition that the 5 petitioner shall pay Rs. 2,00,000/- to the respondent No. 3 in two monthly installments. The said direction of payment of Rs. 2,00,000/- was complied though belatedly as is apparent from the order dated 27.07.2018 and on that day, the interim order dated 09.04.2018 was directed to continue. 17. This Court is of the considered view that the order dated 09.04.2018 and also the order of its continuation passed on 27.07.2018 cannot be said to be an ‘order in rem’ as argued by the learned counsel for the petitioner. The order of stay was binding on the executing court and the respondent No. 3 who was party in the proceedings for fixation of rent and were party in the execution case at the relevant point of time. 18. It further appears that the respondent No. 3 has sold the property by a registered sale deed to the respondent Nos. 4 and 5 vide sale deed dated 11.10.2019. There was no interim order passed by this Court with regard to maintain any status-quo with respect to the property and accordingly no argument as such has been advanced by the learned counsel for the parties with regard to the legality and validity of the sale deed dated 11.10.2019 which has been executed by the respondent No. 3 in favour of respondent Nos. 4 and 5. 19. It further appears that the respondent Nos. 4 and 5 had filed an application for intervention before this Court and the intervention application was ultimately allowed vide order dated 20.12.2023. Upon perusal of the said order, this Court finds that no interim order as such was passed on 20.12.2023 with respect to the intervener respondent Nos. 4 and 5. The FIR which has been annexed by the petitioner in I.A. No. 8541 of 2024 which reveals that the grievance of the petitioner was against the respondent Nos. 4 and 5 alleging forcible eviction by them on 18.06.2024. It appears that the respondent Nos. 4 and 5 has also filed another FIR in connection with the same incident. The present status of the criminal cases filed by both the parties has not been brought on record. 20. It further appears that on 27.08.2024 when the case was taken up, the Deputy Commissioner, Giridih was directed to make an enquiry as to whether the petitioner has been forcefully evicted from the premises or not and to 6 submit a report to this Court. On 27.08.2024, an interim order was passed that till further order, status-quo, as existing on that day , shall be maintained by all the parties and further there was a direction upon the petitioner to deposit Rs. 4,00,000/- before the learned Executing Court which the learned counsel for the petitioner has submitted that the order has been complied. 21. From perusal of the order dated 27.08.2024, it appears that there was a specific order to maintain status quo as on that day and the perusal of the FIR reveal that the petitioner had filed FIR revealing that the petitioner was evicted on 18.06.2024. Apparently, the records of this case goes to show that on 27.08.2024 when the interim order to maintain status-quo for the property was passed, the petitioner was already evicted from the property. 22. It further appears that one petition for restoration of possession has been filed by the petitioner before the learned Sub-Judge on 03.05.2024 bearing Original Suit No. 111 of 2024 under Section 6 of the Special Reliefs Act, 1963. However, it is not clear as to why a petition was filed on 03.05.2024 although the petitioner has alleged that the petitioner has been evicted on 18.06.2024. The plaint of the suit has also not been brought on record and no rejoinder to the reply filed by the respondent Nos. 4 and 5 on 19.08.2024 has been filed by the petitioner. 23. Considering the totality of the facts and circumstances, this Court is of the considered view that although the direction to evict the petitioner as has been ordered vide order dated 08.03.2018 has been held to be wholly without jurisdiction and has been set-aside to the extent of such direction , still the petitioner cannot be put in possession of the property in this writ proceedings in view of the fact that neither the petitioner has been dispossessed by the process of court nor has been dispossessed by virtue of any further order passed by the Sub-Divisional Officer after 08.03.2018 nor it is alleged by the petitioner that the petitioner has been forcefully evicted by the respondent No. 3. 24. This Court also finds that with respect to eviction of the petitioner from the property on 18.06.2024, criminal case has been filed by the petitioner and 7 also by the respondent Nos. 4 and 5 against each other. In view of the aforesaid facts and circumstances, interlocutory application seeking restoration of possession which has been filed through I.A. No. 6527 of 2024 on 25.06.2024 is hereby dismissed. 25. So far as the payment of Rs. 2,00,000/- made by the petitioner is concerned, there is no question of refund of the said amount as the same is adjustable against the arrears of rent as determined and will be subject to decision by the executing court. The impugned order reveals that on the date of passing of the impugned order, there was total arrears of Rs. 6,00,000/-. So far as the subsequent payment of Rs. 4,00,000/- is concerned, it is for the Executing Court to pass appropriate order with regards to such deposit in
Decision
accordance with law. 26. Accordingly, this writ petition is disposed of. 27. 28. Pending I.A., if any, is closed. Interim order, if any, stands vacated. Mukul (Anubha Rawat Choudhary, J.) 8