1. Kanhaiya Lal Verma 2. Arun Lal Verma 3. Chandan Lal Verma All sons v. Goverdhan Prasad, son of late Parmeshwar Lal, resident of Makatpur Kutchery Chow, Tower Chowk
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Civil Revision No. 18 of 2020 ---------- 1. Kanhaiya Lal Verma 2. Arun Lal Verma 3. Chandan Lal Verma All sons of Ramlal Verma, resident of Bhandaridih, Buxidih Road, P.S. Giridih (T), P.O. & District Giridih …. 2nd Parties/ Petitioners Versus Goverdhan Prasad, son of late Parmeshwar Lal, resident of Makatpur Kutchery Chow, Tower Chowk, P.S Giridih (T), P.O. & District Giridih …… 1st Party/ Opp. Party CORAM: HON'BLE DR. JUSTICE S.N.PATHAK ---------- For the Petitioner s For the Opp. Party ----------- : : ----------
Legal Reasoning
“9. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law.” 12. In view of the aforesaid observations, legal propositions and judicial pronouncements, the Civil Revision is not maintainable and the same is hereby dismissed. (Dr. S.N. Pathak, J.) kunal/-
Arguments
Mr. Yogesh Modi, Advocate Mr. Manish Kumar, Advocate 13/ 06.10.2023 Heard the parties. 2. In the instant civil revision, petitioners have prayed for quashing the order dated 25.07.2020 passed by the Sub-Divisional Officer, Giridih in Eviction Case No. 01 of 2017 whereby the petitioners were directed to evict the shop premises as the same was required by the opposite party for his personal necessity. 3. The facts of the case, in short, is that on 14.02.2017, the opposite party submitted an application before the Deputy Commissioner, Giridih stating therein that he had given his shop to the petitioners on rent for 5 years through an agreement and after expiry of the said period, he requested the petitioners to vacate the said shop since he is in need of the same for his personal use but they refused to do so and demanded Rs.5.00 lakhs as extortion. The application of the petitioners was forwarded to the Sub- Divisional Officer, Giridih for necessary action. Thereafter, on 21.02.2017, the Sub-Divisional Officer, Giridih issued notices to the petitioners directing them to submit their replies on the application of the opposite 2 party and also directed to vacate the shop in question. It is the case of the petitioners that although the application of the opposite party was forwarded to the Sub-Divisional Officer, Giridih, seeking remedy on administrative side but the same was converted into eviction case. The said application was neither supported by any affidavit nor the requisite court fee was paid. As also, no period was specified in the application as to till what period agreement was in force, even though, it was converted into eviction case, which is not permissible under the law. 4. However, the petitioners submitted their reply (on 07.03.2017) stating therein that no lease, exceeding one year, could be made under any unregistered document under Section 107 of the Transfer of Property Act, hence, the plea of expiry of fixed period of the lease is not entertainable under the law. It was further pleaded by the petitioners that the opposite party had received Rs.73,000/- on various dates for construction of premises in question and Rs.4.00 lakhs was received by him as security deposit. It was further pleaded by the petitioners that earlier on 12.05.2015, a notice was also served to them to vacate the premises in question and the petitioners submitted their reply to the same. After the said development, the opposite party remained silent and now, he has filed petition with false and wrong allegations. It was further stated that no case under Section 19 of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011 (for short “Act, 2011”) has been made out by the opposite party. It was further submitted that the petitioners gave Rs.73,000/- to the opposite party on his assurance that either the same shall be adjusted against the rent or he will refund it to the petitioners. However, the opposite party has also not refunded the security deposit of Rs.4.00 lakhs received by him from the petitioners. The petitioners also denied the allegation of extortion. 5. On 28.04.2017, the opposite party filed his objection to the written statement filed by the petitioners on 07.03.2017. The opposite party further filed petition under Section 25 (i) (c) of the Act, 2011 stating therein that under the said Act, the Controller is empowered to get the possession evicted from the tenant without seeking any evidence. Thereafter, the Sub- 3 Divisional Officer, Giridih, vide impugned order dated 25.07.2020, directed the petitioners to evict the shop as the same is required by the opposite party for his personal use and further directed the parties to adhere to the terms of agreement. It has been further pleaded by the petitioners that on 25.07.2020, when the impugned order was passed, the matter was heard on the point of maintainability of the case as well as on the point of proceeding of the case under Section 23(2)(h) of the Act, 2011. But, later on, it came to the knowledge of the counsel for the petitioners that even the final order has been passed. Being aggrieved by the said impugned order, the petitioners have preferred the present Civil Revision. 6. Mr. Yogesh Modi, learned counsel appearing for the petitioners submits that impugned order is not tenable either in law or in the facts, thus the same is liable to be set aside. Learned counsel further argues that the Sub-Divisional Officer, Giridih has absolutely misinterpreted the provisions contained in Sections 25(i)(c) and 23(2)(h) of the Act, 2011 and passed the impugned order. Learned counsel further argues that the application was forwarded to the Sub-Divisional Officer, Giridih for remedy on administrative side but it was converted into eviction case though the said application was neither supported by any affidavit nor the requisite court fee was remitted. As also, no period was mentioned therein specifying as to for what period agreement was in force. Learned counsel further argues that the contents of the notice has never been averred in the application such as non-payment of rent. Further, direction given to the petitioners to vacate the premises without any specification suggests that the Sub-Divisional Officer, Giridih was prejudiced. The impugned order was passed without adhering to the provisions enshrined under Section 23(2)(h) of the Act, 2011. Learned counsel further argues that before passing the impugned order, no opportunity was afforded to the petitioners to lead evidence in the case or even to submit documents in support of their contentions. Learned counsel further argues that although the Sub-Divisional Officer, Giridih, vide the impugned order, directed the parties to abide by the terms of the agreement 4 but no direction was given to the opposite party to return the amount to the petitioners as mentioned in the agreement. Learned counsel further argues that the point of maintainability was raised by the petitioners but the Sub- Divisional Officer, Giridih did not record any finding on the said point. Learned counsel accordingly submits that for the aforesaid facts and reasons, the impugned order suffers from infirmity and the same is fit to be set aside. 7. On the other hand, Mr. Manish Kumar, learned counsel appearing for the opposite party vehemently opposes the contention of learned counsel for the petitioners and submits that the impugned order has been issued in accordance with law as stipulated under the provisions of Act, 2011. Learned counsel further argues that the act provides the procedure to be adopted in case of eviction and procedure laid down in Section 33 of the Act was duly followed by the Sub-Divisional Officer as notice was issued to the petitioners and reasonable opportunity of submitting their reply was given to them which they duly availed and after hearing the parties, the Sub-Divisional Officer, Giridih passed the impugned order under Section 25 of the Act, 2011 directing the petitioners to vacate the premises in question, as the same was urgently required by the opposite party for his personal use. Learned counsel further argues that just to delay the matter, the petitioners have filed the present Civil Revision and taking undue advantage of law in delaying the compliance of order passed by the Sub- Divisional Officer, Giridih. Learned counsel further argues that as per the agreement of tenancy, it was clearly mentioned that if the tenant fails to deposit the rent for more than two months, the landlord has every right to ask the tenant to vacate the premises in question and since the petitioners defaulted in payment for rent for more than two years and since the opposite party was 65 years of age at the time of hearing, there was no need for the learned Sub-Divisional Officer to record the statement of witnesses, more so in view of the fact that no such leave was sought for by the petitioners to adduce evidence by producing the witnesses. Learned counsel further argues that if the outstanding amount of rent is calculated, then it 5 will come to a sum more than the amount deposited by the petitioners as security deposit and hence, there is no question of refunding the security deposit to the petitioners. Learned counsel lastly submits that for the aforesaid facts and reasons, there is no merit in the instant Civil Revision which deserves to be dismissed in limine. 8. Having heard the rival submissions of the parties and upon perusal of the documents brought on record, it appears that Civil Revision has no merits and is fit to be rejected. 9. For better appreciation of the case, now it would be apposite to mention the relevant provisions of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011, which is quoted herein below: “25. Right to recover immediate possession of building to accrue to a widow or a handicapped person or a person aged sixty five years and above (1) Where the landlord is (a) a widow and the building let out by her, or by her husband; (b) a handicapped person and the building let out by him; . (c) a person who is of the age of sixty five years or more and the building let out by him, is required for use by her or him or for her or his family or for any one ordinarily living with her or him for use, she or he may apply to the Controller for recovery of immediate possession of such building and the process of eviction as delineated in Sec 23 of this act shall be applicable. (2) Where the landlord referred to in sub-section (1) has let out more than one building, it shall be open to her or him to make an application under that sub-section in respect of any one building chosen by her or him.” 10. The arguments advanced by learned counsel for petitioners that petition submitted before the learned Sub-Divisional Officer for eviction of suit premises was not maintainable, is also not well founded as the same was very much maintainable and orders have been passed in accordance with law, which is fully justified. Full opportunity was given to the parties and thereafter, order was passed taking into consideration Section 25(1) & (2) of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2011. 11. The Hon’ble Apex Court in the case of N. Mani v. Sangeetha Theatre, reported in [(2004) 12 SCC 278] has held as under: 6