r~ 3~) ^\^r~ IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH ./ / W.P. No. ^'<£^/2003 PETITIONER A / A^^ ^"' ..^' /v^?:'^ ..^^' ^y ^y y RESPONDENT Shyamlal Padey ^o Dehra Ram Padey 'aged about 60 years, Mining Contractor Pulgaon Naka, Ganjpara, Durg, Tah. & Distt. Durg (C.G.) VERSUS Municipal Corporation, Durg Through : The Commissioner Municipal Corporation, Durg (C.G.) ^ ^ WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA L iE.,. 1. vc^ HIGH COURT OF CHHATTISGARH, BILASPUR S.B_: HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA, J. Petitioner Respondent Writ Petition No. 2060/2003 Shyamlal Pandey Versus Municipal Corporation, Durg ORDER 1—- A. POST ON/7'' JUNE, 2011 Sd/- Manindra Mohan Shrivastava Judge HIGH COURT OF CHHATTISGARH : BILASPUR S.B. : HON»BLESHRI MANINDRA MOHAN SHRIVASTAVA,J. Petitioner Writ Petition No. 2060/2003 Shyamlal Pandey Versus Respondent Municipal Corporation, Durg Petition u/A 226/227 ofthe Constitution oflndia / Appearance: Shri V. G. Tamaskar, counsel for the petitioner. Shri Sourabh Sharma, counsel for the respondent. ORDER (Passedon_/?l 06.2011) 1. By this petition under Article 226/227 of the Constitution of India, the petitioner has prayed for following reliefs: "1. That the Hon'ble Court be pleased to quash the impugned memo Annexure P-4 by issuing a writ of certiorari or mandamus. 2. That the HonlDle Court be pleased to direct the respondent not to dispossess the petitioner from the premises in question, with an order from competent court of law, and thus issue a writ of mandamus, against it. 3. That the Hon'ble Court be pleased to issue any other writ or writs, order or orders, direction or directions deemed fit in the interest ofjustice." 2. The case of the petitioner is that he was inducted as tenant by respondent-Corporation w.e.f. 1st April, 1987 on a fixed rent of Rs.50/- per month. According to the petitioner, he made major -2- repairs in the building after taking possession, with the permission of respondent-Corporation. Further case of the petitioner is that the petitioner has been making payment of rent and has paid rent up to 4th April, 2003, in support of which, photocopies of rent receipt have been placed on record as Annexure P-1 . 3. The grievance of the petitioner is that having received rent up to March, 2004, respondent-Corporation served upon the petitioner a notice dated 8.7.2003 (Annexure P-4) to vacate the premises within 7 days. 4. Learned counsel for the petitioner assailed the legality and validity of notice dated 8.7.2003 and the action of eviction by submitting that as the petitioner is occupying the premises for residential purpose, the provisions of M.P./C.G. Accommodation Control Act, 1961 (hereinafter referred to as "the Act of 1961") are applicable and, therefore, the only course open for the respondent- Corporation is to take recourse to the eviction proceedings under the Act of 1961 and obtain a decree of eviction from the Court of competent jurisdiction. He further submits that even if the tenancy has been brought to an end vide notice dated 8.7.2003, respondent-Corporation has no authority under the law to evict the petitioner by a simple notice, as has been done in the present case. He further submits that under any circumstances, a tenant could not be evicted unless the Corporation obtains a decree of eviction. 5. On the other hand, learned counsel for the respondent- Corporation, referring to the specific averment made in their -3- '} ?r. return, argues that the accommodation was let out to the petitioner for non-residential purposes, on monthly tenancy. According to him, the accommodation was let out exclusively for non-residential purpose and, therefore, by virtue of provision contained in Section 3 of the Act of 1961, as applicable in the State of Chhattisgarh, the provision of the said Act is not applicable in respect of property held by a local authority and used for non-residential purpose. He, therefore, vehemently submits that the Act of 1961 itself, being not applicable, there is no need for the Corporation to file a suit for eviction on any of the ground enumerated in Section 12 of the Act of1961. 6. I have considered the rival submissions made by learned counsel for the parties and perused the records. . 7. While the petitioner has averred in his petition that the premises were let out to the petitioner and used exclusively for residential purpose, the respondent-Corporation in its affidavit has categorically denied and has specifically stated that the accommodation was let out exclusively for non-residential purpose. None of the parties have placed on record any written agreement of tenancy. From the documents, which have been placed on record both by the petitioner as well as by the respondent-Corporation, it is not clear whether the premises were let out to the petitioner for residential purpose or for non-residential purpose. Even in the impugned notice dated 8.7.2003 (Annexure P-4), it has not been \, . ,•"- ^, y -4- specifically stated as to whether the rented premises were let out and held for residential or non-residential purpose. 8. One Khemlal Sinha has also sought to intervene in this writ petition in opposition of the writ petition by submitting that the disputed accommodation has been situated and constructed on the road and the road has been blocked. It has been submitted that an application was made to the Corporation to demolish the building to facilitate construction of road for local residents. 9. Whether or not the accommodation was let out for residential purpose and is being used for residential purpose, has itself become seriously disputed question of fact in view of the pleadings and documents placed on record by both the parties. There is no written document of tenancy. The documents, which have been placed on record by both the parties, also do not clearly establish the nature of tenancy. While the petitioner, on affidavit, avers that he was inducted as tenant and the premises are used for residential purpose, respondent-Corporation has maintained throughout in their pleadings that the accommodation was let out for non-residential purpose and therefore the provision of the Act of 1961 are not applicable. In these facts and circumstances, a seriously disputed question of fact arises for consideration as to whether premises were let out for residential or non-residential purpose. It is only upon determination of this disputed question of fact that the applicability of the provision of the Act of 1961 could be decided. This will require recording of oral evidence and -5- Praveen determination of fact as to whether the premises were let for residential or non-residential purpose. Therefore, this may not be gone into by this Court under Article 226/227 of the Constitution of India. The appropriate remedy for the petitioner would be to approach the Civil Court for necessary declaration and injunction on the pleading that the accommodation was let for residential purpose. The petitioner has stated in his writ petition that remedy of filing suit is not efficacious hence writ petition has been filed. 10. In view of the discussions as above, this CQurt is not inclined to go into disputed question of facts relating to nature of tenancy. It would be open for the petitioner to approach the Civil Court of competent jurisdiction and seek appropriate relief of declaration, injunction etc. against notice of eviction dated 8.7.2003 (Annexure P-4). ^-1. Considering that an interim order was passed in favour of the r petitioner on 23.7.2003, protecting him against eviction and that this Court has granted liberty to the petitioner to approach the Civil Court for appropriate relief, it is expedient in the interest of justice to order that no eviction proceedings shall be drawn against the petitioner for a period of 3 months from the date of passing of this order or until such further order/injunction passed by the Civil Court, whichever is earlier. 12. The petition is accordingly finally disposed of. ________—- Sd/- ManindraMohanShrivastava