BEFORE THE HIGH COURT OF CHHATTISGARH AT BILASPUR ICG) CIVIL REVISION N0. ^ S'~ / 2010 I^S"^^^ PETITIONERS /^ /• ^/7/^ s\l' // /^ ^ ^' /" fs^7 •s' ^^ ^' V •s5' .-•" (V RESPONDENT 1. Smt. Manju Ghosh, aged about 60 years Wd/o Late Shyama Prasad Ghosh. 2. Sandeep Ghosh, aged about 34 years, ^, /o isf^ S^ovu. fw-Sit^ ^-'s^' - 3. Sa»}B^Ghosh, aged about 31 --^^~y~-" years, S/o Late Shyam Prasad Ghosh, All are R/o Q. No. M.I.G.- C/458 Street in-front of post office Padmnabhpur, Tahsil 8s Distt. Durg (C.G.) ~ VERSUS M.S. Bisen (Madhusudan Singh Bisen), S/o Late R.S. Bisen, aged about 70 years, retired District Commandant Home Guard, R/o house of Smt. Sohani Devi Kala, M.I.G.-C/517 Padmnabhpur, Tahsil & Distt. Durg (C.G.) CIVIL REVISION UNDER SECTION 23 E C.G. ACCOMMODATION CONyROL ACT 1961 •€.. iE-SS.®,'S>;£ii''gS?!.SiS /- ' HIGH COURJT QFLCHHATTISGARH AT BILASPUR CIVIL REVISION N0. 95 OF 2010 r2 APPLICANTS RESPONDENTS Smt. Manju Ghosh Versus M.S. Bisen ORDER Postfor |L) -2-2011 Sd/- N.K. Agarwal Judge ^ ?"• a % '•3'^ t '<-£&'i" y. •v^ ^Siaaa]s ^Ss^-JSs^ <- HIGH COURT OF CHHAmSGARH AT BILASPUR CIVIL REVISION N0. 95 OF 2010 APPLICANTS RESPONDENTS Smt. Manju Ghosh Versus M.S. Bisen "^^ SB:- Hon. Shri N.K. Agarwal, J. PRESENT:- Shri R.K. Tiwari, Adv. for the applicants. . Shri Yashwant Tiwari, Adv. for the non-applicant. ORDER ( 1^-2-2011) Per N.K. Agarwal. J 1. • This revision is directed against the order dated 15-7-2010 passed by the Rent Controlling Authority, Durg (briefly 'RCA') in case No. 10-A-90/2007-08 granting decree of eviction against the applicants under Section 23-A of Accommodation Act, 1961 (briefly the Act). 2. Admittedly the non-applicant M.S. Bisen had purchased fhe suit accommodation on 20th March 2005 after his retirement on 30-4-98 from the post of Distt. Commandant Home Guards. Earlier proceeding under Section 23-A of the Act were initiated on 12-7-2005. RCA granted the decree of eviction on 30-11-2005. Thereagainst the applicants preferred revision before this Court on the ground that the application under Section 23-A of the Act liled before the RCA was premature and not maintainable in view ofproviso to Section 23-A of the Act wherein no application for eviction of the tenant was maintainable unless a period of one year had elapsed from the date of acquisition of the accommodation. The above revision was allowed by this Court vide its order dated 7-4-2008 and the eviction order passed on 30-11-2005 was set aside. 3. Eviction petition in question was filed by the non-applicant after expiry of statutory period of one yer under Section 23- A of the Act. According to non-applicant, the applifants are residing in the suit accommodation as their tenant on monthly rent of Rs. 2000/-. Earlier applicants were tenants of late M.C. Tripathi. The suit accommodation was '^ fcSw;^-<i. "asy^'i,' ^. •as^/ %.... 's^' purchased by non-applicant vide registered sale deed dated 28-3-2005 from Smt. Gangashree Tripathi i.e. wife of la^\ M.C. Tripathi and as such he became its owner /arid^ "F-'T"' applicant's landlord. 4. The accommodation was let for the residential purpoi. >.-. ne needs it bonafide for occupation as residence for himself and for his family merabers and he has no reasonably suitable accommodation for residence in the city of Durg. 5. The applicants applied under S. 23-J of the Act for leave of the Court to contest application. Leave was granted. 6. The applicants have filed their written statement. Issues were framed. Parties led their evidence. 7. Learned RCA on appreciation of evidence led and material placed on record, held the non-applicant as a landlord within the meaning of Section 23-J; relationship of landlord and tenant exists between the parties; non-applicant is in bonafide need of the suit accommodation for occupation for his residence for himself and for his family members and passed the eviction order. Hence this revision. 8. Shri R.K. Tiwari, learned counsel for the applicants, would submit, they were inducted as tenant in the suit accommodation by late M.C. Tripathi i.e. husband of Smt. Gangashree Tripathi; the agreement of sale was executed between late M.C.Tripathi and the applicants and the applicants have also paid Rs. 35,000/- as part consideration to him. Since sale deed was not executed in their favour they have preferred the suit for specific performance of contract against the legal representatives of deceased M.C. Tripathi which is pending consideration in the court of Civil Judge, Durg in the light of above fact; since there is a dispute of title between fhe parties, learned RCA has no jurisdiction to pass eviction order; Smt. Gangashree Tripathi not being the only legal representative of deceased M.C. Tripafhi, had no right to transfer the suit accommodation and as such, no absolute titie passes in non-applicant s favour; since fhere is no relationship of landlord and tenant between the parties, the order of e-viction is bad. A legal plea ~ was also raised regarding maintainability of the eviction ——^i—- ^ '%. VifaieSSS^ '^ 9. 10. 11. / petition under Section 23-A of the Act on the ground that the non-applicant acqi.ured the accommodation after his retirement and therefore, he is not landlord of specl category wifhin the meaning of Section 23-J of the Act. On the other hand, Shri Yashwant Tiwari, learned counsel appearing for the respondent supported and order and subraitted that after taking into consideration every aspect of the matter, leamed RCA has passe'd the order impugned. Therefore the revision deserves to be dismissed. I have heard learned counsel for the parties and perused the record. The question whether or'not the government servant who acquired accommodation after his retirement coraes within the category of landlord under Section 23-J of the Act to invoke jurisdiction of RCA is now well setfled by a full bench decision of M.P. High Court in the case of Kunjulal Yadu - v- Parasram Sharma reported in 2000(2) MPLJ 514. The Full bench of the M.P. High Court in the above referred case after distingiiishing the judgment of Supreme Court in case of J.D. Hingorani -v- Ashok Kharbanda and another reported in 1995 Suppl (3) SCC 185 has held in para 13 of itsjudgment as under:- "13. In view of aforesaid, it becomes bounden duty not to read the words into Act as the same is not absolutely necessary to do so. This view of ours gets support from the decision rendered in the case of Director General, Telecommunication and another -v- T.N. Peethambaran, AAIR 1987 SC 162. Thus in view of the categorical clear unequivocal and unambiguous language used under . Section 23-J of the Act, we are inclined to hold that the terms 'a retired Government servant' is only capable of pne interpretation and every retired Government servant is a landlord within the meaning of the aforesaid provision. We do not intend to read it down to add qualifiers. In our considered opinion such reading down is not necessary. The logic which has been incidentally given in the case of B. Johnson (supra) was not necessary to support the classification. Hence, we ^^^^^•&^.®:^;St^?®ce T?^ •~fi:S"^ l' fclc.: 12. 13. 14. 15. 16. are unable to accept the view that has been taken in the case ofB. Johnson (supra)." In view ofthe above, in the considered opinion ofthis Court, learned RCA has rightly exercised its jurisdiction in favour of the non-applicant who had acquired accommodation after his retirement. There is no doubt, the applicants were inducted as tenant by late M.C. Tripathi, therefore, indisputably there was relationship of landlord and tenant between late MC Tripathi and the applicants. The suit accommodation was purchased by non-applicant by registered sale deed and thus the non- applicant acquired its title. Notice was sent to applicants regarding above acquisition vide Ex. P-4. Fact reveals, applicants are also otherwise aware about transfer. Being a tenant, he has no right to challenge derivative title of non- applicant in the facts and circumstances of the case. In view of the above, learned RCA has rightly held the applicant as tenant of non-applicant. It is well settled that the agreement of sale, if any, does not confer any title. The applicants have failed even to bring the cogent material regarding filing of such suit. More over, their remedy, if any, lies before the civil court. In eviction proceedings, merely because out of several legal representatives, only one has transferred the accommodation in favour of the non-applicant, the applicants/tenant have no right to challenge fhe validity of sale deed unless objected by other legal representatives. The judgments of MP High Court in cases of Santlal Rajput (supra) and Pyarelal Sakseria v. Devishankar Parashar, reported in 1994 (2) W.N. Note No. 40, have no application in the facts and circuinstances of the present case, inasmuch as the appUcants have not raised any complicated questions of relationship of landlord and tenant nor the case involves serious question oftitle. As far as bonafide requirement is concerned, the finding has been recorded in favour of the non-applicant. The non- applicant succeeded to prove his bonafide need for residence under the provisions by adducing cogent evidence in this ^-..\ i""!i ?" regard. The applicant failed to rebut the presumption in non-applicant's favour of his need as envisaged under Section 23-D-e of the Act. 17. In view of above, this court does not find any jurisdictional illegality, perversity or absurdity in the Gnding i-ecorded by learned RCA under its revisional jurisdiction under Section 23-E of the Act, therefore, the revision failed and is dismissed. 18. However, two months time from today is granted to the applicants to vacate the premises. Sd/- N.K. AgarwaS Judge