IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.8342 of 2007 Jay Prakash Gupta Son of Late Rama shankar Gupta, resident of Mohalla Sikandarpur, P.S. Mojahidpur, District Bhagalpur ….. Petitioner Versus 1. The State Of Bihar 2. The Collector, Bhagalpur 3. Divisional Commissioner, Bhagalpur Division, Bhagalpur 4. Sub Divisional Officer cum House Controller, Bhagalpur 5. Mahendra Narayan Das Son of Late Shiv Narayan Das resident of Matri Sadan, Hospital Road, P.S. Hazipur Town P.O. Hazipur District Vaishali ……… Respondents ---------------------------------- 3 15.10.2011 Heard learned counsel for the petitioner and learned counsel appearing for the Private respondent no.5 and A.C. to A.A.G. for respondents no.1 to 4. The present writ application has been filed for quashing the order dated 21.3.2007 passed by the Commissioner, Bhagalpur Division, Bhagalpur in House Control Revision Case No. 4/2005-06 by which the revision filed by the petitioner has been dismissed. The brief facts required for disposal of the case are being noticed hereinbelow. The petitioner is tenant of the premises belonging to the respondent no.5 and upon an application filed by the petitioner before the House Controller, the fair rent was fixed .Thereafter, the matter travelled to the Collector, which was dismissed and this resulted in filing of the revision before the Commissioner, which was also dismissed by the impugned order. Learned counsel for the petitioner submits that the said initial order of the House Controller, Bhagalpur is bad in law on the ground that the report relying on which the order was 2 passed was illegal and arbitrary, both in law as well as on facts as the same was submitted after hearing of the case was concluded without giving any opportunity to the petitioner to raise any objection. He further states that initially report was called for by another Officer, but no proper enquiry was conducted. It is also submitted that belated enquiry report was being considered while passing the order by the House Controller. He further submits that the petitioner had desired to withdraw the application before House Controller and on that ground the matter ought not to have been heard on merit but still the same has been decided on merit which is not proper. He further submits that the report submitted before the House Controller is in violation of Section 8 of the Rules of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982(hereinafter referred to as the ‘Act '). He further stated that the appellate authority as well as Revisional authority have not considered the contentions raised by the petitioner in accordance with law. He further states that even though he is only occupying a very small space, still he has been saddled with the liability of having to pay rent for the entire space including the open land which is uninhabitable. He clarified that the respondent no.5 himself in the Eviction Suit filed by him has appeared and stated that only two pucca rooms with veranda, two latrines and bathroom are under the occupation of the petitioner. 3 Learned counsel for the respondent no.5 on the other hand has strongly countered the contentions of the learned counsel for the petitioner and submits that the learned House Controller was well within his rights and jurisdiction to decide the matter and since the petition filed for withdrawal of the application by the petitioner was neither affidavited nor signed, it was rightly not taken into consideration. He says that in view of the provisions of the Act the House Controller has not decided the matter either in accordance with law or even otherwise on facts. He states that the area given to the petitioner on rent included the open land and thus he cannot contend that he was never occupying the entire. He submits that since the whole property was a composite one and joint, the entire premises as well as remaining land was with the petitioner, and thus he is liable to pay for the entire property taken as a whole. During the course of argument learned counsel for the parties drew the attention of this Court to various developments in the Eviction Suit and also to the evidence adduced therein .Learned counsel for the respondent no.5 states that the said case for eviction has been decreed partially and the learned court below has taken note of this fact and reduced the liability of the rent payable by the petitioner from Rs.4000/- to the Rs.3000/-.He submits that in the revision filed by the petitioner he has only challenged the partial eviction portion and not the fixation of rent. He thus states that the petitioner cannot take a contradictory stand at this stage. 4 He has also pointed out from the copy of the enquiry report which he has produced and relying on which the House Controller has passed the order, which clearly states that notices were served to the party including the petitioner and he has also appeared during the enquiry. At this stage learned counsel for the petitioner states that even though he had appeared but he neither had any opportunity to assail nor even peruse the report which was taken into consideration by the House Controller. Considering the facts and circumstances of this case, this Court is of the opinion that the petitioner not having assailed the order passed by the House Controller on the ground that he was not given an opportunity with regard to the enquiry report on which the order has been passed, specially in view of the fact that he had opportunity before the appellate authority as well as the Revision Court, which being purely a matter of fact, such ground could not be entertained at this stage in writ proceedings, and especially after petitioner having accepted the fixation of the rent, was stopped from assailing the quantum of the rent fixed. In view of the discussions made hereinabove, this Court finds no merit in the writ application and the same stands dismissed. Sudha (Ahsanuddin Amanullah, J.)