fo /^ ^ >* l<,^> ^•-'Parivar Seva Sanstha, ^^g' f^ Registered under the Societies Act, ).'-<Wf...'•'' C/314, Defence Colony, New Delhi, >* A^ I-*^ ^-* h B^dd t* >/».- ^at^* ^•>"..- v^-' ^ Local Address; ftAarie Stopes Clinic, Baijnath Para, Raipur, Ve rs us - Smt. Padmawati Dixit, Aged about 70 yearsr, Wd./o Late Sitachar-an Dixit, Baijnath Para, Raipur, Chhattisgarh. SECTICTsi 23-E (2) of C.6. .-^.» .=,(...; •- .>- HIGH COURT OF CHHATTISGARH. BILASPUR Civjl RevisionNo.80/2005 .i.. P&rivar Sewa Sanstha Vs. " Padmavati Dixit ORDBR Post fi>r20.7.2006 Sd/- SunaKumarSinba Judge '^•^y' ^?^' %^ ^?/ .fl' V y . ••\. x i. \,^ HIGH COURT OF CHHATnSGARH. BILASPUR Civil Revision No.SOffOOS Paisrar Sewa Sansfha Vs, Padmavati Dfaat Aopeairaace: Shri Prashant Mis&ra, Sr. Advocate with Shri Sanjay K. Agrawal, counsel for fhe appUeant Shri Ashish Shrroaslava with Shri R. p. Dubqr, counscl for the non-appBcant. ORDBR (20.7.20061 SVSa, KUMAR 8IHHA. J (11 This is a tenaat's revisiou fited u/s 23-E of the M.P (C.O) Accommodation CpntrolAct 1961 picremaflter referred to as tblfi Acl). It has bcen filed against fhe order dated 16.5.20015 passed m Case No.6/90^) 2000-2001 by ttie Rent ControBingAufliority, Raipur (C.G) (hereiaafter referred to as fhe RCA). ^- fhe said ordcr, fhe aforesaid aufhorily has aBowed the applicatton fi)r evictfon ffled by fhc landlady u/s 23-A(b) df fhe said Act on fhe groimd of"bonafide Dequaemenf for the puipose ofstarting hptel business (restauBaal) ofhermajorson. P) Tlie facts of the case are that thfi landlady filed fhc afbresaa applicatipa before the RGA on 19.4.2001 mter alia pteadix^ fhat slte is ttie OTmer of tfae acm-res^ acconunodation describcd iafhe m^'aimexed to fhe appltcation •^^'yy^^is^'-^^-y ~;j. . ':-'•'•'^y^'.'^^i'^s^i^'1 ^ and fhe said accommodation is uader occupation of the non- applicant, petitioner herein, who is paying fhe reat @ Rs.7700/- per monlli. She farfher pleaded fhat fhe acconuuodation which is situatcd in fhe first fkx>r of Dixit Coinptex, Baijnafhpara, Raipur, is bonafidely required by her for fhe purpose of starting hotel busiaess (restaurau^ of her eldest son nainely Amitabh Dixit She furfher pleaded that thte accoiiunodatfon is siutabk for fhe said busiuess and there is no reasoiiabty suitable altemative accoaunodation of fhe appUcant in the township of Raipur for sterting such a business. She also pteaded that on 18. 11.2000, a notice showing her bona-fide reqzurement was sent by Registered Post to fhe petitioner/non-applicaut whereby fhe tenancy was tenninated w.e.f. 31.1.2001. Siace ater termination of the tenaacy by fhe aforesaid notice, the possession was not delivered, an order for evictioH bc passed against fhe non-applicaut. The teuaat, after obtanuiug leave to defend, filed its written statenaent dcuyiag the contentions of the appUcant. It was contended that the said premises was given to fhem on moufhly rent by the husband of fhe applicant and it was agreed between them fhat there would be increase of 15% in fhe monthty rent after evexy 3 years and the tenancy wiB continue.. Except that, no other condition was aysed between thcna. It ateo pleaded that afiier the death of original landlord since in the month of Dec. 1999 this appUcaut also agreed to give the accomnuodation on inonthty rent of Rs.7700/- for a further period of 3 ycars, she cannot claim evictfon before fh.e said period. It specifiicaUy deiued about the bonafide requirement ofthte preinises by fhe applicant It furfher pleaded fhat since the applicant wants to mcrease the rent aad she had also offered to seU tfac premises to theia, the qiicstion of bonafide requireinent of the applicaut does not arise. It pr^red for dismissal ofthe application. (3) The leamed RCA, after fi-aming of issues aud after recorduig evidence of the parties, aUowed fhe appUcatton and directed for eviction offhe aon-appUcaat u/s 23-A(b) offhe saul Act, It fa against this order of eviction, passed by fhe RCA, the tenaat tsas filed ttus revision. (4) At fhe ai^umcnts, learaed counsel for the petitioner subimtted that the landlady has not proved that she was fhe absolute oiwner offhe premises so as to retain a petition u/s 23-E of fhe Act She has also not proved fhat she requires the premises bonafidety, fbr stertmg a restaui-ant business ofher soa. He furfher submitted fhat it has also not been proved that the appBcant was having no reasonabfy suitable alteraative non- residential accomnaodation of her own to start fhe said busiaess ofher sou. He also submitted that as per material ou record, it would appear fhat the RCA has not applied its minrl to fhe statutory requiremeuts and has super&cialfy recorded a finding of boiiafide need. He also subinitted fhat fhe R.C.A. did not iioti.ee the Hiandatoiy provisions of scction 23-G of thc Act and Isss not written. a single word in this regard. On these coiints, he prayed for setting aside fhe order. (S) On fhe coutraiy, leamed counscl for fhe respondent aiyied fhat the non-applicant had admitted tfaat fhe applicant was landlady aad she was the owner of the tenaated premises. He submitted fhat fhe appUcant had proved the factum of bonafide requirement and the finding ia this regard is supported by evidence on record. His contention was tbat since the fa.ctuin of bonafide requirement and that of non-availability of the reasonabfy suitable altemative non-residential acconainodatmn have been proved by her, the order passed on praved facts by the R.C.A. cannot be interfered wifh .by flus Court ia lunited jurisdiction u/s 23-E ofthe Act. (6) I have heard learaed counsel for the parties at leiigfh and have also perused fhe records offhe R.C.A. (7) The scope offhc H^tt Court coiisidering a revMion u/s 23- E of the Act is littte more than fhe revisional jurisdiction exercisable u/s 115 ofthe Civil Procedure Code and less thaa fhe appellate powers exercisabte by the High Court providcd uader fhe law. The High Court exercisiag powers u/s 23-E is entitled to in.terfere wifh fhe findiugs recorded by the Rent Controlling Authority when the court finds fhat ftie Rent ControBmg Authority has mteread the evidence, ^aored to consider the evidence aad fhereby recorded a perverse finding or has couunitted iUegalily by misquoting law or misrepresented the law applicable to the case in question (Pfease see 2001 (3f SSLPJ^^J, 349 - Ohanncttel a/o jaannalal -BS- KalaMfU Bal and fftherstf. Hence, u/s 23-E, this Court is entifled to exainine the perversity ofthe fi&diug on fhe grounds referred to above and ifit appcars to fhe Court that fhe findiags are iadeed perverse and the order is not based on evidence on record, the same caa be set asidc in the said revisional jiuisdictiou. Therefore, fhe objection taken by the ^^7 respondeut regardiag lunited scope of examination caanot be sustaiued and tfae scope of examiaation shaU be subject to the law referred to above. (8} On merits, firstty, I take fhe ground of owaership of fhe preiaises. The requirement of lam? ia fhis regard has been dealt with by fhe Apex Court in the matter of Sheela «mdottters -os- Firm. Prahtad Kat Prem. Prakftsh, J.T. 2002 C3 S.C. S36. It has been hcld vide para 10 of the aforesaid judgnient fhat while seekiiig an ejectaient on fhe groiuid of bona fide requirement undcr clause (f) of Sectton 12(1), the landlord is required to allege aad prove not only fhat he is a landlord but ateo that he is fhe "ownei' ofthe preiaises. The defiiiitton ofTaadlord and ''tenanf as given in clauses (b) and (^ of section 2 of the Act make it clear that iinder fhe Act the concept of laadlordship is diflTereiit fiToin fhat of ownership. A persdn inay be a '"landtord" though not an "owner' of thc premises. The factor detemunative of landlordship is tfae factuin ofhis receiving or his entifleiaent to receive the rent of aay accominodation. Such receiving or righ.t to receive fhe reut may be ou the own accoiuit ofthe landlord or on account ofor for fhe benefit of any ofher person. A trustee, a guardian and a receiver are also iacluded in. fhe dcfinitiou of landlord. Such landtord woiild be entitkd to seek an eviction offhe tenant on one or niore of such grotinds faUing withiu the ainbit of section 12(1) of the Act which do not require the landlord to be an owner also so as to be entifled to successfuBy mamtain a claun for evictiDn. \ Clause (fl of section 12(1) conteinplates a claim for evictfon being maintninffl by an owner-laadlord and not a landlord merety. The fr- 6 Apex Court said that it may hasten to add, that fhe concept of owuership in a landlord-tenant Utigation govemed by rent control law has to be distinguished fi»m the one ia a litUe siiit Owuership is a relative term fhe iinport whereof depends oa fhe context in which it is used. The Apex Court further held that in rent control legislation, fhe laadlord can be said to be the owner if he is entifled in his own legal right, as distmguished from fbr and on behalf of soine-one else, to evict the teiiant aud then to retain, coatrol, hold and use the premises for hiiuself. What may suffice and hold good aa proof of ownership in a laadlord tenaut lit^ation probably may or may not be enough to successfulty sustain a claim for ownership in a title suit. The Apex Court referred to two decisions ia this paBagraph rendered iu fhe laatter oflUS. OtMtsim -»s-JlftiBohcifteI Shcnrma fl981) 3 SCC 36^wid. W.tbfmrat PunlaU -7s- .Shtirad Chcuutra 1198SS Ssum. SCC 710. AU fhis has been said by the Apex Court in a matter u/s 12(l)(^offhe Actwluch is in pari matenawith section 23-A(b) of the said Act. (9| Now it has to be examined ia case on haad as to whefher the respondent/applicant has established that she was fhe owner of ttie preiaises so as to retain a claiin u/s 23-A(b) of the -aforesaid Act. Ifwe look into the pleadings offhe parties it would appear fhat ia fhe written statement itself, not at one place but at so many places it has beea pleaded by fhe non-appUcant fhat aflter fhe deafh offhe husband offhe applicant, namely late Seeta Charan Dixit, this applicant also succeeded her estate. It has been specffically admitted vide para 2 of the written statement Chat the applicant was the landlady of fhis accominodatiou and she bas entered into agreemeut wifh fhe tenaat. Even assuming for fhe sake of arguments that she succeeded thc premises as a co-owner after death of her husbaad, it is the settled view of the Apex Court that one of fhe co-owners can alone and in his own right file a suit for ejecttaent of fhe teaant aad it is no defencc open to the tenant to question the inaintauiabiUty of the suit on the ground fhat the other co-owners were not joined as pardes to the suit. When fh.e property formiDg the subject-matter of eviction proceeduigs is owned by several owaers, every co-owner owns eveiy part and eveiy bit of the joint property along-with otliers and it cannot be sakl that he is onty a part-owaer or a fiactional owner of the property so long as the property has not been partitfoned. He can atone inaintain a suit for eviction of the tenant wifhout jouiing fhe other co-owners if such other co- owners do not object. Fleeise see f20029 6 SCC 16 ( Dhanncital -vs- Kalciuiattbal and othersf. Therefore, it is apparent tfaat if fhe applicant happens to be at-least fhe co-owner offhe property, she can maintain a claun u/s 23-A(b) ofthe Act. In fhis case, at teast fhe co-owneiship of the applicant is not disputed. Hence, it is held that fhe proceedings filed by the appllcaat before the R.C.A. was maintainable and fhe atguments advanced by fhe couaset for fhe petitioner that fhe proceedings itself was not maiatainable, cannot be sustained. -"\ (10) Now I take the point of"bonafide requireiuenf. It has been held by the Apex Court in the matter of Shto Sdrup Oupta -Vsh Dr. Slahesh Chand Giurfa. {1999) 6 S.C.C. 222 that the term bona fide or genuinely refera to a state of mind. Requireinent is iiot a mere desire. The degree or intensily contemplated by ''requires*' is much higher fhan ia inere desire. The Phrase "required bona fide" is sujgestive of legislative intent fhat a mere desire which is fhe outeome ofwhiin or fancy is not taken note of by the rent control legislation. A reqiurement in the sense of felt need which is an outeoiae of a sincere, honest desire, in contradistiactton with a mere prctence or pretext to evict a tenant, on fhe part of the landloid claiming to occupy fhe prenuses for hiiaselfor for any naember offhe fanuty would entifle him to seek ejectment of the tenaat. The Apex Court said that looked at from this angle, auy setting of the facts aad circuinstances protruding the need of fhe laudlord aad its bona fides would be capablc of successfulfy wifhstanding fhe test of objecti.ve determuiation by fhe Court. The judge of the facts should place hiinself ia the anachair of the landlord aud fhen ask the .question to himself - whether in the given facts substantiated by fhe laadlord the need to occupy fhe premises can be said to be natural, real, sio.cere, honest. If the aaswer be iii fhe positive, the need is bona fkle. The failure on the part of the laadlord to substantiate the pkaded need, or, in a given case, positive material brought on record by tenant rnaMing the court drawiag an inference that tlie realily was to Ifae contrary aad fhe landlord was merely atteiaptmg at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade fhe coiut certaiaty to deny its judicial assjstance to thc laadlord. (11) Referring to the decision rendered in thc m.atter of Rean Dass -»s-Ishwar Chander. 11988) 3 SCC 131, fhe Apex Court again held in fhe matter of BtOdeo Sinffh Bcftoa -Vs- SIonish Shdnfc JT WOS (12f SC 443 that the phrase "bona fide requirenient* or "bona fide need" or required reasonably m good faith" or ''requjred", occur in ahaost aU Rent Control Acts wifh the underliae legislative intent which has been considered aad dem.onsteated mniimerable tianes by various High Courts as also by Apex Court. In Ram. Dass case (supra) it is said fhat bona fide need should be genuiae and honest, concewed ia good faith. It was also iadicated that the landlord's desire for possession, however honest it might otherwise be, has m.evitabfy, a subjective eleinent in it, and fhat desire, to become a 'reqiureiaent' in law inust have fhe objective element of a 'need' which can be decided only by tnking all the retevant circumstances iato consideiation so fhat the protection afforded to a tenant is not rendered Ulusoiy or whitUcd down. (12) In Shiv Sarup Gupta's case (suprci^, the Apex Court described various dictionaiy meaiungs of phraseology "bonafide'. The Chambers 20th Centuiy Dictionaiy defines bona fide to niean "ia good faith: geniiiae". The word ''genuin.e" ineaus ''natural; uot spurious: real: pure: sincere". la Law Dictioneiy, Mozley and Whitley de&ue bona fide to mean "good faith, without fi-aud or deceit". The appUcant has examined two witaesses ia this case 10 namety Sm.t. Kavita Dfadt, daughter-in-law aad power of attoraey holder of the appUcant, and Stui Amitabh Dixit, soa of fhe applicaut. It comes in the evidence of daughter-in-law that the son, for whom, the eviction is being sought, has completed bis studies 8-9 yeara back and he had detenained to do busiaess fioia fhe said date. This witaess adinits in the cross-examinatfon (Pg.2) fhat fhe tetter as Ex.D-l (wrongfy writtea as Ex.P.1 in deposition sheet) was written to fhe non-applicant by the appUcant for increase m. rent She also admits ia page 1 that anofher tetter vide Ex.D3 dated 17.5.1997 was also written to the aon-appUcaat by fhe appUcant. In this letter, fhere is also inention about the iacreased rent and about a 6ssh ^reement to be entered iato between fhe partics. A fhird letter, which has been marked as Ex. D-4 and which has been admitted to be sent by fhe appUcant to the non-applicant, contains about fhe sale of land ofMaiy Stone Clinic, @ Rs. 1500/- per square feet. In the cross examination this witaess categoricalfy adinits that fhe disputed premises waa proposed to be sold @ Rs.1500/- per sq. ft. by the applicaat. The admissfon of the wituess A.W. 1 has been recorded m fhe foUowing maaner. "q? ''esv 'n^ t fe ^N>!RT toq t^ WRTO 4 aii^*) ^ WJ'W WH q?T 1500-00 WI^ 3RRPf 1?fe ^ '?? ^ teq ^ M'WI^ <NT aff 1" This goes to show tbat in fact at one point of time, the appticaut waated to seU suit property to fhe non-applicant at a \ partfcular rate. In Uais connection, further adinission coines in as^^^^^^^^^s 11 her statenient in fhe last two Unes of Para-2 at page 3 in the foUowin^ maitaer; "31-11^* ^Ren 5PR ^arriT WT^ ^f an^ t aft? ctecf awiftft ^ger qw te 4 ^toT IFT ^ ^ l" This admission further goes to show fhat ia fact the proposed rate of sale was not adinitted to the non-appUcant aad for this, fhe sale could not be made. Accordmg to thc letter EX.D- 4 this is an event ofthe year 1998. Ifwe look into the earlier part of fhe evidence of fhis witness in which it coines that fhe son of the applicaat after coiuptetiou ofhis studies, 8-10 years prior to fhe date of filing of fhe appUcation, had determined to start a restaurant busin.ess, it can be iuferrcd that fhe need of the premises for starting such business was prevailing siu.ee that period and if ia between fh.at period fhere was a tatk about fhe sale ofthe premises aad the sale could not be materialized either on accoiiat of dispute of sale pri.cc or on account of not taking iaterest by the higher aufhorities of the non-applicant, then subsequenfly filmg a petitmn for eviction. on fhe groiind of bona- fide need of the same premises on soiae pretence or pretext, it does not appear to be actual and geaiiin.c need of the applicant. In fhc opinion of fhis Court ia view of fhe admission by wituess •T(A.W. 1), it clearfy appears that whcn the sale at fhe proposed rate could not be materiaUzed then onty fhe evictfon is being sought raising a plea of bona fide need which does not appear to be a gennine need. Whfle exaiaiiung the admtesions and evidence by above angle, I am coastrained to aak a questiou to niyself as to 12 whether I ain exceeding my jurradiction providcd u/s 23-E offhe said Act ? Though I have quoted fhe law ia this regard in thc earUer part of my order, laid down in DhammSal's case (M.P. W^i Court's Judgmeut, supra), but I iiiay again quote fhe law laid down by fhe Apex Court in fhe inatter of Oeena Nath -Vs- Pooran Lal JT 2001 (S) SC 380, which says ftiat the judgmeat/order of the court/authority for eviction of a tenant which does not show that the court/authorily has appUed its mind to these statutoiy requirements cauaot be susteined and fhe Superior CoTirt wiU bc justified in upsetting such judgment/order ia appeal/second appeal/revisiou. Bona fide reqtiireinent, on a first look, appears to be a questfon offact. But ia recordiag a finding on the question fhe court has to bear in miud fhe statutoiy inandate if it is fouad that -the court has not appUed statutory provisions to the evideuce on record iu its proper perspective fhcn the finding regarding boiia fide requireiaent would cease to be a inere findmg of fact, for such erroneous fiuding iUegatly arrived at would vitiate fhe entire judgmeut In such case, the High Court cannot be faulted for uiterfering wifh fhe finding in exeroise of its second appellate jurisdictton uader sectton 100 of the Code of Civfl Procedure. In paaa 14 of this judginent, fhe law laid doiwn in Shiv Sarup Gupta's case (supra.) has also beea quoted in which it was held thaf the High Coiirt in revision is obUgpd to test the oider of Rent ConteoUer on the touch stone of "whether it is accordmg to law! For that luaited purpose it may euter iato reappraisal of evidence, that is, for the purpose of ascertainiag whether ftie conclusion <?^^s^s; 13 amved at by fhe Rent ControBer is wholfy ynreasonable or is one fhat no reasonable person actmg wifh objectivily coiild have reached on the material availabk." (13) I am. fortified ia views by fhe above laws fhat for fhe Umited purpose of testing fhe correctuess of the order aud ascertainiag as to whefher fhe Rent ControUuig Authorily has arrived at a right conclusion or thc conclusion is whoBy unreasonabte, I can enter iato reappraMal of evideuce. After such an exercise on. tlie facte ineationed above, I find fhat the RCA has not adverted to the correct provisions of law and has not arrived at a correct conclusion and it has recorded a super&cial finding ignoring the evidence on record holding that fenanted premises was required bonafidely by the landtord and fhe ueed of landloid was fa-ue, honest, real aad just. I do not agree wifh. fhe finding recorded by the said authority aad fhe arguments advanced by leamed coitasel for fhe petitioner that fhe RCA has wrongty heU fhat the premises was required boncfide by ftie ]andlord, is upheld. (14) Comiug to the last point raised by learaed counsel for fhe peti.tion.er about non-coinpliance of section 23-G of the said Act, firsfty, I may say fhat since I have already held that the need of the applicant was not bonafide and the finding in this regard is not correct, then fhere is no necessily for me to go into this question. However, I onty write that section 23-G(2) envisages that whcre an order for fhe eviction of a tenaat is made on the giound specified ia clause (b) of sectfon 23-A, fhe landlord shall not be entitled to obtain possession fhereof before the expiration 14 of a period of 2 nionths fix>m the date of fhe order and if the acconunodation is situatcd in fhe cides mentfoned in sub- clause(b) of fhls sub-sectiou which iacludes the cily of Raipiir, luiless fhe laudloid pays to thc tenaat such suin by way of compensation as inay be equal to double fhe ainount of aunual standard rent of the accoxiunodation ia cases where fhe accoiniaodation has, for a peripd of 10 complete years immediatefy preceding the date on which the landlord files an appUcation for possession thereof, been used for business piirpose or for aay ofher purpose alongwith such purpose by fhe teiiant who is being evicted. There are other clauses also. It appears that the R.C.A. has not taken notice ofthis provision and has aot niade any mention about fhis in the order. In my opinioa, there is non-compliauce of the inandatoiy provisions of section 23-G ia this case, but I am not enteriug into the consequence of non-coiapliaace fhereof or reinedy for fhe same at fhe rcvisional atscge, because, as stated above, I have already held that the requirement of the applicant was not bonafide and she was not entifled to get an order ofevicttonofthe tenant. (15) In the result, fhe petition is aBowed. The order passed by the Reut ControUing Authorily on l6.5.2CK)5 is hereby set ^ide. (16) In fhe facts and circiunstances, there shaU be no ordera as to fhc costs. SunU Kumar Sinha Judge 20.07:2(X)6 —g /Rao/