IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5344 of 2003 1.RAGHUNATH PRASAD 2.Kamta Prasad Both sons of late Tribeni Sah, Shop No. 15/B, Block No.II, Holding No. 943, Ward No.6, Kameshwar Market West of Darbhanga Railway Junction, Station Darbhanga, P.S.Darbhanga Sadar District Darbhanga---------------------petitioners Versus 1.THE STATE OF BIHAR 2.The Commissioner, Darbhanga Division, Darbhanga 3.The Collector, Darbhanga 4.The Controller-cum-Sub Divisional Officer, Sadar, Darbhanga 5.Rajeshwar Singh 6.Kapleshwar Singh Both sons of Raj Kumar Subhewar Singh, residents Of Rambagh Palace Darbhanga, P.S.L.N.M.U. Campus Town & District Darbhanga-------------respondents with CWJC No.6496 of 2003 MD.ABDULLAH, son of late Jumrati, Shop No.20, Block No.II, Holding No. 948, Ward No.6, Kameshwar Market West of Darbhanga Railway Junction Station, Darbhanga P.S.Darbhanga Sadar, District Darbhanga---petitioner Versus 1.THE STATE OF BIHAR 2.The Commissioner, Darbhanga Division, Darbhanga 3.The Collector, Darbhanga 4.The Controller-cum-Sub Divisional Officer, Sadar, Darbhanga 5.Rajeshwar Singh 6.Kapleshwar Singh Both sons of Raj Kumar Subhewar Singh, residents Of Rambagh Palace Darbhanga, P.S.L.N.M.U. Campus Town & District Darbhanga-------------respondents with CWJC No.6502 of 2003 PREM KUMAR MISHRA, son of late Chandra Bhushan Mishra @ Chandra Bhushan Prasad Mishra, Shop No.10 Block No. II, Holding No. 937, Ward No.6, Kameshwar Market West of Darbhanga Railway Junction Station, P.S. Darbhanga Sadar Town District Darbhanga--petitioner Versus 1.THE STATE OF BIHAR 2.The Commissioner, Darbhanga Division, Darbhanga 3.The Collector, Darbhanga 4.The Controller-cum-Sub Divisional Officer, Sadar, Darbhanga 5.Rajeshwar Singh 6.Kapleshwar Singh 2 Both sons of Raj Kumar Subhewar Singh, residents Of Rambagh Palace Darbhanga, P.S.L.N.M.U. Campus Town & District Darbhanga-------------respondents with CWJC No.6548 of 2003 DOMU RAI, son of Sri Lal Bihari Rai, Shop No.6, Block No.I, Holding No.922, Ward No.6, Kameshwar Market, West of Darbhanga Railway Junction, Darbhanga, P.S.Darbhanga, Dist. Darbhanga-petitioner Versus 1.THE STATE OF BIHAR 2.The Commissioner, Darbhanga Division, Darbhanga 3.The Collector, Darbhanga 4.The Controller-cum-Sub Divisional Officer, Sadar, Darbhanga 5.Rajeshwar Singh 6.Kapleshwar Singh Both sons of Raj Kumar Subhewar Singh, residents Of Rambagh Palace Darbhanga, P.S.L.N.M.U. Campus Town & District Darbhanga-------------respondents with CWJC No.6962 of 2003 MD.NAJIM, son of late Md.Nanhku, Shop No.18, Block No.II, Holding No.946, Ward No.6, Kameshwar Market West of Darbhanga Railway Junction Station Darbhanga, P.S. Darbhanga Sadar, Dist.Darbhanga-petitioner Versus 1.THE STATE OF BIHAR 2.The Commissioner, Darbhanga Division, Darbhanga 3.The Collector, Darbhanga 4.The Controller-cum-Sub Divisional Officer, Sadar, Darbhanga 5.Rajeshwar Singh 6.Kapleshwar Singh Both sons of Raj Kumar Subhewar Singh, residents Of Rambagh Palace Darbhanga, P.S.L.N.M.U. Campus Town & District Darbhanga-----------------------Respondents with CWJC No.7652 of 2003 CHHITAN SAH, son of late Madhu Sah, Shop, Block North side Holding No. 959, Ward No.6, Kameshwar Market, West of Darbhanga Rly Junction Station Darbhanga, P.S.Darbhanga Sadar District Darbhanga----------------------petitioner Versus 1.THE STATE OF BIHAR 2.The Commissioner, Darbhanga Division, Darbhanga 3.The Collector, Darbhanga 4.The Controller-cum-Sub Divisional Officer, Sadar, Darbhanga 5.Rajeshwar Singh 6.Kapleshwar Singh 3 Both sons of Raj Kumar Subhewar Singh, residents Of Rambagh Palace Darbhanga, P.S.L.N.M.U. Campus Town & District Darbhanga-------------respondents with CWJC No.7657 of 2003 MANOJ KUMAR PODDAR, son of late Vijay Poddar, Shop No. 23, Block II, Holding No.951, Ward No.6, Kameshwar Market, West of Darbhanga Railway Junction Station Darbhanga, P.S.Darbhanga Sadar, Town & District Darbhanga---------------------------------petitioner Versus 1.THE STATE OF BIHAR 2.The Commissioner, Darbhanga Division, Darbhanga 3.The Collector, Darbhanga 4.The Controller-cum-Sub Divisional Officer, Sadar, Darbhanga 5.Rajeshwar Singh 6.Kapleshwar Singh Both sons of Raj Kumar Subhewar Singh, residents Of Rambagh Palace Darbhanga, P.S.L.N.M.U. Campus Town & District Darbhanga-------------respondents with CWJC No.10848 of 2003 MD.OBAISH NADAF @ MD.ABAISH, son of late Md.Ismile, Shop No. 24, Block No.II, Holding No. 952, Ward No.6 Kameshwar Market West of Darbhanga Rly. Junction Station, Darbhanga, P.S. Darbhanga Sadar, District Darbhanga---------------------------petitioner Versus 1.THE STATE OF BIHAR 2.The Commissioner, Darbhanga Division, Darbhanga 3.The Collector, Darbhanga 4.The Controller-cum-Sub Divisional Officer, Sadar, Darbhanga 5.Rajeshwar Singh 6.Kapleshwar Singh Both sons of Raj Kumar Subhewar Singh, residents Of Rambagh Palace Darbhanga, P.S.L.N.M.U. Campus Town & District Darbhanga-------------respondents ----------- For the petitioners :Mr.Keshav Srivastava,Sr.Advocate Mr.Arvind Kr.Verma,Advocate For Respondents 5 & 6:M/S Sachchidanand Choudhary Shardananda Jha Madan Prasad Jha,Advoates For the State :Mr.Lalit Kishore,AAG III ---- 6. 21.4.2010 Heard learned counsels for the parties. The petitioners in all the eight writ petitions seek quashing of the identical orders 4 dated 22.4.2003 passed in House Control Revision Nos. 7,9,6,5,2,3,8 & 4 of 2003-2004 by the Commissioner, Darbhanga Division as also the identical orders dated 17.12.2002 passed in House Control Appeal Nos. 6,8,5,4,1,2,7 & 3 of 2002- 2003 by the Collector, Darbhanga and the orders dated 5.12.2001 passed by the House Controller- cum-Sub Divisional Officer, Darbhanga in Rent Fixation Case Nos. 29,41,38,44,52,35,54 & 37 of 2000. The facts relevant to the decision of the present matters are that the petitioners in all the writ petitions are the tenants of the shops of Kameshwar Market inducted by the executor of the residuary estate of late Maharajadhiraj Sir Kameshwar Singh of Darbhanga. They continued to pay rent at the rate of Rs.50/- per month till the year 2000 but stopped doing so on demand of higher amount of rent. Ultimately the private respondents filed Fair Rent Fixation Case No. 29 of 2000 before the Rent Controller, Sadar, Darbhanga under Section 5 of the Bihar Buildings(Lease, Rent and Eviction) Control Act, 1982 (in short „the Act‟). By order dated 5.12.2001 of the House Controller-cum-Sub Divisional Officer, Sadar, Darbhanga the payment 5 of fair rent has been assessed at Rs.3.50 per sq.ft. as against a recommendation made by the Executive Magistrate in his report for fixing fair rent at Rs.4.30 per sq.ft. The appeal filed by the petitioners before the Collector, Darbhanga was also dismissed by order dated 17.12.2002 both on the ground of limitation as also on the merits. Before the Collector the petitioners had also raised a plea that no rent was payable to the respondents Nos. 5 & 6, the executors of the aforesaid residuary estate, for the reason that after vesting of the estate in the State of Bihar by the Bihar Land Reforms Act, 1950 the said complex being a market complex also stood vested in the State of Bihar. It was the further stand that a Title Suit No. 243 of 1967 was filed by the executors of the residuary estate against the State of Bihar which was dismissed by order dated 4.8.1979 by the learned Sub Judge against which First Appeal No. 797 of 1979 was filed and is pending in the High Court and in which an interim order dated 2.3.1979 of status quo with respect to the house in question was ordered to be maintained. By his order dated 17.12.2002 the Collector, Darbhanga, however, 6 dismissed the appeal not finding any merit in the grounds raised by the petitioners. Against the same revision applications were filed by the petitioners in which it appears that a direction was given to deposit 40 per cent of the amount as fixed by the House Controller but on the same not being deposited, by the impugned orders dated 22.4.2003 all the revision applications filed by the different petitioners were dismissed at the stage of admission itself. Several submissions have been made by learned counsels for the parties. However, the only issue that is required to be considered at present is as to whether the Commissioner as the revisional authority was justified in dismissing the revision applications as a whole on the ground of non-deposit of 40% of the arrears of rent as fixed by the House Controller. In this regard reference may be made to the provisions of Section 16 of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 which is in the following terms: “S.16. Deposit of rent determined by the Collector during the pendency of appeal or revision- The appellate authority or the Commissioner may, after giving an opportunity to the parties to be heard, make an order for deposit of rent at such rate as may be determined, month by month and 7 arrears of rent if any, and in case of non-compliance of this order, the appellate authority or the Commissioner shall order the defence against the fair rent order to be struck off. The landlord may apply for permission to withdraw the amount of rent so deposited without prejudice to any other legal remedy to which he is otherwise entitled and the court may permit him to do so.” It is evident from the aforesaid provision that the Commissioner has been conferred with the power to make an order for deposit of rent at such rate as may be determined month by month and arrears of rent and in case of non-compliance of the order the Commissioner is obliged to pass an order striking off the defence against the fair rent order. It is evident from the said provision that no power has been conferred upon the Commissioner to dismiss the revision application itself on account of non- payment of the rent and arrears of rent or such rent as may be determined. The only power that he has and he is obliged to exercise is to strike off the defence against the fair rent order. Striking off the defence against the fair rent order is not the same as dismissal of the entire revision application. The only effect of the provision is that the tenant would not be permitted to challenge the order in so far as it 8 fixes the fair rent, i.e., the quantum of fair rent that has been fixed. So far as any other defence that the tenant may have in the matter it is open to the tenant to raise the same before the Commissioner who is required to consider the same in accordance with law. In the present matters it appears that certain other defences have been raised. In the said situation it was not open to the Commissioner to dismiss the entire revision on the ground of non-deposit of 40% of the fair rent. I am supported in my aforesaid view by the decision of a Full Bench of this Court in the case of Dr.Sachidanand Sinha v. The Collector, Patna & Ors.: 1989 PLJR 1141, in which it was held that if there is non-compliance of the order to deposit fair rent, then the defence against the fair rent order has to be struck off and the revision has to be heard and disposed of under Section 26 as if the tenant had not put up any defence against the claim of the rate of rent by the landlord before the Controller. In the light of the aforesaid discussions, all the orders dated 22.4.2003 of the Commissioner, Darbhanga Division are set aside to the extent that they shall operate only as an 9 order striking off the defence of the petitioners against the fair rent order. It would however be open to the petitioners to raise any other plea apart from that against the claim of the rate of rent before the Commissioner in support of their revision applications. It is directed that the parties shall appear before the Commissioner along with a copy of this order on or before 24th May, 2010 without any further notice being issued to them and thereafter the Commissioner shall consider and dispose of the revision applications within a further period of two months. The writ applications are, accordingly, partly allowed to the aforesaid extent. (Ramesh Kumar Datta,J.) Spal/