Badia vs Laxminarayan (deceased) through L.Rs..

N.K. Mody, J.

Being aggrieved by the judgment and decree dated 24-1-1997 passed by I ADJ, Alirajpur in Civil Appeal No. 3-A/95 whereby the judgment and decree dated 13-2-1995 passed by Civil Judge class-I, Alirajpur in Civil Suit No. 5-A/94 whereby the suit filed by respondent No. 1 for eviction was decreed, was maintained, the present appeal has been filed.

The appeal was admitted for final hearing on 6-5-1997 on the following substantial questions of law -

(i) Whether the Courts below committed an error or jurisdiction in passing the decree of eviction on the ground specified u/s 12(1)(p) of the M.P. Accommodation Control Act, 1961 in the face of the fact that the lease pertained to open land whereas the aforesaid provision gets attracted on conviction of an offence of using the building or allowing the building to be used for immoral or illegal purposes?

(ii) Whether the Courts below committed an error of law in passing the decree of eviction u/s 12(1)(m) of M.P. Accommodation Control Act despite the inhibition provided u/s 12(10) of the aforesaid Act?

Short facts of the case are that respondent No. 1 filed a suit for eviction on 13-6-1988 against the respondent No. 2 alleging that respondent No. 1 is owner of a house situated at H. N. 1, Pratapganj, Road No. 3, Ward No. 5 situated at Alirajpur in which respondent No. 2 is tenant @ Rs. 50/- per month. It was alleged that respondent No. 2 has constructed a temporary wooden tea-stall and is carrying on his business. It was alleged that respondent No. 2 inducted appellant as sub-tenant in the suit accommodation. It was also alleged that appellant started the business of illicit liquor for which he was prosecuted. Further case of respondent No. 1 was that on 5-8-1991, Excise Department seized the illicit liquor from the suit accommodation and in that regard case was filed which was numbered as 752/91 in which appellant was convicted vide order dated 13-8-1991. In the suit it was also alleged that respondent No. 2 by making the temporary shed on the accommodation which was measuring 10ft. (east to west) encroached the area of 25 ft. illegally. It was also alleged that respondent No. 2 is in arrears of rent. Decree was prayed u/s 12(1 )(a), (b), (c), (f), (m), (o) and (p) of the Accommodation Control Act (which shall be referred hereinafter as "the Act"). The suit was contested by the appellant on various grounds alleging that appellant is tenant in the suit accommodation. It was prayed that suit be dismissed.

After framing of issues and recording of evidence learned trial Court decreed the suit against the appellant u/s 12(1)(m) and (p) of the Act, against which an appeal was filed which was also dismissed, hence this appeal.

Learned Counsel for appellant submits that impugned judgment passed by the learned Courts below are illegal and deserve to be set aside. Learned Counsel submits that no decree could have been passed against the appellant u/s 12(1)(m) of the Act as there was no direction of the learned Courts below to remove the alleged encroachment.

So far as decree u/s 12(1 )(p) is concerned, Learned Counsel submits that since the allegation made against the appellant relates to plea of guilty, therefore on that basis no decree could have been passed. Learned Counsel for appellant submits that so far as section 12(1)(p) of the Act is concerned, even if it is assumed that appellant was convicted in a criminal case for using the accommodation for illegal purposes, then too no decree of eviction could have been passed as for making out a case u/s 12(1)(p) of the Act, the use of the building for illegal purpose is necessary. Since the nature of accommodation was an open piece of land, therefore ground u/s 12(1)(p) is not available to the respondent No. 1. Learned Counsel submits that section 12(1) of the Act deals with the grounds available to a landlord for eviction of tenant. Section 12(1) of the Act lays down that "no suit shall be filed in any Court against a tenant for his eviction from any accommodation except on one or more of the grounds mentioned in section 12. It is submitted that in each of the clause which gives a right for eviction against the tenant the word used is "accommodation" while u/s 12(1)(p) of the Act the word used is "building". It is submitted that in the facts and circumstances the appeal be allowed and impugned judgment passed by the learned Courts below be set aside.

Learned Counsel for respondent No. 1 submits that no illegality has been committed by the learned Courts below in passing the judgment and decree in favour of respondent No. 1. It is submitted that since findings are concurrent findings of fact, therefore appeal be dismissed.

In the present case from perusal of the judgment passed by the learned Courts below it is evident that both the Courts below have found that appellant has raised the construction on a piece of land which was not included which was let out to the appellant or respondent No. 2. For passing a decree either u/s 12(1)(m) or (o), further compliance is required to be made either u/s 12( 10) or 12(11) of the Act. Section 12( 1 )(m) reads as under :-

Section 12(1 )(m) - "that the tenant has, without the written permission of the landlord, made or permitted to be made, any such construction as has materially altered the accommodation to the detriment of the landlord''s interest or is likely to diminish its value substantially.

As per sub-section (10) of section 12, no order for the eviction of a tenant shall be made on the ground specified in clause (m) of sub-section (1), if the tenant within such time as may be specified in this behalf by the Court restores the accommodation to its original condition or pays to the landlord such amount by way of compensation as it may direct.

In the present case since the learned Courts below found that appellant has encroached or an accommodation which was not let out to the appellant, therefore no decree could have been passed u/s 12(1)(m) of the Act. Even if it is assumed that appellant has encroached on an accommodation which was not let out to the appellant then the decree could have been passed u/s 12(1)(o) of the Act but for that also compliance of section 12(11) is necessary which lays down that -

No order for the eviction of a tenant shall be made on the ground specified in clause (o) of sub-section (1), if the tenant within such time as may be specified in this behalf by the Court vacates the portion or portions of accommodation not let to him and pays to the landlord such amount by way of compensation as it may direct.

Since no direction was issued by the learned Courts below u/s 12(10) or 12(11) of the Act, therefore no decree could have been passed u/s 12(1)(m) of the Act.

Now this Court has to test the validity of the decree passed by learned Courts below u/s 12(1 )(p) of the Act. Section 2 of the Act deals with definition. Sub-section (a) of section 2 lays down the definition of "Accommodation" which means any building or part of a building whether residential or non-residential. The word building has not been defined separately u/s 2 of the Act. In the matter of Gajanand Saw Mill vs. Gopal, 2001 MPLJ 630, this Court has taken a view that open land is covered by the expression "accommodation". Since undisputedly the appellant was convicted under the provisions of Excise Act for using the accommodation for illegal purposes, that too, on pleading guilty, which is the best piece of evidence, therefore it cannot be said that no decree of eviction could have been passed against the appellant u/s 12(1 )(p) of the Act as an open piece of land was let out to the appellant as an accommodation which is not a building.

In view of this, the appeal filed by the appellant is allowed in part holding that learned courts below committed error in law in passing the decree of eviction u/s 12(1)(m) of the Act without complying with the provisions u/s 12(10)of the Act. However, decree passed by the learned Courts below u/s 12(1)(p) of the Act is maintained. Since the appellant has to vacate the suit accommodation in which the applicant is carrying on his business since last more than 25 years, therefore six months time is given to the appellant to vacate the suit accommodation provided the appellant submits an undertaking on affidavit within a period of 4 weeks from the date of receipt of certified copy of the Judgment before learned Court below to the effect that appellant shall vacate the suit accommodation peacefully on or before 31-12-2011 and shall strictly comply with money part of the decree. In case of non-compliance on the part of appellant within stipulated time, the respondent No. 1 shall be entitled to get the decree executed through process of law forthwith.

With the aforesaid observation, the appeal stands disposed of. No order as to costs.