Jhunjhunwala Trading Company, Indore vs Shekhar Kumar and others

N.K. Mody, J.—Being aggrieved by the order dated 04/11/2004 passed by X ADJ, Indore in MA No. 2/2004 whereby application filed by the appellant u/s 17 (2) of the M.P. Accommodation Control Act, 1961 (which shall be referred hereinafter as "Act") was allowed in part, present appeal has been filed. Short facts of the case are that in the year 1979 respondent No. 4 filed a suit for eviction against the appellant u/s 12(1) (a), (b), (f) and (m) of the Act alleging that the appellant is tenant in the suit accommodation which requires by the respondent No. 4 bona fidely for carrying on business. The suit was decreed vide judgment and decree dated 22/07/1985 against which appellant filed first appeal which was numbered as 77/1985. Respondent No. 4 also filed appeal as the decree was refused u/s 12(1) (b) and (m) of the Act. Vide judgment dated 19/01/1989 appeal filed by the appellant was dismissed and the appeal filed by the respondent No. 4 was allowed and decree also passed u/s 12 (1) (b) and (m) of the Act. Being aggrieved by the judgment of the learned appellate Court two appeals were filed which were allowed and decree passed by learned Courts below were set-aside against which SLP was filed by the respondent No. 4 before Hon''ble Apex Court vide judgment dated 26/07/1995 and Hon''ble Apex Court allowed the SLP filed by the respondent No. 4 and directed the appellant to vacant the suit accommodation on or before 31/12/1995. In compliance of the decree passed by Hon''ble Apex Court possession was handed-over by the appellant on 23/12/1995. Thereafter an application was filed by appellant on 22/06/1996 u/s 17 (2) of the Act alleging that after obtaining the decree on the ground of bona fide requirement respondent No. 4 has sold the property to respondents No. 1 to 3 vide registered sale-deed dated 24/04/1996. It was alleged that since decree was obtained on the ground of bona fide requirement, therefore, appellant be put into the possession of suit accommodation. The application was contested by the respondents on various grounds including on the ground that because of compelling circumstance the respondent No. 4 was left with no option except to sale the suit accommodation. After holding summary inquiry learned trial Court allowed the application filed by the appellant vide order dated 24/11/2003 directing the respondents to hand-over the possession against which appeal was filed u/s 31 of the Act on 04/11/2004 which was allowed and respondent No. 3 was directed to pay the rent of one year as compensation against which the present appeal has been filed.

Learned counsel for the appellant argued at length and submits that the impugned order passed by learned appellate Court is illegal, incorrect and deserves to be set-aside. It is submitted that since after obtaining the decree on the ground for genuine requirement the suit property was sold by respondent No. 4 and the accommodation was not used for the purpose for which it was got vacated, therefore, learned appellate Court committed error in allowing the appeal filed by the respondent No. 1 to 3. Learned counsel for the appellant submits that learned appellate Court has awarded compensation as one year rent which was being paid by the appellant. It is submitted that since appellant was tenant @ Rs. 250/- per month, therefore, inspite of allowing the application filed by the appellant the only compensation which has been awarded is of Rs. 3,000/- which is not at all adequate compensation. It is submitted that in the facts and circumstances of the case appeal be allowed and judgment passed by learned appellate Court be set-aside and order passed by learned RCA be restored.

Mr. G.M. Chaphekar, learned senior advocate appearing on behalf of respondents No. 1 to 3 submit that respondents No. 1 to 3 are the bona fide purchaser who has purchased the suit accommodation vide registered sale-deed dated 22/06/1996 after making the payment of full consideration. It is submitted that respondents No. 1 to 3 were having no knowledge that the suit accommodation got vacated by the respondent No. 4 on the ground of bona fide requirement. It is submitted that learned appellate Court has rightly held that it is respondents No. 1 to 3 who are liable to pay the compensation. It is submitted that appeal filed by the appellant be dismissed.

Mr. A.K. Sethi, learned senior advocate for the respondent No. 4 submits that it is true that respondent No. 4 got the vacant possession of the suit accommodation on 23/12/1995 and the suit accommodation was sold by the respondent No. 4 on 22/06/1996. It is submitted that since the respondent No. 4 was owner of the suit accommodation and there were compelling circumstance, therefore, respondent No. 4 was left with no option except to sale the suit accommodation. It is submitted that in the facts and circumstances of the case no illegality has been committed by learned appellate Court in passing the impugned judgment. It is submitted that appeal has no merits and the same be dismissed.

Section 17 of the Act deals with recovery of possession for occupation and re-entry. Sub-section (2) of Section 17 of the Act reads as under:-

Recovery of possession for occupation and reentry.

(1)....

(2) Where the landlord recovers possession of any accommodation as aforesaid and the accommodation is not occupied by the landlord if he is the owner thereof, or by the person for whose benefit the accommodation is held, within two months of obtaining such possession, or the accommodation having been so occupied is, at any time within two years from the date of obtaining possession, re-let to any person other than the evicted tenant without obtaining the permission of the RCA under sub-section (1) or the possession of such accommodation is transferred to another person for reasons which do not appear to the RCA to be bona fide, the RCA may, on an application made to it in this behalf by such evicted tenant within such time as may be prescribed, direct the landlord to put the tenant in possession of the accommodation or to pay him such compensation as the RCA thinks fit.

Thus, if the landlord recovers the possession of any accommodation on the ground of bona fide requirement the landlord is bound to occupy the accommodation within two months of obtaining the possession. Sub-section (2) of Section 17 of the Act puts further rider on landlord not to re-let the accommodation without permission of RCA or to transfer the accommodation to another person and if the landlord transfers and fails to satisfy the bona fide reason for transfer of the property, the RCA can direct the landlord to put the tenant into the possession of suit accommodation or to pay him such compensation as it thinks fit.

Since property was transferred by the respondent No. 4 to respondents No. 1 to 3 without disclosing the fact that the decree was passed u/s 12 (1) (f) of the Act and respondent No. 4 was having not authority to transfer the property within two years, in the circumstance respondent No. 4 has committed breach of Section 17 (2) of the Act which has rightly been held by both the Courts below. Since inspite of making efforts by the counsel for appellant presence of appellant could not be secured, therefore, it appears that it is not a fit case wherein respondents No. 1 to 3 can be directed to put the appellant in possession of the accommodation. However, at the same time compensation which has been awarded by the learned appellate Court is also inadequate. In the facts and circumstances of the case appeal filed by the appellant is allowed in part. While maintaining the judgment passed by learned appellate Court to award compensation, it is directed that instead of one year rent the respondents shall deposit a sum of Rs. 75,000/- with the learned RCA within a period of two months which shall be payable to the appellant. The amount of compensation shall be deposited by the respondents No. 1 to 3 and respondent No. 4 equally. In case of default on the part of respondents No. 1 to 3, then, the appellant shall be entitled to exercise the right of re-entry in the suit accommodation. In case of default on the part respondent No. 4 appellant shall be entitled for interest @ 12% P.A. on the defaulted amount from the respondent No. 4. With the aforesaid observations, appeal stands disposed of C.C. as per rules.