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Judgment
By taking exception to the judgment and decree passed by II Additional. District Judge, Sarangpur, District Rajgarh (Biaora) on 8.9.2020 in Regular Civil Appeal No. 63-A/2020, by which the District Judge has reversed the order dated 24.1.2017 passed by Rent Controlling authority u/S. 28 of M.P. Accommodation Control Act, 1961 (for short "Act of 1961"), whereby the Rent Controlling Authority directed the respondent to handover the vacant possession of the tenanted accommodation to the appellant.
No one appeared on behalf of the respondent though served, therefore, the arguments of counsel for appellant has been heard for the purpose of final disposal of the appeal.
The short facts of the case are that the appellant claiming to be the owner of House No. 131/2 Ganesh Dehri, Kharakuan, Sarangpur, District Rajgarh filed an application before the Rent Controlling Authority on the ground that she belongs to muslim community and received the property in meher. The respondent is residing in the said house as tenant and not paying the rent, which is due since January, 2013. The respondent is indulged in illegal activities in the said premises and the appellant is in need of the subject premises. Upon the said allegations, she moved an application for eviction of the respondent from the subject premises on 31.12.2015 before Sub Divisional Officer seeking eviction of the respondent as well as recovery of the arrears of rent.
The Rent Controlling Authority issued show cause notice to the respondent on 12.1.2016. Respondent appeared and filed the reply, wherein he stated that he has obtained the possession of the subject premises from one Shafiq Khan under a loan transaction and as Shafiq Khan has failed to repay the loan amount, the respondent has attained the ownership of the subject property as per the terms of the contract. The Rent Controlling Authority passed an order of eviction dated 24.1.2017 against the respondent No. 1 from the subject premises and also directed the respondent to make the payment of arrears of the rent to the appellant. The respondent preferred an appeal u/S. 31 of the Act, 1961 and the appeal was allowed by the first appellate court by the impugned judgment and decree dated 8.9.2020 by holding that Rent Controlling Authority had no jurisdiction to pass the order of eviction in favour of the respondent, who is not a landlord of special category as defined u/S. 23-J of the Act, 1961. Hence, this second appeal u/S.31 of M.P. Accommodation Control Act, 1961 has been filed by the original applicant challenging the judgment and decree passed by the first appellate court.
This appeal was admitted for final hearing on the following substantial question of law:-
"Whether the Courts below have committed error in entertaining the first appeal under Section 31 of the M.P. Accommodation Control Act, 1961 despite the fact that Civil Revision will lie against the order of eviction passed by learned RCA and appeal is barred under Section 23-E of the M.P. Accommodation Control Act ?"
Heard Shri Amit Raj, counsel for the appellant.
He submits that the appellant filed an application before the Rent Controlling Authority for eviction and recovery of arrears of rent and the Rent Controlling Authority by exercising the powers under Chapter III A of the Act, 1961 passed the order of eviction against the respondent. Therefore, according to Sec. 23-E of the Act, the first appeal preferred u/S. 31 of the Act before the District Judge was not maintainable and the only remedy available to the respondent was u/S. 23-E of the Act to prefer the revision before this Court. He submits that the District Court has committed error in accepting the appeal preferred by the respondent. Consequently, the judgment and decree passed by the first appellate court are liable to be set aside as the same is without jurisdiction.
To bolster his arguments he relied on the judgment delivered by co-ordinate bench in Nathuram Tiwari Vs. Radhakishan Ramgopal Agarwal 1987 SCC OnLine MP 399, wherein the co-ordinate bench has held that no appeal would lie against the order of eviction passed by the Rent Controlling Authority under Chapter III-A and the only remedy available to the aggrieved party is to file a revision u/S. 23-E of the Act. The relevant part of the judgment reads as under:-
"No doubt if Section 31 is not applicable then Section 32 of the Act will also not be attracted and the appeal presented before this Court will also not be tenable. The learned counsel for the appellant concedes that if Section 31 is rot applicable then Section 32 of the Act also cannot be made use of. However, he submitted that if the lower Court wrongly acted under the lower appellate jurisdiction against that order and if second appeal is provided that would be competent. He relied on (Oor Nayakhan alias Krishnaswami Naidu v. Ps. At. At. Arunachala Chettier) (1), wherein, it has been laid down ‘where a Court wrongly acts under an appealable provision of law and passes an order, a party is not deprive of the right of appeal, though on the facts the order should not have been parsed under that provision. This being the legal position, this appeal is being heard on merits and decided accordingly".
He further relied upon the judgment delivered by the division bench in Surtyomal Vs. Chandabai (2004) 3 MPLJ 438, wherein the division bench considering the provisions of Sec. 23-E of the Act, 1961 has held that even the provisions of Sec. 115 of CPC are not strictly applicable to the civil revisions filed u/S. 23-E of the Act, 1961 as the revisional jurisdiction of High Court u/S. 23-E is narrower than the appeal, but wider than power of revision given u/S. 115 of CPC and the revision will lie even against the interlocutory order. The relevant paragraphs read as under:-
"7.No appeal lies against any order passed by the Rent Controlling Authority (RCA) under chapter HI-A of the Act, which contains the provision of eviction of tenant on the ground of bona fide requirement. Thus appeal which has been provided in section 31 or section 32 has been excluded. Sub-section (2) of section 23-E of the Act provides that High Court can call for examining the record of the case pending before or disposed of by such authority so as to satisfy itself as to the legality, propriety or correctness of any order passed or as to the regularity of the proceedings of the Rent Controlling Authority. The word “any order” used in the first part is wide enough to cover beyond pale of doubt the interlocutory order passed in pending proceeding. This part deals with the jurisdiction of the High Court to hear the revision. The latter part of Sub-section 2 of section 23-E provides that High Court “as far as may be” exercise the same powers and follow the same procedure as it does for the disposal of revision under section 115 of Civil Procedure Code. It is true that High Court has to follow the same power and procedure as prescribed under section 115 of Civil Procedure Code but the latter part of section 23-E(2) cannot affect the power of this Court to call for and examine the record of pending proceeding with respect to “any order” passed or as to the regularity of the pending proceedings provided in Sub-section (2) of section 23-E of the Act. First part gives the wider power, the latter part of sub-section (2) of section 23-E tries to put a rider on the power and procedure of the Court. The power and procedure “as far as may be” has to be read in the context of the word used “save as otherwise provided by this section”. There is clearly a saving provided in section 23-E(2) of the Act as to the jurisdiction of the Court in the first part.
17.As no appeal is provided under M.P. Accommodation Control Act, the legislature has given the wider power to the High Court as compared to section 115, Civil Procedure Code. At the same time power and procedure ‘as far as may be’ save as otherwise provided in the Accommodation Control Act, has to be the same. The wide amplitude of the power under section 23-E does not mean that even against every interim order a revision can be entertained, it has to be an interlocutory order, which affects the rights of the parties."
Shri Amit Raj, learned counsel further relied on the judgment passed by division bench of this Court in Smt. Tarabai Vs. Second Addl. Judge to the Court of Dist. Judge, Gwalior AIR 1990 MP 167, wherein the division bench has held that the provisions of appeal provided u/S. 31 of the Act, 1961 are available to all other orders of the Rent Controlling Authority except the orders passed under Chapter III-A. The relevant paragraphs reads as under:-
"5.We are of the view that although in S. 31, provision is made for an appeal from “every order of the Rent Controlling Authority made under this Act”, the scope of appeal thereunder must be held to exclude from its purview the orders passed under Chap. III-A. For this, we read clear mandate in the express language of S. 23-E(1) which we quote.
“23-E. Revision by High Court— (1) Notwithstanding anything contained in S. 31, S. 32, no appeal shall lie from any order passed by Rent Controlling Authority under this Chapter”. We have no doubt that the special law enacted in S. 23-E is in derogation of the provisions contained in S. 31 and Legislature therefore, made its intention clear by using non obstante clause in S. 23-E and further using the words “any order passed by the Rent Controlling Authority under this Chapter”. We are also of the view that support for this proposition can be read in the object of the special taw enacted in Chapter III-A. When eviction is sought by the specified category of landlords having resorted to the provisions of S. 23-A of the Act, Legislature meant for the special procedure prescribed in Chapter III-A to be followed for disposing of the application of the specified category of landlord under S. 23-A within time-frame prescribed in Section 23-D so that disposals of such matters are expeditious. It is a notorious fact that civil litigations are too protracted and special care was taken by the Legislature, therefore, to ensure that in the course of the proceedings under Chapter III-A, when any order was passed by the R.C.A. It was necessary to provide the leap-frog procedure by envisaging a revision directly to the High Court. Accordingly, if it is held that the provisions of S. 31 should be construed to envisage an appeal from every order of the R.C.A. including any order passed under Chapter III-A, the very object and purpose of enactment of special law made in Chapter III-A shall be defeated.
8.For all the aforesaid reasons, we are of the view that the law laid down by this Court in the afore-cited two decisions on the scope of S. 31 of the Act needs to be reviewed. For the various reasons aforesaid and our conclusion above-referred, we have taken the view that law has not been laid down correctly in those two decisions in that regard. We are dear in our minds that when R.C.A. exercises its jurisdiction in relation to an application u/s. 23-A of the Act by passing any order with respect to trial or disposal of that application and not only when the final order is rendered in the proceeding, that decision would be only to revision by this Court under S. 23-B, indeed, all interlocutory orders by the R.C.A. with respect to that proceeding under S. 23-A would only be revisable by the Court. In respect of those orders appeallate jurisdiction u/s, 31 cannot be exercised, that is barred u/s. 23-E(1). Additional support for this view has to be read in sub-sec. (2) of S. 23-E which High Court is authorised to act even suo motu “for the purpose of satisfying itself as to the legality, propriety or correctness of any order passed by or as to the regularity of the proceeding of the R.C.A.” Emphasis added Legislature's deliberate endeavour to ensure time-bound disposal of the proceedings under S. 23-A has to be judicially supported by giving due importance to the two words “any order”, in both sub-secs. (1) and (2) of S. 23-B."
Shri Amit Raj submits that the District Court has erroneously entertained the appeal preferred by the respondent u/S. 31 of the Act, 1961 and set aside the order of eviction passed by the Rent Controlling Authority. He prays for setting aside the judgment and decree passed by the District Court and restoring the order of eviction passed by the Rent Controlling Authority .
Arguments advanced by learned counsel for appellant are considered and record of the appellate court and Rent Controlling Authority are perused.
From perusal of the record of the Rent Controlling Authority, it appears that a simple complain seeking possession from the respondent was filed by the appellant stating that the respondent has occupied her house at situated at Ganesh Dehri, Kharakuan Sarangpur, Disrtict Rajgarh and she requires the house, because she is going to perform the marriage of her daughter and the respondent is not vacating the house and no one is hearing her complaint, therefore, she is filing this complaint before the SDO. It is also stated in the complaint that the respondent is doing illegal business in the house and, therefore, he is not entitled to be continued as tenant. He has encroached and showing himself as owner of the property, whereas the appellant requires the house for the purposes of performing the marriage of her daughter. It is stated in the complaint that when the appellant asked the respondent to vacate the house, he quarrelled with her and abused her in filthy language and threatened with dire consequences. Upon these allegations and contentions the complaint was submitted and the order of eviction was sought. The SDO issued a direction to register the case under the Tenancy Act and thereafter the case was registered under the Tenancy Act and a notice was issued to the respondent, who appeared and filed his reply, wherein he denied the relationship of landlord-tenant and submitted that the appellant is not having any right, title or interest in the suit house, which he has obtained under a loan transaction with one Shafiq Khan and the application preferred by the appellant is liable to be dismissed.
The Rent Controlling Authority exercising the powers u/S. 28 of the Act passed the impugned order of eviction dated 24.1.2017 with a further direction to pay the arrears of rent to the appellant.
The said order was challenged by the respondent u/S. 31 of the Act, 1961 in an appeal before District Judge, Rajgarh. An application u/S. 5 of the Limitation Act was also filed for condonation of delay occurred in filing the appeal. The District Judge dismissed the application filed u/S. 5 of the Limitation Act by order dated 19.12.2017, which was challenged by the respondent in SA No. 146/2018 filed u/S. 32 of the Act, 1961. The Second Appeal was allowed by order dated 30.7.2019 and the appellant court was directed to decide the appeal on merits. Thereafter the District Judge decided the appeal by the impugned judgment dated 8.9.2020 and allowed on the ground that the appellant does not belong to special category landlord defined u/S. 23-J of the Act, 1961, and, therefore, the Rent Controlling Authority had no jurisdiction to pass the order of eviction under Chapter III-A of the Act, 1961. Consequently, the order passed by the Rent Controlling Authority held without jurisdiction and the order of eviction dated 24.1.2017 was set aside by the first appellate court.
This Second Appeal has been preferred u/S. 32 of the Act, 1961. The sole question involved in this case is that whether the appellant is a special category landlord defined u/S. 23-J or not. For the purpose of deciding this issue, it is relevant to reproduce the definition of landlord provided u/S. 23-J of the Act, which reads as under:-
"23J. Definition of landlord for the purposes of Chapter III-A.
- For the purpose of this Chapter 'landlord' means a landlord who is-
(i)a retired servant of any Government including a retired member of Defence Services; or
(ii)a retired servant of a company owned or controlled either by the Central or State Government; or
(iii)a widow or a divorced wife; or
(iv)physically handicapped person; or
(v)a servant of any Government including a member of defence services who, according to his service conditions, is not entitled to Government accommodation on his posting to a place where he owns a house or is entitled to such accommodation only on payment of a penal rent on his posting to such a place."
The application preferred by the appellant seeking eviction and arrears of rent has been examined in view of the definition provided u/S. 23-J of the Act and after examining the application, this court has no hesitation in holding that the appellant, who is neither a retired servant of any government or a company owned and controlled by Central or State government or a widow or divorced wife or physically handicapped person or a servant of any government and, therefore, does not belong to the special category landlord as defined u/S. 23-J of the Act.
As the appellant does not belong to the special category landlord, the application / complaint filed by the applicant cannot be treated as an application filed under Chapter III-A of the Act, 1961 and, resultantly, the Rent Controlling Authority cum SDO had no jurisdiction to pass the order of eviction, because the order of eviction can be passed by the Rent Controlling Authority only under the provisions of Chapter III-A or u/Ss. 19 or 20. This is not a case, wherein the order has been passed u/Ss. 19 or 20 and, therefore, the order of eviction passed by Rent Controlling Authority by exercising the powers under Chapter III-A was completely without jurisdiction and the learned first appellate court has not committed any error in setting aside the order passed by the Rent Controlling Authority, who cannot exercise the jurisdiction as per his own whims. When the appellant herself has not claimed that she is a special category landlord, her application / complaint could not be considered under the provisions of Rent Act by the Sub Divisional Officer and the using of the powers of Rent Controlling Authority amounts to abuse of the process of law and the order passed by the Rent Controlling Authority cannot be given seal of approval.
The judgment relied by the counsel for appellant are not helpful as no application was actually filed under Chapter III-A of the Act, 1961 by the appellant before the Rent Controlling Authority and it was an application / complaint, which was wrongly entertained under the Chapter III-A. Section 31 of the Act provides that if any order is passed by the Rent Controlling Authority, an appeal will lie before the District Judge. Section 31 reads as under:-
"31. Appeal to District Judge or Additional District Judge.
(1)An appeal shall lie from every order of the Rent Controlling Authority made under this Act to the District Judge or an Additional District Judge having territorial jurisdiction (hereinafter referred to as the Judge) and the decision of the appellate Court shall be final.
(2)An appeal under sub-Section (1) shall be preferred within thirty days from the date of the order made by the Rent Controlling Authority :
Provided that in computing the period of thirty days the period requisite for obtaining a copy of the order shall be excluded :
Provided further that the Judge may for sufficient reasons allow an appeal after the expiry of the said period."
The exception to Section 31 is Section 23-E(1), which provides that no appeal shall lie from the order passed by Rent Controlling Authority under this Chapter, meaning thereby under Chapter III-A. All other orders passed by the Rent Controlling Authority are appellable under Section 31. As the application was not filed under Chapter III-A, the order passed by the Rent Controlling Authority cannot be treated as an order passed under Chapter III-A. Even the order was not passed in the capacity of Rent Controlling Authority and the same was passed by SDO exercising the powers u/S. 28 of the M.P. Accommodation Control Act, 1961. Section 28 does not provide any power to the SDO to pass an order of eviction.
Considering the aforesaid, in view of this Court, the learned District Judge has not committed any error in entertaining the first appeal u/S. 31 of the Act 1961, as the order was not passed by the Rent Controlling Authority under Chapter III-A and, therefore, bar enumerated u/S. 23-E of the Act 1961 is not attracted to the case in hand.
The substantial question of law is answered accordingly. The appeal sans merit and Consequently dismissed. No order as to costs. Decree be drawn up. Record of the District Court and SDO be returned along with the copy of this judgment and decree.