Bombay High Court
Khalid Daud Hamdule vs Badamibai Kanhaiyalal Beroja & ... on 12 July, 2017
Bench: I.K. Jain
wp.1772.08.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.1772 OF 2008
Khalid Daud Hamdule,
Aged about 48 years,
Occupation : Trader and Agriculturist,
R/o Lakadganj,
Near Hamdule Compound Talav Road,
Khamgaon, Tahsil Khamgaon,
District Buldana. .... Petitioner
-- Versus -
01] Badamibai w/o Kanhaiyalal Beroja.
Since dead, through Legal Representatives.
[i] Suresh Kanhayilal Beroja,
Aged about major,
R/o Near Satimata Mandir, Talao Road,
Khamgaon, District Buldhana.
[ii] Basanti Manohar Sharma,
Aged about major,
R/o Sajanpuri, Khamgaon,
District Buldhana.
02] The Additional Collector,
Buldana. .... Respondents
Shri R.M. Bhangde, Advocate for the Petitioner.
Ms. Deepali Sapkal, Adv. h/f Shri A.S. Kilor, Adv. for Res. No.1
Shri B.M. Lonare, A.G.P. for Respondent No.2.
CORAM : KUM. INDIRA JAIN, J.
DATE : JULY 12, 2017.
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ORAL JUDGMENT :-
This petition takes an exception to the order dated
16/05/2005 passed by the Sub Divisional Officer and Rent
Controller, Khamgaon in Case No.BRA-13/Khamgaon/1999-2000.
By the said order, Rent Controller had held that relationship of
landlord and tenant does not exist between petitioner and
respondent no.1 and rejected permission to terminate tenancy of
respondent no.1 under Clause 13(3)(i)(ii)(vi)(vii) of the C.P. &
Berar Letting of Premises and Rent Control Order, 1949
(hereinafter referred to as 'the Rent Control Order' for short).
02] The order passed by the Rent Controller was
challenged in appeal before the Additional Collector, Buldhana.
Appeal was dismissed by order dated 26/10/2006 confirming the
order passed by the Rent Controller rejecting an application for
permission to terminate tenancy of respondent no.1. Being
aggrieved by the orders passed by the authorities concerned,
petitioner has preferred present writ petition.
03] Heard the learned Counsel for the parties. Learned
Counsel for petitioner submitted that petitioner purchased the
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property from Ibrahim Kothawala in the year 1983. That time,
respondent no.1 was occupying the plot. Respondent no.1 was
tenant of Ibrahim Kothawala and after purchasing the plot,
petitioner became owner and respondent no.1 was occupying
the plot as tenant of petitioner. Submission is that both the Rent
Control Authorities wrongly held that there was no relationship of
landlord and tenant between petitioner and respondent no.1. It
is submitted that R.C.S. No.123/1984 came to be filed by
petitioner against respondent no.1 and the suit was decreed.
The civil court categorically held that respondent no.1 is tenant
of petitioner.
04] Against judgment and order passed in R.C.S.
No.123/1984, respondent no.1 preferred civil revision application
before this Court. It is submitted that by judgment dated
16/10/2004, this Court has observed that respondent no.1 had
paid rent to Kothawala and in view of provisions of Section 116 of
the Indian Evidence Act, since petitioner has entered into the
shoes of Kothawala, respondent no.1 cannot challenge
relationship as of landlord and tenant. Learned Counsel
submitted that despite these clear findings, Rent Control
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Authorities travelled beyond jurisdiction and came to the
conclusion that relationship of landlord and tenant does not
exist. It is submitted that in view of jurisdictional error committed
by the authorities below, interference is warranted in writ
jurisdiction.
05] Per contra, learned Counsel for respondent no.1
submitted that petitioner is not the owner and Municipal Council
is the owner. Submission is that respondent no.1 is paying rent
to Municipal Council and not to the petitioner. According to
learned Counsel, as respondent no.1 was never the tenant of
petitioner, both the authorities below have properly held that
relationship of landlord and tenant does not exist between
petitioner and respondent no.1.
06] With the assistance of the learned Counsel for the
parties, this Court has gone through the impugned orders passed
by the Rent Controller and the Appellate Authority. It is not in
dispute that R.C.S. No.123/1984 was filed by petitioner against
respondent no.1. It is also not in dispute that the suit was
decreed and the civil court held that relationship of landlord and
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tenant between petitioner and respondent no.1 has been
established. It is a matter of record that the judgment and
decree passed by the civil court was carried in civil revision
application and this Court vide judgment and order dated
16/10/2004 observed that respondent no.1 has been inducted in
the suit premises by Kothawala, who claimed to be the original
owner. Kothawala has transferred the title to petitioner.
Respondent no.1 has admitted that Kothawala was her landlord.
As the relationship of landlord and tenant was admitted by
respondent no.1 between her and Kothawala, respondent no.1
was estopped under Section 116 of the Indian Evidence Act from
challenging the ownership of petitioner and relationship of
landlord and tenant between herself and petitioner.
07] It is significant to note that judgment and decree in
civil suit and judgment and order in civil revision application
were passed before both the authorities decided the dispute
under the Rent Control Order. Needless to state that once the
civil court has decided relationship of landlord and tenant
between petitioner and respondent no.1 and the judgment and
decree has been upheld in civil revision application, authorities
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under the Rent Control Act were not supposed to sit over the
judgments passed by the civil court and by this Court.
Apparently, authorities have exceeded their jurisdiction and
wrongly came to the conclusion that relationship of landlord and
tenant does not exist between petitioner and respondent no.1.
Since, jurisdictional error is manifest on the face of record, this
Court finds it fit to exercise jurisdiction under the extraordinary
powers. Hence, the following order :
ORDER
I. Writ Petition No.1772/2008 is allowed.
II. Rule is made absolute in terms of prayer clauses
(i) and (ii).
III. Matter is remanded to the Sub Divisional Officer
and Rent Controller, Khamgaon for decision on
the application of petitioner/landlord for grant of
permission to terminate the tenancy under
clause 13(3)(i)(ii)(vi)(vii) of the Rent Control
Order, within a period of three months.
IV. Parties to appear before the Sub Divisional
Officer, Khamgaon on 24th July, 2017.
V. No costs.
*sdw (Kum. Indira Jain, J.)
