Bombay High Court
Khalid Daud Hamdule vs Pralhad Shankar Awalkar (Mistri) ... on 12 July, 2017
Bench: I.K. Jain
wp.1768.08.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.1768 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] Pralhad Shankar Awalkar (Mistri),
Aged about 52 years, Occ. Mistri,
R/o Sati Fail, Near Municipal School No.2,
Khamgaon, District Buldana.
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.
ORAL JUDGMENT :-
This petition takes an exception to the order dated
30/04/2005 passed by the Sub Divisional Officer and Rent
Controller, Khamgaon in Case No.BRA/Khamgaon/06/2004-05.
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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
property from Ibrahim Kothawala in the year 1988. 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
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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.194/1994 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] It is submitted that petitioner has entered into the
shoes of Kothawala and so respondent no.1 cannot challenge
relationship as of landlord and tenant. Learned Counsel
submitted that Rent Control 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 landlord and respondent no.1
is not the tenant of petitioner. According to learned Counsel, as
respondent no.1 was never the tenant of petitioner, both the
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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.194/1994 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
tenant between petitioner and respondent no.1 has been
established. Respondent no.1 has admitted that Kothawala was
his landlord. As the relationship of landlord and tenant was
admitted by respondent no.1 between him and Kothawala,
respondent no.1 is estopped under Section 116 of the Indian
Evidence Act from challenging the ownership of petitioner and
relationship of landlord and tenant between himself and
petitioner. It is significant to note that judgment and decree in
civil suit was passed before both the authorities decided the
dispute under the Rent Control Order.
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07] Needless to state that once the civil court has decided
relationship of landlord and tenant between petitioner and
respondent no.1, authorities under the Rent Control Order were
not supposed to sit over the judgments passed by the Civil
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.1768/2008 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 fresh 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.)
