Bombay High Court
Ruplal Amrutji Mohitire vs Pramod Jagannathrao Wasankar on 7 March, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.551 OF 2003
Deleted and Ruplal Amrutji Mohitire
LR's of Aged about 64 years,
Appellant is
brought on Occ: Cultivator,
record as per Resident of Naik Plot,
Court's order dt.
06.09.13. Kandli Post Paratwada,
District Amravati.
LR's of Appellant
Amended as per 1] Smt. Pramilabai wd/o Ruplalji Mohitire,
Court's order dt.
06.09.13.
Aged about 67 years.
2] Shri Govind s/o Ruplalji Mohitire,
Aged about 45 years.
3] Shri Anand s/o Ruplalji Mohitire,
Aged about 43 years.
4] Shri Kishor s/o Ruplalji Mohitire,
Aged about 41 years.
5] Shri Sanjay s/o Ruplalji Mohitire,
Aged about 38 years.
6] Shri Yogesh s/o Ruplalji Mohitire,
Aged about 35 years.
All R/o Vidyut Colony,
Near Sai Mandir Kandli,
Tahsil Achalpur, District Amravati. ....... APPELLANT
...V E R S U S...
Pramod s/o Jagannathrao Wasankar,
Aged about 41 years, Occ: Cultivation,
Resident of Kandli, Tah. Achalpur,
District Amravati. ....... RESPONDENT
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Shri S.P. Kshirsagar, Advocate for Appellant.
Shri R.D. Dhande, Advocate for Respondent.
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CORAM: R.K. DESHPANDE, J.
th MARCH, 2017.
DATE: 7
ORAL JUDGMENT
1] In Regular Civil Suit No.209 of 1995 the Trial Court
passed a decree for possession of the suit premises on the basis of
the notice issued under Section 106 of the Transfer of Property
Act. The lower Appellate Court has dismissed the appeal and
hence the second appeal against the concurrent findings of fact.
2] On 18.04.2006 this Court passed an order as under:
1/ Heard learned Advocates for the parties.
2/ Admit on the following substantial question of
law :-
"Do the provisions of the Rent Control Order
apply to the house erstwhile not governed by the Order,
the location of house being outside the Municipal limit,
by the very fact of inclusion of certain areas in the
Municipal limit and what shall be the date of such
application ?"
sa551.03.J.odt 3/6
3] The question involved was whether the area in
question was governed by the provisions of C.P. Berar Letting of
Premises and Rent Control Order, 1949 ("Rent Control Order" for
short). If it is to be held that the said Rent Control Order was
applicable, then the suit will have to be dismissed on the ground
that no permission was obtained from the Rent Controller before
issuing notice under Section 106 of the Transfer of Property Act to
determine the tenancy. If the provisions of the Rent Control Order
are not applicable then in that event the decree passed by the
Trial Court and confirmed in appeal will have to be maintained.
4] The Trial Court has considered this aspect of the
matter in paragraph Nos.5 and 6 of the judgment, which are
reproduced below:
5. This issue touches to the very tenability of the
suit. The conclusion of this is affirmative will make the
notice of termination of tenancy redundant and invalid,
whereas the negative finding to this issue will destroy
the defense of the defendant giving rise to this issue.
Considering this eventuality, I take over this issue for
discussion prior to the other issues. The defendant with
regards to the facts the defendants is coming with a
case that the disputed house is situated just near the
sa551.03.J.odt 4/6
municipal limits. The plaintiff himself admitted during
cross-examination that the house is situated a distance
of about ½ kilometers. From the octroi check post of
Achalpur Municipal Council on the Kandli Road.
The octroi check post are camped on the boundary of
the municipal council. Learned counsel for the
defendant argued that the Town Planner prepared a
map to develop the town within municipal limits and
its outskirts lying within periphery of 500 meters from
the Municipal limits. For this purpose he produced
some notification for perusal. He also produced for
perusal a map from the office of Town Planning at the
time of arguments. These documents disclose that the
Town Planner prepared a plan to develop the
peripheral area of the municipal limits and particularly
field survey no. 123 of village Kandali in which the
disputed house is situated is included in the
Development plan. Now the basis question is whether
such inclusion will automatically make applicable the
provisions of Rent Control Order to the house situated
within the peripheral limits for which the development
plant is proposed.
6. As per clause 1 sub-clause 2 of the said Order,
the order or any satisfied chapter shall extend to such
areas as the State Government may notify. None of the
party placed any notification in this regard to specify
that the provision of the Rent Control Order are made
applicable to the particular area. Both parties agree
sa551.03.J.odt 5/6
that the Rent Control Order are applicable to the areas
coming under the territorial limits of municipality.
It was incumbent on the part of defendant to put a
forth a notification showing that the provision of Rent
Control Orders are applicable to the area which are
included in the development plan of the town. As per
the provisions of Maharashtra Regional and Town
Planning Act. In absence of such notification, it is not
possible to hold that the provision of Rent Control
Orders are applicable to the areas including in
proposed development plan though such area is yet to
be included in the municipal limits.
5] Sub-clause (2) of Clause 1 of the C.P. Berar Letting of
Premises and Rent Control Order, 1949 being relevant is
reproduced below:
Chapter I
Preliminary
(2) The Order or any specified Chapter thereof shall
extend to such areas as the State Government
may, from time to time, by notification, direct.
6] Assuming that a notification was issued extending the
applicability of the Rent Control Order to the municipal limits of
Achalpur, the question is whether Survey No.123 over which the
suit property stands was included in such municipal area. It is not
sa551.03.J.odt 6/6
disputed that this property was not the part and parcel of the
Municipal limits and unless a notification is produced regarding
extension of area of municipal limit, the provisions of Rent
Control Order shall not apply.
7] The Trial Court has recorded the finding that no such
notification is produced showing the area of Survey No.123 is
included within the municipal limits of Achalpur Municipal
Council. Section 6 of the Maharashtra Municipal Councils, Nagar
Panchayats and Industrial Townships Act, 1965 deals with
alteration of the municipal limits area and for extending the
municipal area, a notification in the official gazette is required to
be issued. No such notification issued under Section 6 of the said
Act is placed on record. In view of this, the substantial question of
law framed by this Court is answered holding that the defendant
has failed to establish that the suit property was located within the
municipal limits of Municipal Council, Achalpur.
8] In the result, the second appeal is dismissed. No order
as to costs.
JUDGE
NSN
