Chattisgarh High Court
Hindustan Petroleum Cor vs Glenn Charles Sturat And Others on 12 May, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No. 216 of 2007
Judgment Reserved on 09/03/2022
Judgment Delivered on 12/05/2022
Hindustan Petroleum Corporation Limited through its Sr. Regional
Manager, Regional Officer, 2nd Floor, Madina Manzil,Medical College
Road, Raipur (CG)
---------Appellant/Plaintiff
VERSUS
1. Glenn Charles Sturart S/o. Late Shri Fredric Stuart, aged about 70
years,
2. Miss. Cheryl Sturart, D/o. Late Shri Fredric Stuart, aged about 69
years,
Both residents of England but exact address is not known. They are,
therefore under care of their purported Attorney Mr. Albert Demerum
at flat no. 401 and 402, Krishna Apartments, Vidya Nagar, Bilaspur
(CG)
3. Mrs. Desiree Sturart, Wd/o. Late Mr. Maurice Stuart, aged about 80
years, R/o. Mallina Cytacrramar 6031, Prph, Western Austrialia,
4. Mrs. Margaret Keshaney (Demerum) (Wd/o. Late Hilda Cranston) St.
Joseph's Village, 21 Alice Street, Auburn 244, NSW Austrialia,
5. Clement Horace Demerum, aged about 70 years, Mrs Hilda
Cranston, R/o. 11 Archil es place working G U 21 4 SI surrey,
England.
6. Mrs. Elizabeth D. Cruze, (Cranston) D/o. Late Mrs. Hilda Cranston,
aged about 78 years, 20 Hambro Road Streatham London SW 166
JE U.K.
----------Respondents/Defendant
2
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For the Appellant : Mr. Sourabh Sharma, Advocate
For the Caveator : Mr. Manoj Paranjpe, Advocate
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Hon'ble Shri Justice Narendra Kumar Vyas
CAV Judgment
1. This instant Second Appeal has been filed by the appellant/ plaintiff
under Section 32 of the Chhattisgarh Accommodation Control Act,
1961 challenging the order dated 29.03.2007 passed by the First
Additional District Judge, Bilaspur in Miscellaneous Civil Appeal No.
50/2006, by which the appellate Court has dismissed the appeal
against the order dated 18.10.2006 passed by the Rent Controlling
Authority, Bilaspur (CG) in Rent Case No. 2/A-90(3)/2005-06
whereby the application filed by the appellant for permission to
deposit the rent as per provisions of Section 25 of Act, 1961 has
been rejected.
2. Brief facts necessary for disposal of this appeal are that the appellant
has filed an application under Section 25 of the Act, 1961 (hereinafter
referred to the Act, 1961) for depositing of rent, mainly contending
that the appellant has taken a plot on rent situated at Link Road
adjacent to the Tarbahar Police Station, Bilaspur bearing khasra no.
677/1 area 15,000/- sq. ft. whereupon the appellant is running a
petrol pump namely Ganesh Automobiles. The appellant sought
permission to deposit rent for the suit premises for the period from
01.10.1989 to 31.12.2005 mentioning the reason that as there is a
bonafide doubt as to whom the rent is payable therefore, the rent for
the said period could not be deposited by him. It is contended that
appellant wanted to deposit rent for this period to the tune of Rs.
1,85,250/-. It is contended that previously, the landlords were Mr.
Horace Ross, Mrs. Maude Stuart and Mrs. Hilda Cranston, they all
were foreigners and expired. The defendants are claiming to be the
landlords and calming rent, therefore, appellant has asked them to
furnish valid sucession certificate or document to establish their
entitlement to receive the rent but they have not given any prove with
regard to entitlement to receive the rent.
3. That all the claimants have left India permanently and are residing in
Abroad. It is contended that till 30.09.1989 the rent was regularly
claimed and accepted by the defendants through Mr. Fredrick Stuart.
The cheques sent to Mr. Fredrick Stuart for the months of October
1989, December 1989 and January 1990 were returned unserved as
Mr. Fredrick Stuart has expired thereafter Mr. G.C. Stuart had
approached the appellant for payment of rent. The defendants were
advised by the appellant to produce the relevant documents for
claiming the rent to substantiate his claim as legatee or attorney for
resumption of payment of rent. But he has not responded to him.
There was no authority or agent to appear or to accept the rent,
therefore, the rent was accumulated for the period from 1.10.1989, till
31.12. 2005 total Rs. 1, 85, 250/-.
4. It is further contended that Mr. Albert Edward Damerum appeared in
person claimed rent along with application and submitted xerox
copies of two separate instruments of power of attorney. One power
of attorney was executed on 06.09.2004 on Indian non judicial stamp
of Rs. 100/- in Australia by Mrs. Margarent Keshancy jointly in favour
of Mr. Clement Horace Dameron of England and other instrument of
power of attorney is executed on 5/6.09.2004 by the attorney on
Indian non judicial stamp of Rs. 100 in favour of Mr. Albert Edward
Damerum and there was doubt over the authenticity of the power of
attorney. As both the instruments have countersigned by the Indian
High Commission and again Mr. A.E. Damerum approached the
appellant with a new power of attorney executed by Mrs. Margaret
Keshaney in his favour on 27.03.2005 on Indian stamp papers of Rs.
100/ in Australia which has created doubt over the authenticity of the
power of attorney, therefore, rent was not handed over to the
defendants.
5. From the records of Rent Controlling Authority, it is quite vivde that
the appellant has also enclosed all the power of attorney along with
the application, therefore, rent control authority has sent the
document and obtained opinion from the Government Advocate,
thereafter fixed the case on 11.02.2006 for admission. It has been
further reflected from the record that Controlling Authorty vide order
sheet dated 15.06.2006 has recorded a finding that respondents are
not residing in India, in such a situation, the agreement between the
landlord and the tenant has been executed whether so called
landlord was the owner of the property or the agreement has been
executed between them was legal agreement or not. This question
cannot be decided merely on the basis of agreement, it requires to be
decided on merit after following due process of the law and thereafter
the matter was fixed for reply on 07.07.2006. On the application filed
by the appellant. The Rent Controlling Authority vide its order dated
18.10.2006 has rejected the said application for depositing the rent
from October 1989 till 31.12.2005.
6. Against that order, the appellant has preferred the First Appeal under
Section 31 of the Act 1961 before Learned Additional District Judge,
Bilaspur. The said appeal was registered as miscellaneous Civil
Appeal No. 50/2006. Learned First Additional District Judge, Bilaspur
vide its order dated 29.03.2007 has dismissed the appeal preferred
by the appellant by recording the finding that the rent from 1.10.89 to
31.12.2005 @ 950/- per month was deposited till 31/01/2006 as per
provisions of section 24, 25 and 26 of the Act. The rent has not been
deposited within stipulated period as provided in the agreement. It
has also been recorded a finding whether the defendants are the
owners of the disputed property, or not, this issue cannot be decided
by the First Appellate Court in the miscellaneous Civil Appeal and
appellant has submitted the application for depositing the rent at
belated stage, therefore, order passed by the Rent Controlling
Authority is just and proper and does not call for any interference.
Being aggrieved by the order passed by the First Additional District
Judge, Bilaspur, the appellant has preferred the second appeal under
Section 32 of the Act, 1961.
7. Learned counsel for the appellant would submit that the Rent
Controlling Authority has committed illegality in dismissing the
application as time barred under Section 25 of the Act, 1961. He
would submit that there was no dispute with regard to ownership of
the rented property and rent was regularly paid to the defendants till
September 1989, thereafter the dispute of the ownership of the
property has been arisen which caused delay in depositing the rent,
therefore, Rent Controlling Authority should have condoned the delay
in depositing the rent. He would further submit that the First Appellate
Court has also committed illegality in dismissing the appeal filed by
the appellant and prayed for quashing of the orders.
8. On the other hand, learned counsel for the responded would submit
that the order passed by the both the Courts below is just and proper
and does not call for any interference by this Court.
9. I have heard learned counsel for the parties and perused the record
of the Court below with utmost satisfaction.
10. Before adverting to the submission made by the appellant and the
Caveator, it is expedient for this Court to examine relevant section of
the Act 1961, which are extracted as under:- Section 25- Deposit of
rent by tenant. -
(1) Where the landlord does not accept any rent
tendered by the tenant within the time referred to in
Section 24 or refuses or neglects to deliver a receipt
referred to therein or where there is a bona fide doubt
as to the person or persons to whom the rent is
payable, the tenant may deposit such rent with the
Rent Controlling Authority in the prescribed manner
and such deposit of rent shall be a full discharge of the
tenant from the liability to pay rent to the landlord.
(2) The deposit shall be accompanied by an
application by the tenant containing the following
particulars, namely :
(a) the accommodation for which the rent is
deposited with a description sufficient for
identifying the accommodation;
(b) the period for which the rent is deposited;
(c) the name and address of the landlord or the
person or persons claiming to be entitled to
such rent;
(d) the reasons and circumstances for which the
application for depositing the rent is made;
(e) such other particulars as may be prescribed.
(3) On such deposit of the rent being made, the Rent
Controlling Authority shall send in the prescribed
manner a copy or copies of the application to the
landlord or persons claiming to be entitled to the rent
with an endorsement of the date of the deposit.
(4) If an application is made for the withdrawal of any
deposit of rent, the Rent Controlling Authority shall, if
satisfied that the applicant is the person entitled to
receive the rent deposited, order the amount of the
rent to be paid to him in the manner prescribed and
such payment of rent shall be a full discharge of the
Rent Controlling Authority from all liability to pay rent
to the landlord :
Provided that no order for payment of any deposit of
rent shall be made by the Rent Controlling Authority
under this sub-Section without giving all persons
named by the tenant in his application under sub-
Section (2), as claiming to be entitled to payment of
such rent, an opportunity of being heard and such
order shall be without prejudice to the rights of such
persons to receive such rent being decided by a Court
of competent jurisdiction.
(5) If at the time of filing the application under sub-
Section (4), but not after the expiry of thirty days from
receiving the notice of deposit, the landlord or the
person or persons claiming to be entitled to the rent
complains or complain to the Rent Controlling
Authority that the statements in the tenant's
application of the reasons and circumstances which
led him to deposit the rent are untrue, the Rent
Controlling Authority, after giving the tenant an
opportunity of being heard, may levy on the tenant a
fine which may extend to an amount equal to two
months' rent, if the Rent Controlling Authority is
satisfied that the said statements were materially
untrue and may order that a sum out of the fine
realised be paid to the landlord as compensation.
(6) The Rent Controlling Authority may, on the
complaint of the tenant and after giving an opportunity
to the landlord of being heard, levy on the landlord a
fine which may extend to an amount equal to two
months' rent, if the Rent Controlling Authority is
satisfied that the landlord, without any reasonable
cause, refused to accept rent though tendered to him
within the time referred to in Section 24 and may
further order that a sum out of the fine realised be
paid to the tenant as compensation.
11. Section 26. Time limit for making deposit and consequences of
incorrect particulars in application for deposit. -
(1) No rent deposited under Section 25 shall be
considered to have been validly deposited under that
Section, unless the deposit is made within twenty-
one days of the time referred to in Section 24 for
payment of the rent.
(2) No such deposit shall be considered to have
been validly made, if the tenant wilfully makes any
false statement in his application for depositing the
rent, unless the landlord has withdrawn the amount
deposited before the date of filing an application for
the recovery of possession of the accommodation
from the tenant.
(3) If the rent is deposited within the time mentioned
in sub-section (1) and does not cease to be a valid
deposit for the reason mentioned in sub-Section (2),
the deposit shall constitute payment of rent to the
landlord, as if the amount deposited had been validly
tendered.
12. Section 27. Saving as to acceptance of rent and forfeiture of rent in
deposit-
(1) The withdrawal of rent deposited under Section
25 in the manner provided therein shall not operate
as an admission against the person withdrawing it of
the correctness of the rate of rent, the period of
default, the amount due, or of any other facts stated
in the tenant's application for depositing the rent
under the said Section.
(2) Any rent in deposit which is not withdrawn by the
landlord or by the person or persons entitled to
receive such rent shall be forfeited to Government
by an order made by the Rent Controlling Authority,
if it is not withdrawn before the expiration of five
years from the date of posting of the notice of
deposit.
(3) Before passing an order of forfeiture, the Rent
Controlling Authority shall give notice to the landlord
or the person or persons entitled to receive the rent
in deposit by registered post acknowledgment due at
the last known address of such landlord or person or
persons and shall also publish the notice in his
office, and if the amount of rent exceeds hundred
rupees, shall also publish it in any local newspaper.
13. Section 29 (1) of Chhattisgarh Accommodation Control Act, defines
powers of Rent Controlling Authority;-
(1) The Rent Controlling Authority shall have the
same powers as are vested in a Civil Court under
the Code of Civil Procedure, 1908 in any
proceeding before it in respect of the following
matters, namely:
(a) summoning and enforcing the examining him on oath;
(b) requiring the discovery and production of documents;
(c) issuing commissions for the
(d) any other matter which may
and any proceeding before the Rent Controlling Authority
shall be deemed to be a judicial proceeding within the meaning
of Section 193 and Section 228 of the Indian Penal Code, 1860
(XLV of 1860), and the Rent Controlling Authority shall be
deemed to be a civil Court within the meaning of Section 480
and Section 482 of the [Code of Criminal Procedure, 1898 (V of
1898).
Section 29(2);- For the purposes of holding any inquiry or
discharging any duty under this Act, the Rent Controlling
Authority may,-
(a) after giving not less than twenty-four hours' notice
in writing, enter and inspect any accommodation at
any time between sunrise and sunset; or
(b) by written order, require any person to produce for
his inspection, all such accounts, books or other
documents relevant to the inquiry at such time and at
such place as may be specified in the order.
14. Section 30. Procedure to be followed by Rent Controlling
Authority.
(1) No order which prejudicially affects any person
shall be made by the Rent Controlling Authority under
this Act without giving him a reasonable opportunity of
showing cause against the order proposed to be
made and until his objections, if any, and any
evidence he may produce in support of the same,
have been considered by the Rent Controlling
Authority.
15. From the above stated provisions of the Act, it is quite vivid that the Rent
controlling authority while deciding the case have power of Civil Court and
since there was a dispute with regard to ownership of the rented property,
even in the order sheet dated 14.06.2006 it has been recorded that there
are disputed facts about the ownership or tenancy which cannot be
decided without following the due process of law still erred in not giving
opportunity to the appellant to lead evidence to substantiate his averments
and simply dismissed the application on the count that the rent from
October 1989 till 31.12.2005 has not been deposited on 31.01.2006. Even
the Rent Controlling Authority has not followed the provisions of Rule 16 of
the Chhattisgarh Accommodation Control Rule 1966 which provides that in
deciding any question relating to procedure not specifically provided by the
Act and these rules, the Rent Controlling Authority shall, as far as possible,
be guided by the provisions contained in the Code of Civil Procedure, 1908
which also clearly demonstrate that the appellant should have been given
an opportunity to lead evidence to substantiate his claim. Since the
procedure has not been followed by the Rent Controlling Authority,
therefore, the order passed by the Rent Controlling Authority affirmed by
the Appellate Authority is not sustainable and same deserves to be set
aside.
16. The learned Rent Controlling Authority has not followed the procedure as
provided in the statue i.e. Chhattisgarh Accommodation Control, Act 1961.
It is well settled legal position that if the statue provides that any particular
things have to be done in a particular manner, any divergent from the
standard procedure prescribed under the statute which is violation of
natural justice will vitiate the entire decision making process of the
authority. It is crystal clear that from the material placed on record that
despite observing by the authority to record a finding that the averments
made by the plaintiff cannot be ascertained without proper procedure has
not granted any opportunity to the appellant to lead evidence in support of
their case and thereafter to give opportunity to the respondents to rebut
the same. Thus, order dated 18.10.2006 passed in Rent Case No. 2/A-
90(3)/2005-06 and the order dated 29.03.2007 passed by the Learned
First Additional District Judge, Bilaspur in Miscellaneous Civil Appeal No.
50/2006 is set aside and the matter remanded back to the Rent Controlling
Authority for deciding the matter afresh in accordance with the law.
17. Accordingly, the instant Second appeal is allowed and the matter is
remanded back to the Rent Controlling Authority to decide the case after
giving opportunity to the appellant to lead evidence and to give opportunity
to the respondents to rebut the same by adducing cogent evidence.
18. With the aforesaid direction the second appeal is allowed in part.
Sd/-
(Narendra Kumar Vyas)
Judge
Santosh
