Vijay Sharma vs Smt. Kusum Awasthi
2022 Latest Caselaw 6053 Chatt

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                                                                    AFR

         HIGH COURT OF CHHATTISGARH, BILASPUR

                        WPC No. 3395 of 2022


1.   Vijay Sharma, Aged About 60 Years,

2.   Shri Ajay Sharma, Aged About 58 Years,

3.   Shri Sanjay Sharma, Aged About 57 Years,

4.   Shri Nandkishore Sharma, Aged About 55 Years,

     All are S/o Late Radheshyam Sharma, R/o Sharma Kirana Anaj
     Bandhar, Infront Of Megh Market, Near City Kotwali, Raipur,
     Tehsil And District Raipur Chhattisgarh.

                                                         ---- Petitioners

                                  Versus

1.   Smt. Kusum Awasthi W/o Late Praful Kumar Awasthi, R/o Near
     Kotwali, Infront Of Megh Market, Kusum Kunj, Budhanpara,
     Raipur, Tehsil And District Raipur Chhattisgarh.

2.   Chhattisgarh Rent Control Tribunal, Raipur, District Raipur
     Chhattisgarh.

3.   Rent Controller, Raipur, District Raipur Chhattsgarh.

                                                      ---- Respondents

For Petitioners : Mr. Raza Ali, Advocate.

For Respondent No. 1 : Ms. Surya Kawalkar Dangi, Advocate

Hon'ble Shri Justice Goutam Bhaduri Hon'ble Shri Justice Radhakishan Agrawal

Judgment on Board Per Goutam Bhaduri J.

28/09/2022

1) Heard.

2) The instant petition is against the order of the Rent Control Tribunal, Raipur (C.G.) dated 12/07/2022 passed in Appeal No. 9A/2020, whereby, the order passed by the Rent Control Authority on 20/02/2020 has been affirmed. Hence, the instant petition is by the tenant.

3) The short facts of this case are that the respondent Smt. Kusum

Awasthi filed a petition to get the vacant possession of premises

from the petitioners, who are the tenants under the provisions of

the Chhattisgarh Rent Control Act, 2011 (in short 'the Act,

2011"). The application was primarily under Section 12 read with

Schedule 2(11)(h) of the Act, 2011. For the sake of brevity,

Section 12(2) and Clause (11)(h) of Schedule 2 of the Act, 2011

is reproduced hereunder:-

"Section 12. Rights and Obligations of Landlords and Tenants. -

(1) xxx xxx xxx.

(2) Every landlord shall have rights according to Schedule

2. The Tribunal and Rent Controller shall act at all times to secure to the landlord these rights :

Provided that-

(a) In case of any clash of interests of the landlord and the tenant, and/or any point of doubt in respect of matters relating to rent, the benefit thereof shall be granted to the tenant.

(b) In case of any clash of interests of the landlord and the tenant, and/or any point of doubt in respect of matters relating to returning possession of the accommodation to the tenant, benefit thereof shall be granted to the landlord.

"Clause 11(h) appended with Schedule 2 of the Act, 2011 reads as under:-

11. Right to seek from the Rent Controller eviction of the tenant on the following grounds :

(a) xxx

(b) xxx

(c) xxx

(d) xxx

(e) xxx

(f) xxx

(g) xxx

(h) On 6 months notice to the tenant in writing, without any obligation to assign any reason, but on the condition that the accommodation will not be leased out at a higher rent for atleast 12 months thereafter :

Provided, however, that in case of the following special categories of landlords and/or their spouse desiring the accommodation back for own use, the period of notice shall be one month: current or retired government servants, widows, personnel of the armed forces, persons coming to physical or mental handicap, and senior citizens (above the age of 65 years)."

4) The Rent Control Authority passed the eviction order on

20/02/2020 which was subject of challenge before the Rent

Control Tribunal under the Act, 2011 and the Rent Control

Tribunal too by its order dated 12/07/2022 has dismissed the

appeal. Hence, this petition.

5) Learned Counsel for the petitioners would submit that The Rent

Control Authority and the Tribunal failed to consider the fact that

the relation of landlord and tenant was not established,

therefore, the application of the Act, 2011 would not come into

operation. He would further submit that the Tribunal has decided

the case comprising of President and one Member and

according to Chhattisgarh Exercise of Powers and Discharge of

Functions of the Chhattisgarh Rent Control Tribunal Rules,

2015, the Bench is required to be constituted with two or more

members and here the only one member was present apart from

the President, therefore, the order of Bench would be nullity.

6) Per contra, learned Counsel for the respondent land lord would

submit that by way of surprise element arguments have been

advanced before this Court. She would further submit neither

those grounds were ever taken before the Tribunal nor the

grounds have raised in the writ petition. She would further

submit the statement of witnesses would show that the payment

of rent was accepted in between the parties, therefore, the

respondent would be within the definition of landlord. Further it is

submitted that when the petition is primarily under Article 227 of

the Constitution of India, the finding of fact should not normally

be interfered and reliance is placed in Khimji Vidhu V. Premier

High School, reported in (1999) 9 SCC 264. Further reliance is

also placed on a decision of this Court in Shrawan Kumar Saraf

V. Ravikant Mishra and Others (WPC No. 650/2020) decided

by this Court on 18/07/2022 to submit that in the proceedings

under Rent Control, the question of title as has been raised

cannot be gone into. Therefore, the petition being devoid of

merits and deserves to be dismissed.

7) We have heard learned Counsel for the parities at length,

perused the documents and the evidence on record.

8) The arguments which was been advanced by the petitioners is

that the Tribunal did not have the jurisdiction appears to be

misconceived for the reason that Rule 4 of the Exercise of

Powers and Discharge of Functions of the Chhattisgarh Rent

Control Tribunal Rules, 2015 speaks about the power of the

"Bench" which would consists of two or more member. In such

eventuality the harmonious construction would be that when the

orders have been passed by the President and one member

then it would be within definition of Bench. Further, it cannot be

stated that the Tribunal was devoid of jurisdiction in view of

section 6 of the Act, 2011 which gives the power to State to form

a Tribunal and the Tribunal having been constituted, the

presence of Chairman and one another member would be within

definition of a 'Bench'.

9) Further, Rule 3 of Chhattisgarh Rent Control Tribunal Rules,

2015 also empowers that the Chairman may constitute a Bench

of one or more member. This argument has not been raised

before the petitioners submitted to the jurisdiction of the Tribunal.

The grounds have also not been raised in the writ petition. It

would be a travesty of justice if such argument is given a

weightage inasmuch as the petitioners having submitted

themselves to the jurisdiction, lost the battle are now trying to

raise grounds by a surprise element without any legal basis. It

may be also seen in other angle that according to argument of

the petitioner if the Tribunal did not have the jurisdiction and the

petitioner was well sanguine of the legal position, then order of

the Rent Control Tribunal would come to fore and the instant

petition would be liable to be dismissed for delay and latches for

petitioner. Furthermore, a likewise submission raising objection

regarding jurisdiction is deprecated by the Supreme Court, it has

been laid down the objection of jurisdiction when it is raised as a

surprise element during the argument, it cannot be considered if

the same is not raised during trial and issues are framed on that.

The Supreme Court in the matter of A. Kanthamani V. Nasreen

Ahmed, (2017) 4 SCC 654, observed that objection regarding

maintainability of a petition/suit to be raised at the first instance.

10) Now coming back to the second submission of the petitioner that

respondent is not the owner of the premises as such the Rent

Control Authority was not vested with the jurisdiction necessarily

it reads as to lay hands to the definition of the landlord and

tenant under the Act, 2011. The landlord is defined under

Section 2(5) and tenant is defined under Section 2(14). For sake

of brevity both the definitions are reproduced hereunder :-

2(5) "Landlord" means a person who for the time being is receiving or is entitled to receive, the rent of any accommodation, whether on his own account or on account of or on behalf of or for the benefit of any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or to be entitled to receive the rent, if the accommodations were let to a tenant;

(14) "Tenant" means-

(i) the person by whom or on whose account or behalf rent is, or but for, a contract express or implied, would be payable for any accommodation to his landlord including the person who is continuing its possession after the termination of his tenancy otherwise than by an order or decree for eviction passed under the provisions of this Act; and

(ii) in the event of death of the person referred to in sub-clause (i)-

(a) in case of accommodation let out for residential purposes, his surviving spouse, son, daughter, mother and father who had been ordinarily residing with him in such accommodation as member of his family up to his death;

(b) in case of accommodation let out for commercial or business purposes, his surviving spouse, son, daughter, mother and father who had been ordinarily carrying on business with him in such accommodation as member of his family up to his death.

11) Now coming back to the statements and the averments, Kusum

Awasthi, the respondent, has categorically stated she was

receiving the rent after the death of the father. Petitioner Ajay

Sharma in his examination-in-chief has stated that after death of

Deva Prasad Dubey, the erstwhile landlord, Kusum Awasthi was

receiving the rent on behalf of all the legal heirs of deceased.

Similar statement has been made by petitioner Vijay Sharma

that after death of Deva Prasad Dubey, Kusum Awasthi was

receiving the rent. In cross-examination, this witnesses Vijay

Sharma has admitted the fact that in the suit premises he is in

possession in the capacity of a tenant. He further submitted that

in respect of the rented premises the dispute was going on with

Kusum Awasthi and because of the dispute the rent was

deposited with the Rent Control Authority which was required to

be paid to Kusum Awasthi. Similar averments have been made

in cross-examination by Ajay Sharma, the defendant. Further

cross-examination of Ajay Sharma would show that in earlier civil

suit for ejectment he admitted that Kusum Awasthi to be the

landlord.

12) The said statements when are considered against the definition

of landlord, it purports that landlord means a person who for the

time being is receiving rent or entitled to receive the rent of any

accommodation. Therefore, the contention of the petitioners that

Kusum Awasthi is not the owner would not be helpful to

petitioner, as the admission exists that they were paying rent to

Kusum Awasthi and in the earlier ejectment proceeding also the

relation of landlord and tenant was admitted.

13) These findings of facts arrived at by both the Court below

appears to be justified on the basis of the evidence and cannot

be said to be perverse. Therefore, following the law laid down in

Khimji Vidhu & Shrawan Kumar Saraf (Supra), we are not

inclined to exercise the power under Article 227 of Constitution

of India to disturb such findings of fact, following the principle

laid down by the Supreme Court wherein it is held the jurisdiction

under Article 227 of Constitution of India should be sparingly

exercised, only to correct the jurisdictional error and not to upset

the pure finding of fact.

14) Consequently, the writ petition has no merit and accordingly it is

dismissed.

               -Sd/-                            -Sd/-
         (Goutam Bhaduri)               (Radhakishan Agrawal)
              Judge                            Judge




Chandrakant



    Head Note

WPC No. 3395 of 2022