Gujarat High Court
Hiralal Nathubhai Naika vs Nanduben Hiralal Naika D/O ... on 4 February, 2021
Bench: Ashokkumar C. Joshi
C/SCA/22148/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 22148 of 2019
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HIRALAL NATHUBHAI NAIKA
Versus
NANDUBEN HIRALAL NAIKA D/O RATILAL CHUNILAL
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Appearance:
MR HARSHADRAY A DAVE(3461) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MR ANUJ K TRIVEDI(6251) for the Respondent(s) No. 2
NOTICE SERVED(4) for the Respondent(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 04/02/2021
ORAL ORDER
1. This matter is taken up through video conference.
2. Heard learned advocate Mr. Harshadray A. Dave for the
petitioner and learned advocate Mr. Anuj K. Trivedi for the
Respondent No. 2.
3. Rule. Learned advocate Mr. Anuj K. Trivedi for the
Respondent No. 2 waives service. Though duly served, none has
appeared for respondent No. 1. With the consent of learned
advocates for both the sides, the matter is taken up for final
hearing today.
4. The petitioner has filed this petition with the following main
prayers:
"(b) This Hon'ble Court be pleased quash and set aside the
Judgment and order at Annexure A passed by the District
Court, Surat in Regular Civil Appeal Number 205 of 2012;
(C) Pending the admission and final disposal of the
C/SCA/22148/2019 ORDER
application this Hon'ble Court be pleased to stay the
implementation and execution of the impugned order at
Annexure A;"
5. The facts of the case in nutshell are that the petitioner is
the tenant for the suit premises being western side of plot
number 20 situated at main road, Katargam District- Surat, which
is registered with Surat Municipal Corporation vide Tenament
Number - 15D-03-1091-0-001. The entire property belonged to
and was owned by Shri Ratilal Chunilal Naika, father of the
respondents herein. The petitioner is in possession and use of the
suit property since last more than 20 years and was regularly
paying rent of Rs. 50/- initially to Shri Ratilal Chunilal Naika. Upon
his demise the petitioner started paying the rent to the widow of
Shri Ratilal and later upon her demand, to the respondent.
However, due to relation of the petitioner with the respondent
and her ancestors, the respondent and her ancestors were not
issuing receipts for the same and petitioner never objected to
such situation. That petitioner despite his making payment of
rent regularly, the respondent was threatening the petitioner to
vacate the premises and therefore the petitioner was constrained
to prefer Small Civil Suit No. 04 of 2006 before the Small Causes
Court, Surat. After considering the evidence on record and after
hearing both the sides, the Small Causes Court was pleased to
allow the suit and pass judgment and Decree dated 13th May
2011 in favour of the petitioner herein. The respondent, being
aggrieved and dissatisfied by the said decision of the Small
Causes Court, Surat, preferred the Appeal before the District
Court, Surat vide Regular Civil Appeal No. 56 of 2011, which
came to be allowed vide impugned judgment and order dated
30.08.2019.The petitioner has challenged the said order before
this Court by preferring Civil Revision Application, which is
C/SCA/22148/2019 ORDER
pending. The petitioner on the other hand was constrained to
prefer Rent Control Case No. 01 of 2011 before the Deputy
Collector, Surat under Section 23A of the Act seeking restoration
of the electricity supply at his own cost, which was withdrawn
from the premises. Considering the evidence on record, the
Deputy Collector was pleased to allow the application of the
petitioner herein, which came to be challenged before the District
Court, Surat vide Regular Civil Appeal No. 205 of 2012. The
District Court considering the aforesaid evidence in the rent suit,
allowed the appeal of the respondent herein vide its judgment
and order dated 30.08.2019, and hence this petition.
6. Learned advocate Mr. Harshadray Dave for the petitioner
has vehemently and fervently argued that the order passed by
the Collector cannot be challenged before the District Court, so
far as the electricity connection is concerned and therefore, the
same is perverse and illegal in the eyes of law. He further
submitted that no appeal would lie before the District Court and
only revision under Section 29(3) of the Act would lie, however,
the respondent herein has preferred an Appeal and therefore, the
impugned order is without jurisdiction and therefore of nullity.
6.1 In support of his submission, learned advocate Mr. Dave has
placed reliance upon the judgment of this Court in Special Civil
Application No. 5100 of 1992 dated 16.07.2012. in case of
Gulabbhai B. Bhavsar Vs. Deputy Collector, reported in
2012(0)GLHEL-HC 228210.
7. Learned advocate Mr. Anuj K.Trivedi for the respondent no.
2 has taken formal objection, however, could not controvert the
aforesaid settled legal position.
C/SCA/22148/2019 ORDER
8. Having regard to the submissions made by the learned
advocates for the respective parties, and in the facts and
circumstances of the case it would be worthwhile to refer to the
head Note of the decision rendered by this Court in Gulabbhai
B. Bhavsar (Supra) which is extracted here under:
"Bombay Rents, Hotel and Lodging House Rates Control Act,
1947 - S. 23A, 29, 29(3) - Constitution of India -Art. 226, 227 -
Revision - reference made by the Ld. Single Judge to the devision
Bench- question as to whether the order passed u/s 23A of the
Act is revisable before the Ld. District Judge- contradictory view
of Two Judges in respect of maintainability of revision- order
passed u/s 23A of the Act is not appealable u/s 29(1) of the Act -
impugned order passed u/s 23A is revisable u/s. 29(3) of the Act -
no remedy available under Articles 226 and 227 of the
Constitution of India since alternative remedy is avaiable u/s
29(3) of the Act - Application disposed of."
8.1 Thus, it is an disputed fact that the respondent had
preferred an appeal before the District Court under Section 23(A)
of the Bombay Rent Act and apparently, in view of the aforesaid
legal position the same is not maintainable as order passed under
Section 23(A) of the Act is revisable under Section 29(3) of the
said Act, before this Court accordingly, on the said ground only
present petition requires favourable consideration, without going
into detailed merits of the case.
9. For the aforesaid discussion and observations, present
petition succeeds and is allowed accordingly. The impugned
order dated 30.08.2019 passed by the learned Additional District
Judge, Surat in Regular Civil Appeal No. 205 of 2012 is hereby set
aside. Rule is made absolute, with no order as to costs.
(A. C. JOSHI,J)
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