Md. Ishteyak Ahmad @ Pappan vs Ayub Khan
2022 Latest Caselaw 4085 Jhar

    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    (Civil Writ Jurisdiction)
                   W.P. (C) No. 3157 of 2020
                     ........

Md. Ishteyak Ahmad @ Pappan .... ..... Petitioner Versus Ayub Khan .... ..... Respondent

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO ............

For the Petitioner : Ms. Monalisa Singh, Advocate.

    For the Respondent                     : Mr. A.K. Sahani, Advocate.
                                ........
    07/11.10.2022.

Heard, learned counsel for the petitioner, Ms. Monalisa Singh and learned counsel for the respondent, Mr. A.K. Sahani.

Petitioner - Md. Ishteyak Ahmad @ Pappan, son of Md. Yunus, resident of Village- Naisarai, P.O.- Ramgarh, P.S.- Ramgarh, District- Ramgarh, Jharkhand, having his shop at Sunderbagh Tand Raja Bangla, Main Road, Ramgarh has assailed the eviction proceeding initiated under the provisions of Jharkhand Building (Lease, Rent and Eviction) Control Act, 2011.

Learned counsel for the petitioner, Ms. Monalisa Singh has submitted, that without having a clear finding with regard to the relationship between the landlord and the tenant, no proceeding under the Jharkhand Building (Lease, Rent and Eviction) Control Act, 2011 can be initiated and proceeded.

Learned counsel for the petitioner, Ms. Monalisa Singh has further submitted, that the order dated 18.01.2019 passed by the learned House Rent Controller-cum-Sub-Divisional, Officer Ramgarh in J.B.C. (Eviction Suit) Case No. 21/2018, has been set aside by the Deputy Commissioner-cum-District-Magistrate, Ramgarh in terms of order dated 14.10.2019 passed in Eviction Appeal No. 23/2019 and remanded the matter before the Sub Divisional Officer, Ramgarh for fresh consideration on the point of relationship of landlord and tenant, but the order of the Deputy Commissioner, Ramgarh has been assailed by the plaintiff/respondent before the Commissioner, North Chotanagpur Division, Hazaribagh claiming himself to be Power of Attorney Holder of the landlord and the Commissioner, North Chotanagpur Division, Hazaribagh without expressing his finding, has concurred with the order of the House Rent Controller-cum-Sub Divisional Officer,

Ramgarh and thus passed an order without giving any finding, in the revision application vide J.B.C.R. No. 09/2020 in terms of order dated 10.09.2020.

Learned counsel for the petitioner, Ms. Monalisa Singh has further submitted, that the respondent is claiming himself to be a Power of Attorney Holder, for and on behalf of the legal heirs of Late Taj Mohammad and Asraf Mian, without disclosing the details of power of attorney, given to him by the legal heirs of Late Taj Mohammad and Asraf Mian. On the basis of such document, respondent, Ayub Khan has filed an application for eviction of sole petitioner, Md. Ishteyak Ahmad @ Pappan, son of Md. Yunus by impleading both as defendant / opposite party nos. 1 & 2, only on the basis of his residential address and shop address.

Learned counsel for the petitioner, Ms. Monalisa Singh has further submitted, that J.B.C. (Eviction Suit) Case No. 21/2018 has been filed on the ground of personal necessity and default. So far the suit for personal necessity is concerned, it can only be filed by plaintiff in person or co-owner in person, showing his personal necessity of building, but it cannot be filed on the basis of power of attorney that the landlord has personal requirement of the suit property for his own use, as such, the court of House Rent Controller, Ramgarh has wrongly passed the impugned order dated 18.01.2019 and the Commissioner, North Chotanagpur Division, Hazaribagh has also not given any finding except that he has recorded the finding of the House Rent Controller- cum-Sub-Divisional, Officer, Ramgarh without expressing his own finding and opinion.

Learned counsel for the petitioner, Ms. Monalisa Singh has thus submitted, that it was incumbent upon the courts below to give a clear cut findings, with regard to the relationship of tenant and landlord before invoking provisions under Jharkhand Building (Lease, Rent & Eviction) Control Act, 2011, as such the order dated 18.01.2019 passed by learned House Rent Controller-cum-Sub- Divisional Officer, Ramgarh in J.B.C. (Eviction Suit) Case No.21 of 2018 and order dated 10.09.2020 passed by learned Commissioner, North Chotanagpur Division, Hazaribagh in J.B.C.R. No. 09/2020 may be set aside, as the appellate court of Deputy Commissioner-cum- District Magistrate, Ramgarh has rightly directed the Sub-Divisional

Officer, Ramgarh to decide the issue under Section 4 of the Jharkhand Building (Lease, Rent and Eviction) Control Act, 2011 with regard to relationship of landlord and tenant in terms of order dated 14.10.2019 passed in Eviction Appeal No. 23/2019.

Learned counsel, Mr. A.K. Sahani appearing for the landlord / plaintiff being respondent in the present writ petition has submitted, that though in the cause title of J.B.C.R. No. 09/2020, the details of the power of attorney has not been given, but any person being agent of landlord can file an application for eviction, under the Jharkhand Building (Lease, Rent and Eviction) Control Act, 2011.

Learned counsel for the respondent, Mr. A.K. Sahani has further submitted, that for the day to-day affairs, the power of attorney has been given by the Owner in favour of the Ayub Khan, who was petitioner before the House Rent Controller-cum-Sub-Divisional Officer, Ramgarh in J.B.C. Eviction Suit Case No.21 of 2018 and petitioner, Ayub Khan has been examined as P.W.-1, showing personal necessity of landlady Sairun Nisha (Mousi), as such, no prejudice has been caused to the writ petitioner / defendant in the court of House Rent Controller-cum-Sub-Divisional Officer, Ramgarh so as to take such plea.

Learned counsel for the respondent, Mr. A.K. Sahani has further submitted, that from perusal of petition in entirety the relationship of the legal heirs and registered power of attorney holder given in favour of the respondent herein has been discussed in para-1 to 14 of the petition filed before learned House Rent Controller-cum-Sub Divisional Officer, Ramgarh, as such, the learned House Rent Controller-cum- Sub-Divisional Officer, Ramgarh has rightly appreciated the things in the impugned judgment dated 18.01.2019 passed in J.B.C. (Eviction Suit) No.21 of 2018 by recording the same at internal page no. 5, which may profitably be quoted hereunder:-

izFke i{k ds }kjk miyC/k djk;s x;s lk{; ,oa nLrkostksa ls Li"V gS fd foi{kh [kkfr;kuh jS;r ds okjh'kku ds fdjk;snkj Fks rFkk [kkfr;kuh jS;r ds okjh'kkuksa ls iz'uxr ifjlj dk eq[rkjukek izFke i{k dks izkIr gSA Qyr% foi{kh eks- bLrsvkd vgEn @iIiq izFke i{k ds fdjk;snkj gSA

Learned counsel for the respondent, Mr. A.K. Sahani has further submitted, that the agreement between the parties has also been elaborately discussed by House Rent Controller-cum-Sub

Divisional Officer, Ramgarh in J.B.C. (Eviction Suit) Case No.21 of 2018 in terms of order dated 18.01.2019 at internal page no. 6, where the court below has held that :-

U;k;ky; esa iz'uxr [kkrk IykWV esa nkf[ky Eviction Suit esa lHkh izfroknh ds }kjk 'kiFk i= ds ek/;e ls dgk x;k gS fd mUgksus lHkh nqdku ,oa xSjst okyksa dh ,d dfeVh cuk;k ftlesa buds }kjk dqN iSls tek fd;k tkus yxkA fdlh ds }kjk Li"V :i ls U;k;ky; dks ugh crk;k x;k gS fd dfeVh esa gj ekg ;k frekgh ;k Nekgh ;k okf"kZd fdrus :i;s tek fd;s tkrs FksaA blls izrhr gksrk gS fd nqdku vFkok xSjst [kkyh djus ds ,ot esa fn, x;s :i;s dks >qBk lkfcr djus ds fy, buds } kjk ,d lkFk feydj ,d eux<+r dgkuh x<+h xbZ gSA

Learned counsel for the respondent (petitioner in the court below) has thus submitted, that the order of the House Rent Controller- cum-Sub-Divisional Officer, Ramgarh has been wrongly interpreted by the Deputy Commissioner -cum - District Magistrate, Ramgarh in Eviction Appeal No. 23/2019 in terms of order dated 14.10.2019.

Learned counsel for the respondent has drawn attention of this Court towards Para-3 of the order dated 14.10.2019 passed by Deputy Commissioner-cum-District Magistrate Ramgarh, in Eviction Appeal No. 23/2019 to show the legal acumen of the Deputy Commissioner- cum-District Magistrate, Ramgarh exercising quasi-judicial power. The Deputy Commissioner, Ramgarh has recorded that appeal has been filed with delay, but without condoning the delay, the appeal has been allowed.

Learned counsel for the respondent has placed para-3 of order dated 14.10.2019 passed by Deputy Commissioner-cum-District, Magistrate, Ramgarh, which may profitably be quoted hereunder:- "3 mHk; i{kksa ds fo}ku vf/koDrk dk cgl lquus ,oa vihykFkhZ }kjk U/S-5 of the Limitation Act ds rgr~ dkyck} dks {kkUr djus gsrq nk;j vkosnu ds voyksdu ls Li"V gS fd vihykFkhZ }kjk nk;j vihy vkosnu dkyckf}r gSA

Learned counsel for the respondent, Mr. A.K. Sahani has further submitted, that if the appeal has been found to be barred under the law of limitation, the appeal cannot be allowed without condoning such delay, as such, the Deputy Commissioner-cum-District Magistrate, Ramgarh, lacks complete legal acumen in deciding such matter.

Learned counsel for the respondent, Mr. A.K. Sahani has further submitted, that in the last part of the order dated 14.10.2019, whereby the matter has been remanded to the court of House Rent Controller- cum-Sub Divisional Officer, Ramgarh, the Deputy Commissioner,

Ramgarh, has again stated that appeal is rejected (vLohd`r), meaning thereby that on the one hand the Deputy Commissioner, Ramgarh has remanded the matter to the court below and on the other hand, he has rejected the appeal, as such, the respondent herein being the plaintiff in the court of House Rent Controller-cum-Sub Divisional Officer, Ramgarh and respondent in the court of Deputy Commissioner-cum- District Magistrate, Ramgarh, has no other option but to move before the court of Commissioner, North Chotanagpur Division, Hazaribagh and the Commissioner, North Chotanagpur Division, Hazaribagh has rightly passed the order considering and taking note of the findings recorded by the House Rent Controller-cum-Sub Divisional Officer in J.B.C. (Eviction Suit) Case No. No. 21/2018, as such, this Court may not interfere with the same.

Learned counsel for the respondent, Mr. A.K. Sahani has further submitted, that so far compliance of Section 4 of the Jharkhand Building (Lease, Rent and Eviction) Control Act, 2011 i.e. Tenancy agreement to be in written form is concerned, the same is not applicable with retrospective effect. If a tenancy is running prior to enactment of Jharkhand Building (Lease, Rent and Eviction) Control Act, 2011 on the basis of oral agreement, it does not mean that the case will not fall under the category of Jharkhand Building (Lease, Rent and Eviction) Control Act, 2011 because as per Section 4 of Jharkhand Building (Lease, Rent and Eviction) Control Act, 2011, it is only on the commencement of this Act, the landlord and the tenant shall separately file particulars about such tenancy with the controller concerned in such form and in such manner and within two years, as may be prescribed from the date of enactment of the Act, as such, in a long running tenancy, maintainability of the application under the Jharkhand Building (Lease, Rent and Eviction) Control Act, 2011 cannot be raised under Section 4 of the Act, 2011.

In reply, learned counsel for the petitioner, Ms. Monalisa Singh has submitted, that there was two years grace period mentioned in proviso of Section 4 of the Jharkhand Building (Lease, Rent and Eviction) Control Act, 2011, though this Act was notified in the year 2015, but such compliance was not made as required under Section 4 within two years, rather the suit was filed in the year 2018, as

such eviction order cannot be passed under the Jharkhand Building (Lease, Rent and Eviction) Control Act, 2011, as Section 106 of the Transfer of Property Act will operate, as such, landlord / plaintiff (respondent herein) can file eviction suit under the provisions of Transfer of Property Act.

After hearing learned counsel for the parties and on the basis of materials available on record and argument advanced by both the parties, it appears that the Deputy Commissioner, Ramgarh has no proper understanding with regard to the hindi word "vLohd`r" and "dkyckf}r" if the appeal is "vLohd`r" then appeal is dismissed then there is also no question of remand and if the appeal is time barred then there is no question of remand, as such, the Commissioner, North Chotanagpur Division, Hazaribagh, who has passed an order without expressing his opinion, is directed to consider the materials available on record after giving an opportunity of hearing to both the parties and their lawyers and pass a reasoned order in accordance with law showing his opinion with regard to the findings given by the House Rent Controller-cum-Sub Divisional Officer, Ramgarh with respect to landlord tenant relationship or on any point raised by the parties before him, but no opportunity shall be given to any of the parties to adduce evidence before him.

Both the parties have agreed before this Court, that they shall appear before the court of learned Commissioner, North Chotanagpur Division, Hazaribagh on 16.11.2022.

The Commissioner, North Chotanagpur Division, Hazaribagh is directed to decide the issue within a period of three months from the date of appearance of the parties.

Accordingly, the writ petition is disposed of.

I.A. No.6179 of 2020 stands closed.

(Kailash Prasad Deo, J.) R.S.