GHANSHYAMDAS GUPTA Vs. SHIVALDAS

JUDGEMENT

(1.) ON 9-10-1985 the instant petitioner, Ghanshyamdas Gupta, impleading his brothers, Ramjidas Gupta and Haridas Gupta (herein proforma non-petitioners Nos. 3 and 4) also, albeit as proforma applicants, moved the Rent Controlling Authority, Gwalior, for shot, the Authority, under Section 23-A of the M. P. Accommodation Control Act, 1961, for short, the Act for an order against non-petitioners No. 1 and 2 for their eviction from the suit premises. The application having been rejected the instant revision in preferred under Section 23-E of the Act. All the non-petitioners having been duly noticed, on their failure to enter appearance to oppose the revision SPC to each of them was also duly issued. Still, there is no appearance even today on their behalf and as such I have no option except to decide the matter looking into the records and the case law cited by Shri R. D. Jain counsel for the petitioner.

(2.) IN his application the applicant stated that he was a retired Government servant who has rendered service in Maulana Azad Medical College, Delhi, under the central Government, as a Professor in the said institution, upto 18-7-1983. Because he wanted to set up private practice at Gwalior, after his retirement, he required bona fide, for his personal use and occupation, the suit premises which was in occupation of the non-petitioners Nos. 1 and 2. In para 4 he made categorical statement that his brothers ramjidas and Haridas were proforma applicants (albeit being co-owners) and further that it was the requirement of the petitioner himself of the suit house which necessitated the Authority being moved for an order against the tenants-non-petitioners to put the petitioner/landlord in possesion of the suit premises. It may be noticed that the petitioner's plea of his entitlement under section 23-J was self-evident and indeed its scope only was misconceived by the Authority by a wrong interpretation of the cognate provision of section 23-D (3 ).

(3.) LONG five months elapsed and application remained pending before the authority until 9-2-1986, on which date the impugned order was rendered dismissing the application in limine. The Authority took the view that the application was not maintainable on the sole ground that applicants Nos. 2 and 3 (wrongly mentioned as "pratiprarthi" 2 and 3) were "ordinary" landlords and as such the provision of section 23-D (3) could not be invoked. Reliance was placed on a Bench decision of this Court in B. Johnson (1985 MPLJ 675 = 1985 JLJ 793), the purport of which came up for my consideration and interpretation in M/s. Sunil Cloth Stores (1986 MPRCJ 147 ). I took the view that in B. Johnson (supra) the question only of constitutional vires of section 23-D (3) was considered and not its ambit and purport. When any landlord, claiming to belong to the class envisaged in Section 23-J of the Act, moved the Authority for an order for tenant's eviction; it was held in Sunil Coth Stores (supra), a duty was cast on the Authority to ascertain whether such a landlord had made out a prima facie case under either clause (a) or clause (b) of the Section 23-A of the Act. The question, therefore, is, whether the Authority has discharged this duty by ignoring the case of the petitioner wholly. Shri Jain has also drawn my attention to the decision in Smt. Iqbal begam, Civil Revision No. 233 of 1985, disposed of on 4-8-1986, and indeed also to another recent decision of this Court in Lalta Prasad, Civil Revision No. 414 of 1984, disposed of on 21-8-1986. In Smt. Iqbal Begum (supra) I took the view that the case of a landlord under Section 23-J has to be considered and dealt with in a manner as may manifest due application of mind by the Authority to the provisions of Section 23-J and 23-D and such a landlord cannot, at the threshold, be ordered "go out". In Lalta Prasad (supra) the purport of the expression "for himself", which occurs in section 23-A (a)came up for consideration. It was held that in the case of a landlord belonging to the category embraced by Section 23-J, because of the dual force and concurrent operation of Section 23-A (a) and 23-D the "bona fide" nature of his requiremrnt is statutorily recognised and burdern in such a case is placed on the tenant to rebut the statutory presumption. Indeed, it will be sufficient in such a case, for such a landlord, to plead generally "his" requirement of the tenanted premises.