AJIT KUMAR CHAKRAVARTY Vs. SARBA MANGALA DEVI

JUDGEMENT

(1.) 1. The petitioner Ajit Kumar Chakravarty is the tenant of a house in the town of Giridih which bears holding No. 274 of Ward No. 1 of Giridih Municipality. It is said that the house belonged to one Ashutosh Chatterjee who is dead and has left behind him four sons and a widow. The widow Srimati Sarba Mangala Devi made an application to the House Controller under Section 11 of the Bihar Buildings Control Act of 1947 (Act 3 of 1947) for an order of eviction against the petitioner on certain grounds. After enquiry was made, the Controller passed an order of eviction on 13-12-1949 and directed the petitioner to vacate the house. The main ground upon which the order of eviction was passed was that the petitioner was a habitual defaulter who has not paid rent for a long time. An appeal was taken on behalf of the petitioner to the Commissioner of Chotanagpore under Section 18 of the Statute. The Commissioner dismissed the appeal on 12-12-1950. Thereafter the petitioner instituted a suit in the Court of the Munsif of Giridih in which the petitioner asked for a declaration that the House Controller had no jurisdiction to pass the order of eviction. The petitioner also asked for a permanent injunction restraining the opposite party from executing the order of eviction. The petitioner also applied for an 'ad interim' order of injunction against the opposite party Sarba Man-gala Devi restraining her from executing the order of eviction. The learned Munsif rejected the application for the grant of temporary injunction. The petitioner took an appeal against this order to the District Judge of Hazaribagh. The appeal was dismissed by the District Judge on the ground that the petitioner had made out no prima facie case. Thereafter the petitioner moved the High Court in revision. The application in revision was dismissed by Das, J. by his order dated 24-2-1953 on the ground that the petitioner had made out no prima facie case for issue of a temporary injunction. The petitioner has now moved the High Court for issue of an appropriate writ under Article 226 of the Constitution to quash the order of the House Controller and of the Commissioner of Chotanagpore in appeal. In the alternative, the petitioner has asked that the order of the House Controller and of the Commissioner of Chotanagpore should be quashed by the High Court under Article 227 of the Constitution.

(2.) IN support of this rule, Mr. B.C. Ghosh made the submission that the order of the House Controller was without jurisdiction since Sarba Mangala Devi, being only a co-sharer landlord, was not entitled to maintain an application for eviction under Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act of 1947. Learned counsel also said that the order was without jurisdiction since the officer who held the inquiry did not give any notice to the petitioner and also that the House Controller had no power under the Act to direct any other officer to make the enquiry. Counsel also, took the point that the finding of the Commissioner of Chotanagpore on the question of non-payment of rent was a finding not supported by any evidence and it should be held to be no finding in the eye of law. We do not propose to consider and decide the question raised by Mr. B. C. Ghosh, for we are of opinion that this application must be rejected on the ground that the petitioner has availed himself of the alternative remedy by way of a suit. It is the admitted position that after the Commissioner of Chotanagpore dismissed the appeal, the petitioner instituted a suit in the Court of the Munsif of Giridih asking for a declaration that the order of the House Controller and the order of the Commissioner of Chotanagpore in appeal was without jurisdiction. The petitioner also asked for a permanent injunction restraining the opposite party from executing the order of eviction in the Civil Court. The petitioner instituted the suit in the Court of the Munsif of Giridih about three years back, that is, on 1-2-1951. It is clear upon these facts that the petitioner| has availed himself of the alternative remedy by way of a suit, and this application for a writ under Article 226 of the Constitution or for interference by the High Court under Article 227 of the Constitution cannot be obviously entertained. The question at issue in the civil suit is essentially the question of jurisdiction of the House Controller and of the Commissioner of Chotanagpore in appeal. The question raised in this application involves precisely the same matter as to the jurisdiction of the House Controller to order eviction of the petitioner under the provisions of Section 11 of the Act. IN these circumstances it is obvious that this application cannot be entertained and the petitioner must prosecute his-remedy in the Court of the Munsif of Giridih where he has already instituted a suit for precisely the same relief.