BIDHUBHUSAN SEN Vs. COMMISSIONER PATNA DIVISION

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution for an appropriate writ in respect of the order of the commissioner dated 1-3-1954. By this order the Commissioner set aside the concurrent decision the Rent Controller and the Collector and dismissed the application of the petitioner for ejectment of the opposite party. The petitioner is a landlord of Municipal holding No. 88 New Market, in the Mithapur Bazar, Ward No. 2 within the Patna Municipal Corporation. Opposite party No. 2, Rambilas Singh, is a tenant of one of the rooms in this house on a monthly rental of Rs. 12/-. The room is on the north-eastern side of the aforesaid house. He has been in occupation of this-house since 1943'. The landlord petitioner made an application before the Collector under Sub-section (3) (a) of Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, for a direction to the opposite party to put him in possession of the room in question. His petition was rested on the ground thai: he required the room for setting up Amiya Ranjan Gupta in business. Amiya Ranjan Gupta is the sister's son of the landlord, and his case was that ho was living with him and was maintained by him. The Rent Controller after hearing both the parties found that Amiya Ranjan Gupta was living with the landlord and was also economically dependent upon him. An appeal from his order was taken to the Collector who confirmed his decision. The opposite party then moved the Commissioner in revision. The learned Commissioner held that no evidence was led in the Court below to show that Amiya Ranjan Gupta was actually dependent upon the landlord. He further held that under Section 11 (3) (a) of the Act, the landlord can obtain eviction of the tenant only when be requires the house for his own occupation", and his relations and dependents are not entitled to the benefit of this sub-section. The learned Commissioner; I think, put a narrow construction upon Sub-section (3) (a) of Section 11 of the Act and dismissed the application of the petitioner for ejectment of the opposite party.

(2.) So far as the question whether Amiya Ranjan Gupta was living with, and was dependent upon the landlord petitioner is concerned, it is concluded by the concurrent findings of the Rent Controller and the Collector. The Rent Collector has held that this question was not at all agitated; rather there was no challenge of the fact that Amiya Ranjan Gupta was living with the petitioner and was maintained by him. The learned Collector came to the same conclusion. The learned Commissioner, however, fell into an error when he said that there was no evidence led in the Courts below, that he was economically dependent upon him. As a matter of fact, when the petitioner's allegation was not at all challenged, and both the parties proceeded on the footing that he was living with, and was economically dependent on the landlord petitioner, no evidence to substantiate it was called for. It is not open to us to examine a question of fact afresh, and since the learned Commissioner's observation is against the weight of evidence and the concurrent findings of the Rent Controller arid the Collector, it must, therefore, be taken that Amiya Ranjan Gupta was living jointly with the petitioner landlord and was being maintained by mm. The material question that falls for determination is whether the landlord can require possession of the house by ejectment of the tenant for occupation not by himself but by his relation who is dependent upon him. Sub-section (3) (a) of Section 11, Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, is in these terms:

(3.) The other High Courts have similarly put wider interpretation on such or similar expressions. The Bombay High Court, while interpreting the expression "his own occupation" in Section 11, Bombay Rent Restriction Act, 1939, has held that the words "his own occupation" mean occupation of himself and all persons who are dependent on him. 'Radio Technology Institute v. Pandurang Bapurao', AIR 1946 Bom 212 (C). The present case is amply covered by these decisions, and I respectfully adopt the reasonings of the learned Judges of the Calcutta and the Bombay High Courts.