BALMAKUND KHATRY Vs. HARI NARAIN

JUDGEMENT

(1.) This suit was originally filed in the Court of the 1 Subordinate Judge of Patna for declaration that the orders of the Controller and the Commssioner passed under the Bihar Buildings (Lease, Rent and Eviction) Control Act, of 1947, to be referred to in detial presently, were ultra vires and without jurisdiction and for a permanent injunction restraining, the defendants from taking steps to enforce the said orders or to interfere with the plaintiff's possession. An application for a temporary injunction in similar terms was filed and refused by the Court below, Against that order, the plaintiff moved this Court in revision. The application in revision was admitted, and, after hearing both the parties; it became clear that the questions in controversy in the application were exactly the same as the questions in the suit itself. Therefore, with the consent of the parties, we directed that the suit itself be heard by this Court as expeditiously aspossible in view of the urgency of the matter. With the consent of the parties, we have heard the suit after framing the necessary issues. The issues framed are as follows: (1) Whether the order of the Collector dated 30 April 1947 passed in B.B.C. Case No. 26 of 1947 and the order of the Commissioner in appeal dated 26 August 1947 in Case No. 159 of 1947 is ultra vires and. (2) Whether the plaintiff is entitled to a permanent injunction restraining the defendants from enforcing the order passed by the Collector and the Commissioner as in issue No. 2 and to what relief, if any, is the plaintiff entitled.

(2.) The facts of the case lie within a very narrow compass, and are neither in doubt nor in dispute. The plaintiff obtained a registered lease of the premises for a period of two years ending with 15 September 1938. The monthly rent fixed for the premises was Rs. 60 and Rs. 40 was fixed as the rent for the furniture, etc., already there on the premises. Later on, the sum of RS. 100 was increased on different occasions to Rs. 151 per month. The purpose of the tenancy was the running of a cinema house, although there were attached premises for the use of the staff necessary for running the show. It appears further that on the expiry of the term of the lease, the plaintiff held over, though not exactly on the same rent. Hence it was not strictly speaking, a holding over but was the creation of a tenancy from month to month on payment of RS. 151 as the monthly rent. All these years, the plaintiff has been running the cinema house, and a portion of the premises is occupied by his staff. Hence, the buildings are mainly being utilised for running the cinema house, though a small portion is also being utilised for residential purposes. On 10 February 1947, the defendants made an application to the relevant authority for eviction of the plaintiff from the premises on the ground that they required the premises for their own use, as they intended to run a cinema house themselves. On 18 March 1947, the plaintiff showed cause by alleging that the application was not bona fide but was a mere device further to enhance the rent, for which several attempts had been made previously without any success. The plaintiff as opposite party in those proceedings also alleged that he had spent a considerable sum of money over improving the buildings and the furniture for the purpose of running the cinema house. He further stated that any further increase in rent would amount to rack-renting, and he ended by pointing out the difficulties in shifting to another place to run his business, into the details of which it is not necessary to enter for the present purposes. After the plaintiff had shown cause against his eviction, the Deputy Magistrate in charge of these proceedings, after hearing the parties, made a recommendation to the Collector, who was ex officio the Controller under the Act, that the application of the defendants, who were the petitioners in those proceedings was not bona fide, and that, therefore, it should be rejected. After this report was made, the -learned Collector as Controller passed ah order on 30 April 1947, directing the plaintiff to vacate the buildings by 30 October 1947 thus giving the plaintiff the maximum time permissible within the statute for vacating the premises. In making this order, the learned Controller made the following observations: In any case there is nothing to show that they do not really want it in good faith for their own occupation. This is not a case where the building is required for necessary residential purposes either by the petitioners or by the opposite party, but the real question is as to whether one party U to have the benefit of the building and business or the other. The petitioners being the owners of the building, they have undoubtedly got prior claims and had it not been for this Act, they would certainly have had the right to eject the tenant and enter into possession of the building.

(3.) The plaintiff preferred an appeal to the Commissioner from the order of the Controller as quoted above, and the learned Commissioner passed his orders on 26 August 1947, dismissing the appeal but, in the circumstances, granting further extension of the time, namely, up to 81 December 1947, for vacating the premises. While making the order dismissing the appeal, the learned Commissioner made the following observations: There was an argument that the landlord does not want the premises for genuinely opening a cinema house. If the petition is proved to be mala fide then remedy is provided by Sub-section (4) of Section 11, by which in case of mala fide petition the original tenant would be restored to the building. Hence, it would appear that, having lost in both the Courts created by the Act in question, the plaintiff instituted the suit for the reliefs already indicated.