SWAROOP KUMAR SETHI Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The present writ petition has been filed for quashing the order dtd. 4/1/2021 passed by the Commissioner, South Chotanagpur Division, Ranchi- the respondent no.2 in J.B.C. Revision Case No.69 of 2017, whereby the said revision filed by the petitioners has been dismissed, affirming the order dtd. 29/9/2017 passed by the respondent no.3. Further prayer has been made for issuance of direction upon the respondents not to give effect of the order dtd. 29/9/2017 passed by the Deputy Commissioner, Ranchi-respondent no.3 in J.B.C. Appeal No.25 R 15/2016-17, whereby the appeal filed by the respondent no.5 was allowed and the order dtd. 25/4/2016 passed by the Rent Controller-cum-Sub-Divisional Magistrate, Ranchi-respondent no.4 in J.B.C. Case No.29 of 2015 was set aside. The petitioners have also prayed for restraining the respondent no.4 from proceeding further with Case No. MP 17 of 2017, arising out of the order dtd. 29/9/2017 passed by respondent no. 3 in J.B.C. Appeal No.25R 15/2016-17, which has been affirmed vide order dtd. 4/1/2021 passed by the respondent no.2, as, according to the petitioners, both the orders are illegal and without jurisdiction, since initial proceeding itself was not maintainable in absence of the notification issued under Sec. 1(3) Jharkhand Building (Lease, Rent and Eviction) Control Act, 2011 (hereinafter to be referred as 'the Act, 2011'), which, in fact, came into force with effect from 15/4/2015.

(2.) The factual background of the case as stated in the writ petition is that the respondent no.5, claiming herself to be the owner-cum- landlady of a shop room, situated at Hariom Market, Din Bandhu Lane, Upper Bazar, Ranchi, filed an application under Sec. 19(1)(c) and (d) of the Act, 2011 before the respondent no.4 on 17/10/2014 (admitted on 13/5/2015) against the petitioner no.1 on the ground of default of rent said to have been due since April 2011 and also on the ground of personal necessity. The petitioner no.1 filed an application before the respondent no.4 on 13/7/2015 for rejecting the application filed by the respondent no.5 being not maintainable, stating that the Act, 2011 was not brought into force in the State of Jharkhand, as necessary notification was not issued in the official gazette of the Government of Jharkhand under Sec. 1(3) of the said Act. Thereafter, the petitioner no.1 also filed show cause reply disputing the claim of the respondent no.5. In the meantime, the petitioner no.2 sought permission to intervene in the matter, claiming to be in possession of the premises in question by virtue of a tenancy agreement dtd. 1/3/1995 entered between her and one with Chetan Sharma for a period of three years to be further extended on certain terms. Her intervention application was allowed on 28/10/2015 and she was made opposite party no.2 in J.B.C. Case no.29 of 2015 filed before the respondent no.4. The respondent no.5 did not choose to appear and examine herself as a witness in the said case, whereas the petitioners and their witnesses were examined and cross-examined. The said case was dismissed vide order dtd. 25/4/2016 passed by the respondent no.4. Aggrieved with the said order, the respondent no. 5 preferred an appeal before the respondent no.3 under Sec. 36 of the Act, 2011, which was registered as J.B.C. Appeal No. 25 R 15 of 2016-17. The said appeal was allowed by the respondent no.3 vide order dtd. 29/9/2017, directing the petitioners to vacate and handover the possession of the premises in question within fifteen days from the date of passing of the order, failing which the respondent no.5 was given liberty to file an appropriate application before the respondent no.4 to get the petitioners evicted from the premises in question. Being aggrieved with the said order, the petitioners preferred revision vide J.B.C. Revision Case No. 69 of 2017 before the respondent no.2. In the meantime, the respondent no.5 filed an application for execution of order passed in J.B.C. Appeal No.25R 15/2016-17 before the respondent no.4 and consequently notice dtd. 16/10/2017 was issued to the petitioners. The petitioners, thereafter, filed a writ petition being W.P.(C) No. 1910 of 2018, which was disposed of vide order 24/4/2018, protecting the petitioners against any coercive step to be taken regarding eviction from the premises in question till disposal of revision filed before the respondent no.2. The said revision filed by the petitioners was finally dismissed by the respondent no.2 vide order dtd. 4/1/2021. Hence, the present writ petition.

(3.) Learned counsel for the petitioners submits that Chetan Sharma- the actual landlord of the petitioners, had filed Partition Suit No.579 of 2010 against the respondent no.5, which was partly decreed in his favour vide judgment dtd. 29/4/2015 passed by the Civil Judge (Sr. Division)-VIII, Ranchi to the extent that he was made entitled to 1/9th share of the suit property. The said judgment goes to establish the fact that Chetan Sharma has got concern with the premises in question and as such he is the landlord of the petitioners, however, the respondent no.4 in the order dtd. 25/4/2016 observed that it was not clear as to whether he got any share in the property. Moreover, the finding of the respondent no.2 that the proceeding was lawfully started on 13/5/2015 is in contravention of the order dtd. 15/4/2015 passed by a Bench of this Court in W.P.(C) No.5499 of 2014, whereby all the Sub Divisional Officers of the State of Jharkhand were directed not to exercise their power under the Act, 2011 for the reason that the said Act was not brought into force by issuing official gazette notification as mandated under Sec. 1(3) of the said Act. Hence, the application filed by the respondent no.5 could not have been admitted on 13/5/2015 and decided on 25/4/2016 by the respondent no.4, since the notification of Urban Development and Housing Department regarding clarification to avoid ambiguity in application of the old Jharkhand Building (Lease, Rent and Eviction) Control Act, 2000 and the new Act, 2011 was published on 16/5/2016. It is further submitted that the respondent no.5 chose wrong forum by filing an application before the respondent no.4 on 17/10/2014, as the Act, 2011 was not notified on that date. Moreover, the respondent no.2 wrongly shifted the burden to prove existence of tenancy on the petitioners who were opposite parties in the said eviction case, though the said burden was on the party who was seeking eviction. It is also submitted that the respondent no.5 had failed to establish the relationship of landlord and tenant between the parties as also the fact that there was a default in making payment of rent, since neither she examined herself nor produced any evidence or witnesses in support of her claim. It is further submitted that both the respondent nos.2 and 3 wrongly shifted the burden of proof upon the petitioners, though the default on the part of the petitioners in making payment of rent was required to be proved by the respondent no.5. It is further submitted that the existence of relationship of landlord and tenant is sine qua non to maintain an application for eviction under the Act, 2011 and since the same has not been proved, both the orders passed by the appellate as well as revisional authorities deserve to be set aside.