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IN THE HIGH COURT OF JUDICATURE AT PATNA
KHATIM REZA, J.
Second Appeal No. 393 of 2022
(21.6.2024)
Binay Kumar (Male) ... Appellant
vs.
Dr. Shankar Nath ... Respondents
Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 – Sections 11 (1) (f) and 32 – Bihar State Housing Board Act, 1982 – Sections 58 and 59 – Specific Relief Act, 1963 – Section 34 – Eviction of tenant – Plaintiff-respondent without permission of Housing Board subletted shop to defendant-appellant as well as constructed shop which is subject matter of suit – Perpetual lease deed executed and allotted lands for commercial cum residential purpose and not for any other purpose – Restrictions, right of obligation imposed under perpetual lease deed as well as Hire Purchase Agreement were of enduring nature – Requirement for demolition of premises is necessary to protect interest of landlord – Section 11 (1) (f) of BBC Act is very much applicable to comply requirement of bonafide necessity under BBC Act – Plaintiff-respondent is a lessee of Bihar State Housing Board and he does not come under definition of landlord – Plaintiff has no locus to initiate proceeding either on its own motion or at instance of Board – Proceeding, initiated under Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 by plaintiff-respondent is not justified and legally valid. (Paras 34, 35 and 39)
Bihar State Housing Board Act, 1982 – Sections 58 and 59 – Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 – Sections 11 (1) (f) and 32 – Civil Procedure Code, 1908 – Section 9 – Eviction of tenant – Civil Court has no jurisdiction to try suit under BBC Act, 1982 with regard to property belonging to Bihar State Housing Board – Application of provision of Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982, is excluded by statutory provision and suit is not maintainable as special statutory provision has been prescribed under Bihar State Housing Board Act, 1982 for eviction of a person in occupation of property of Housing Board – Any person subletting without written permission of Board can also be vacated, under the Act – Impugned judgment and decree set aside and Plaintiff given liberty to file complaint before competent authority under Bihar State Housing Board Act, 1982 – Appeal allowed. (Paras 40, 42, 43, 44 and 45)
Khatim Reza, J.—Heard Mr. Jitendra Kishore Verma, learned counsel for the appellant and Mr. Surendra Kishore Thakur, learned counsel for the respondent.
2. This Second Appeal has been filed by the defendant-appellant-appellant challenging the judgment and decree of affirmance dated 16.09.2022 passed by the learned Additional Judge XVI, Patna in Title Appeal No. 65 of 2015 affirming the judgment and decree dated 26.06.2015 passed by the learned Court of Munsif III, Patna in Title Suit No. 36 of 2011 whereby, the suit was decreed.
3. The matter arises out of Eviction Suit No. 36 of 2011, which was filed by the plaintiff/respondent for eviction of the defendant from the suit premises for bonafide requirement to comply the terms and conditions of the Hire Purchase Agreement between the Plaintiff/Respondent and Bihar State Housing Board (in short ‘Board’) as the Plaintiff/Respondent has constructed three commercial shops unauthorisedly so, the Final Conveyance Deed was not being executed in favour of the Plaintiff by the Bihar State Housing Board due to non demolition of the unauthorized shops by the plaintiffs.
4. The learned Trial Court decreed the suit. The defendant/appellant preferred Title Appeal No. 65 of 2015. The said Title Appeal was dismissed by the lower appellate court affirming the judgment of trial court.
5. Being aggrieved by the judgment and decree dated 26.06.2015 passed in Title Appeal No. 65 of 2015, this Second Appeal has been filed by the defendant/appellant.
6. On 14.02.2023, the following substantial questions of law were framed while admitting the appeal:—
i. Whether the notice (Ext. 2/B) to demolish the tenanted premises does not stand waived in view of the conduct of the Bihar State Housing Board to register the final deed of Conveyance/lease (Ext. B) during pendency of the suit?
ii. Whether lease deed registered on 29.05.2013 wherein Clause 7 mentioned commercial cum residential which vitiate the Section 11(f) on the point of registration of lease deed?
iii. Whether the present suit for eviction under BBC Act was maintainable and not barred in view of Section 58 of Bihar State Housing Board which aspect was not considered by either of the Court below?
iv. Whether in view of clause 8 and 16 of the registered deed of conveyance/lease dated 29.05.2013 (Ext. B) does the alleged cause of action for the suit survives and have the courts below not acted perversely in still decreeing the suit?
7. In order to determine the matter in its correct perspective, it is necessary to briefly re-state the case of the plaintiff.
8. The plaintiff filed the Title Suit No. 36 of 2011 for the following reliefs:—
a. The decree of eviction be passed in favour of the plaintiff and against the defendant with respect to the shop in question as detailed in Schedule-‘B’ of the plaint.
b. The defendant be directed to vacate the shop in question as detailed in Schedule-‘B’ of the plaint within the time as fixed by this court failing which the same be vacated through the process of court.
c. Any other relief or reliefs which the plaintiff is deemed entitled to in the estimation of the court be awarded to the plaintiff.
d. The cost of the suit be awarded to the plaintiff.
9. It is pleaded that the plaintiff has purchased the Schedule-A property from the Bihar State Housing Board for constructing his residential house under Hire Purchase Agreement dated 09.02.1976 duly executed and registered by the Board.
10. It is contended that the plaintiff has constructed his residential house over Schedule A land and also constructed three shops in front of northern boundary of his residential house. One shop of suit (Schedule B), out of the three shops was let out to the defendant for running his business of Kirana goods in the name and style of M/s. Laxmi Kirana. On 01.09.1994, the same shop was let out to the defendant on monthly rent of Rs. 1000/-, to be paid by the 10th of every succeeding month for which the rent is due which was enhanced from time to time and
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