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High Court Of Madhya Pradesh
J. S. VERMA, K. K. ADHIKARI
B.JOHNSON - Appellant
Versus
C.S.NAIDU - Respondents
MISC. CIV. CASE 409 Of 1984
Decided On : 08/09/1985
(2) Constitution of India-Art. 14-reasonable classification-what is.
It was contended that section 23-J of the Act specifies categories of landlords, who alone are entitled to the benefit of Chapter III-A. These categories are retired servants of the Government or Defence Services; retired servants of the Government owned or controlled companies; widow or a divorced wife; physically handicapped person; or a servant of any Government or Defence Services, who is not entitled by his service condition to Government accommodation, on his posting to a place where he owns a house or is entitled to Government accommodation only on payment of penal rent. Hence this classification violates Article 14 of the Constitution.
Held: These landlords specified in 23-J belong to a special category distinct from the remaining landlords, who deserve the benefit of the special procedure oh account of their need being more pressing and the handicap from which they suffer as compared to the remaining landlords, the object of the amendment being to provide for expeditious trial of eviction cases on the ground of bona fide requirement of the landlord. Confining this benefit only to these categories of the landlords specified in section 23 -J, on account of the greater handicap from which they suffer as compared to other landlords, after taking into account the misuse of the special procedure by certain landlords not failing in these categories, indicates a rersonable nexus of the classification with the object sought to be achieved by the legislature. The challenge to constitutional validity of sections 23-J and 11-A is rejected. AIR 1984 SC 967 & AIR 1980 SC 161 followed. [Paras 13 & 14]
(3) Accommodation Control Act, 1961 (M. P.)-Ss 12 & 23-C (2)-object of the Act-section 23-C is not invalid.
The Act is a piece of social legislation, meant mainly to protect the tenant from frivolous eviction and at the same time to do justice to the landlords by making provisions which put only a reasonable restriction on their right to evict the tenant under the general law, without destroying their legal right to property as its owner. In other words, the rent control legislation attempts the balancing trick of protecting the tenant from frivolous eviction, while ensuring that only such restrictions are placed on the landlord's right to evict, which are sufficient to protect the tenant from frivolous eviction, without destroying the landlord's legal right to property as its owner. AIR 1980 SC 161 followed. [Para 16]
It is, therefore, clear that if the tenant's application for leave to contest is supported by an affidavit of the tenant disclosing facts disentitling the landlord to grant of the relief of recovery of possession, then leave to defend has to be given to the tenant. The words 'if necessary' are followed by these guidelines which indicate the situation in which leave is to be granted and, therefore, the discretion of the Rent Controlling Authority is not unbridled or uncanalised. It is required to be exercised judicially in the manner indicated. The provision clearly means that where the tenant's application, supported by an affidavit, 'disclosing such facts as would disentitle the landlord from obtaining an order for recovery of possession of the accommodation on the ground specified in' section 23-A' is filed, then it is necessary for the Rent Controlling Authority to grant leave to the tenant to contest the landlord's application. There is thus no such invalidity in sub section (2) of section 23-C. [Para 19]
(4) Accommodation Control Act, 1961 (M. P.)-S, 23-D (3)-rebuttable presumption ill favour of the landlord-is not violative of Article 14, Constitution of India.
The crux of the matter is, whether a provision like this, shifting the onus to the tenant by raising a rebuttable presumption in favour of the landlord, results in making the procedure so onerous or harsh as to amount to discrimination. [Para 20]
Such a rebuttable presumption in favour of the landlord arises only where the landlord has set out a prima facie case entitling him to the relief of eviction and the tenant has been given leave to defend, on his setting out in an affidavit facts which, if found proved, would disentitle the landlord to the relief claimed by him. This provision only lays down that at this stage the onus is on the tenant to prove the facts on the basis of which he has been granted leave to defend, the scheme being that on as prima facie case for eviction of the tenant being made out in the landlord's application, he should be granted the relief, unless the tenant first satisfies that there is basis for him to contest the landlord's claim and he then proceeds to prove his assertion.
The provision is not invalid as it gives opportunity to the tenant to rebut the presumption. AIR 1960 SC 548 & AIR 1957 SC 877 relied on. [Paras 20 & 21]
(5) Accommodation Control Act, 1961 (M. P.)-S. 23-E-power of revision-provides sufficient protection to the tenant against frivolous claim of the landlord. AIR 1985 SC 613 referred to.
(6) Revision-powers of revisional Court-phrase 'to satisfy itself'-import of-the power is essentially of superintendence. [Para 23]
The dominent idea conveyed by the incorporation of the words 'to satisfy itself' appears to be that the power conferred is essentially a power of superintendence. Quite obviously the revisional authority should not interfere with the findings of fact merely because it does not agree with the finding of the subordinate authority. The power is not wide enough to make the revisional authority a second court of first appeal.
Merely to hold that a question is a mixed question of fact and law is not sufficient to warrant the exercise of revisional power. It must, however, be shown that there was a taint of such unreasonableness resulting in a miscarriage of justice. (1980) 2 SCC 259 and (1975) 2 SCC 246 relied on. [Para 25]
(7) Accommodation Control Act, 1961 (M.P.)-S. 23-E (2)-interpretation of-power of revision.
The first-part of sub-section (2) of section 23-E has to be construed as conferring a power of revision wider than given by section 115 CPC but narrower than the power of appeal which permits interference where there was a taint of such unreasonableness resulting in a miscarriage of justice.
The only manner in which the other part of sub-section (2) can be given a meaning and it can also be reconciled with subsection (1). which expressly provides that no appeal lies, is to construe sub-section (2) as providing for the power of revision to correct any defect in the order of the Rent Controlling Authority, which taints it with such unreasonableness that it results in miscarriage of justice, and this has to be done keeping within the limits prescribed by section 115 CPC 'as far as may be'. In other words, the power of revision is not restricted to the narrow limits of section 115 CPC but it is not as wide as that of an appeal and the indication is that an attempt should be made to keep as near as possible to the limits of the power of revision under section 115 CPC, exceeding the same only to the extent necessary for preventing miscarriage of justice. Use of the expressions 'save as otherwise provided by this section' and 'as far as may be' to connect the two parts of sub-section (2), supports this conclusion. [Para 26]
(8) Accommodation Control Act, 1961 (M.P.)-S. 23-F-stay order-Starting point of period of six months-hardship to a tenant how to be avoided-object of the legislature-the provision is valid.
Section 23 F prescribes the time limit of six months for operation of the stay order and the same stands automatically vacated by efflux of time on expiry of six months from the date of the stay order. However, a fresh stay order can be passed in suitable case, which would operate for the same time limit, as there is no prohibition against a fresh stay order being made on the expiry of the earlier stay order by efflux of time. There is thus no basis to challenge the validity of this provision. [Para 31]
(9) Revision-power of the revisional Court to grant stay.
The power to grant stay when a strong prima facie case is made out and without it the power of revision will become ineffective, is incidental of ancillary to the express grant of statutory power or revision, being available even without an express grant. AIR 1969 SC 430 relied on. [Para 30]
(10) Accommodation Control Act, 1961 (M. P.)-S. 23 J-proceedings allowed before both, the Rent Controlling Authority and the civil Court - there is only one forum for each ground of each category of landlord-the prods ion is not unconstitutional. [Para 32]
(11) Constitution of India-Arts. 50 and 14 -forum manned by Executive Officer instead of a Judicial Officer-is nor unconstitutional.
It is also difficult to appreciate how the provision for an application for eviction before the Rent Controlling Authority, who is on executive officer, offends Article 50 of the Constitution, which requires the State to take steps for separation of judiciary from the executive. It is setteled that merely because the other forum is manned by an executive officer, instead of a judicial officer, if cannot be said that it results in violation of Article 14. It is also settled that mere availability of two procedures, one under the ordinary law and the other under impugned provisions, does not by itself attract the vice of discrimination, unless one of them is so harsh or onerous as to suggest that a discrimination would result, if resort is made to it, instead of the ordinary remedy under the general law, 1984 JLJ 76 relied on. [Para 33]
(12) Accommodation Control (Amendment) Act, 1983 (M.P.)-S. 12-the provision is valid.
Pending suits based on the ground of bonafide requirement of the landlord for residential or non-residential purpose would continue to be heard and disposed of by Civil Court, unless such relief was withdrawn by the landlord, with a view to initiate proceeding under the new provision before the Rent Controlling Authority. It is difficult to appreciate the tenant's grievance against this provision. It merely enables the landlord to continue a pending suit in the Civil Court on the ground of bona fide requirement instead of withdrawing that relief to be claimed before the Rent Controlling Authority in accordance with the new Chapter III-A. Section 12 of the Amendment Act, therefore, gave liberty to the landlord to this extent since the tenant would not feel aggrieved by the landlord continuing tile suit in Civil Court instead of preferring the new forum. AIR 1980 SC 161 relied on. 1984 MPRCJ 184 & 1984 JLJ 690 overruled. [Paras 35 & 38]
( 1 ) THE main question for decision in this case is the constitutional validity of the amendments made in the M. P. Accommodation Control Act, 1961, by the two amending Acts, namely, M. P. Accommodation Control (Amendment) Act, 1983 (M. P. Act No. 27 of 1983) and the M. P. Accommodation Control (Amendment) Act, 1985, (M. P. Act No. 7 of 1985 ). The M. P. Act No. 7 of 1985 replaces the M. P. Accommodation Control (Amendment) Ordinance, 1985 (No. 1 of 1985) and therefore, reference to the Ordinance is now not necessary.
( 2 ) THE petitioner is a tenant of the respondent and proceeding was commenced by the respondent for eviction of the petitioner before the Rent Controlling Authority on the ground of respondent's bona fide need, which is governed by section 23 - A of the amended Act. The petitioner filed an application under section 113, C. P. C. before the Rent Controlling Authority for a reference to be made to this Court for deciding the constitutional validity of the amended provisions, but the same having been rejected, this petition under Article 228 of the Constitution has been filed for the same purpose. This is how the question of vires of the aforesaid Amendment Acts arises for decision in this case.
( 3 ) IN the M. P. Accommodation Control Act, 1961. (hereinafter called the 'principal Act'), several clauses in sub-section (1) of section 12, contain the grounds on which a tenant may be evicted. Clauses (e) and (f) therein contain grounds for eviction of the tenant on the basis of bona fide requirement of accommodation for residential or non-residential purposes respectively. A suit for eviction is required to be filed in the civil Court on one or more of these grounds permitting eviction. The purpose of enacting the M. P. Accommodation Control (Amendment) Act, 1983 (hereinafter called the 1983 Amendment Act') is primarily to provide for the expeditious trial of eviction cases on ground of bona fide requirement of the landlord and for matters connected therewith or incidental thereto. The effect of this amendment substantially was to omit clauses (e) and (f) from sub-section (1) of section 12 of the Principal Act as well as sub-sections (4), (5) and (6) therein; to amend section 13; to omit sections 17,20-A and 20aa; and to insert a new Chapter III-A in the Principal Act in order to provide for eviction of tenants on grounds of bona fide requirement, containing sections 23- A to 23-I. A new section 35 was substituted to give powers of the civil Court to the Rent Controlling Authority for execution of an order made under Chapter III-A; and section 43 was amended by substitution of sub-section (4) therein to provide for penalty for re-letting or transfer of any part of the accommodation in contravention of sub-section (3) or (4) of section 23-C. Section 12 of the Amendment Act provided for the pending suits and proceedings in the civil Courts. The net result of the amendments made by the 1983 Amendment Act was that the grounds of bona fide requirement of the landlord, which were earlier contained in clauses (e) and (f) of sub-section (1) of section 12 of the principal Act, were now in section 23-A and proceedings for eviction of tenants on these grounds were to lie before the Rent Controlling Authority, governed by the special procedure enacted in the newly added Chapter III-A; and the pending suits and proceedings were to be governed by section 12 of the Amendment Act.
( 4 ) SOME time after these amendments, it was felt that proceedings for eviction of the tenants on the grounds of bona fide requirement of landlords need not go before the Rent Controlling Authority to be disposed of in accordance with the special procedure in case of all categories of landlords and that this special procedure governing the proceedings before the Rent Controlling Authority should be available only to certain specified categories of landlords. Accordingly, the principal Act was further amended by the M. P. Accommodation Co
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