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2003(2) JLJ 260
S.P. Khare, J.
Girish Kumar Shrivastava v. Punjab National Bank, Satna
Civil Revision No. 1150 of 1997; against the order of Rent
Controlling Authority, Satna, passed in eviction Case
No. 3A/90/95-96; Decided on 27.11.2002.
The applicant‘s case is that he comes in the category of the "landlord" defined in section 23-J of the Act as he is a "retired servant of the Government". He has pleaded that he bona fide requires the suit accommodation for starting the business of a restaurant. [Para 3
The non-applicant‘s case is that the applicant being the co-owner of the house cannot alone seek to evict the tenant as there is no consent of the other co-owners and they are not covered by the category of "landlords" given in section 23-J of the Act. [Para 4
Held: A co-owner can initiate eviction proceedings against the tenant in the absence of other co-owners if they do not object for the same. A co-owner owns every part of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner of the property. A co-owner is as much as‘ owner of the entire property as any sole owner and the absence of other co-owners will not disentitle a co-owner from maintaining an action for eviction when the other co-owners do not object to the same. 1990 JLJ 97 (FB) relied on. AIR 1976 SC 2335 and AIR 1977 SC 1599 followed. [Para 7
(2) Accommodation Control Act, 1961 (M.P.) -- Ss. 23-J and 23-A (b) --landlord of category defined under S. 23-J -- can maintain eviction proceeding only before Rent Controlling Authority.
Where a claim for eviction is filed by a landlord or a co-landlord, belonging to anyone of the five categories defined in section 23-J of the Act, as the sole applicant without objection by other co-landlords who have not joined as co-applicants and the nature of claim for eviction is covered by section 23-A (b) of the Act, the proceedings would lie only before the Rent Controlling Authority. 2003 JLJ 85 (SC) followed. [Para 7
(3) Accommodation Control Act, 1961 (M.P.) -- Ss. 23-A (b) and 23-D -- other accommodation in possession of other tenant and his son -- choice of landlord cannot be questioned.
It is not disputed that the other shops are in the occupation of the tenants or in the occupation of the applicant‘s son for running a PCO. It is the choice of the applicant from which tenant he should get the accommodation vacated to fulfil his need. 2000(1) JLJ 186 (SC) followed. [Para 10
(4) Accommodation Control Act, 1961 (M.P.) -- S. 23-E -- order of Rent Controlling Authority perverse, unreasonable and contrary to law -- interference in revision is permissible. 2000(1) MPLJ 540 relied on. [Para 10
¼1½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-ç-½&/kkjk 23&d¼[k½ rFkk 23&´ ≶&Lokeh&csn[kyh dh dk;Zokgh çkjaHk djok ldrk gS ;fn vU; lg&Lokfeksa }kjk vk{ksi ugha fd;k x;k gks&^lg&Lokeh laiw.kZ laifÙk dk Lokeh gSA vkosnd dk i{kdFku gS fd og vf/kfu;e dh /kkjk 23&´ esa ifjHkkf"kr ^^Hkw&Lokeh** dh dksfV esa vkrk gS D;ksafd og ^^ljdkj dk lsokfuo`Ùk deZpkjh gS**A mlus vfHkokd~ fd;k gS fd Hkkstuky; dk dkjckj çkjaHk djus ds fy, mls okn LFkku dh okLrfod vko‘;drk gSA ¿iSjk 3 vukosnd dk i{kdFku gS fd vkosnd edku dk lg&Lokeh gksrs gq, vdsyk vfHk/kkjh dks csn[ky djus dh bZIlk ugha dj ldrk D;ksafd vU; lg&Lokfeksa dh lgefr ugha gS rFkk os vf/kfu;e dh /kkjk 23&´ esa nh xbZ ^^Hkw&Lokeh** dh dksfV esa ugha vkrsA ¿iSjk 4 vfHkfu/kkZfjr % lg&Lokeh vU; lg&Lokfeksa dh vuqifLFkfr esa vfHk/kkjh ds fo#) csn[kyh dh dk;Zokgh çkjaHk dj ldrk gS ;fn os mlds fo#) vk{ksi ugha djrsA lg&Lokeh vU; ds lkFk lkewfgd laifÙk ds çR;sd Hkkx dk Lokeh gS rFkk ;g ugha dgk tk ldrk fd og ,d ek= Hkkxr% Lokeh gS vFkok laifÙk dk vkaf‘kd Lokeh gSA lg&Lokeh laiw.kZ laifÙk dk mruk gh Lokeh gS ftruk fd dksbZ vU; ,dek= Lokeh rFkk vU; lg&Lokfeksa dh vuqifLFkfr ls lg&Lokeh csn[kyh dh dkjZokbZ ykus ls oafpr ugha gksxk tc mlds fy, vU; lg&Lokfeksa us vk{ksi ugha fd;k gSA 1990 ts ,y ts 97 ¼iw.kZ U;k;ihB½ voyafcrA , vkb vkj 1976 ,l lh 2335 rFkk , vkb vkj 1977 ,l lh 1599 vuqlfjrA ¿iSjk 7 ¼2½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-ç-½&/kkjk 23&´ rFkk 23&d ¼[k½&/kkjk 23&´ esa ifjHkkf"kr dksfV dk Hkw&Lokeh&dsoy HkkM+k fu;a=d çkf/kdkjh ds le{k csn[kyh dh dk;Zokgh yk ldrk gSA tgk¡ csn[kyh dk nkok fdlh Hkw&Lokeh] vFkok vf/kfu;e dh /kkjk 23&´ esa ifjHkkf"kr ik¡p esa ls fdlh Hkh ,d dksfV esa vkus okys lg&Lokeh gksrs gq,] vU; lg&Lokfeksa }kjk fcuk vk{ksi ds tks lg&Lokfeksa ds :i esa tksM+s ugha x, gSa] Qkby fd;k x;k gS rFkk csn[kyh ds nkos dh çÑfr vf/kfu;e dh /kkjk 23&d ¼[k½ }kjk vkPNkfnr gS] dk;Zokgh dsoy HkkM+k fu;a=d çkf/kdkjh ds le{k gksaxhA 2003 ts ,y ts 85 ¼mPpre U;k-½ vuqlfjrA ¿iSjk 7 ¼3½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-ç-½&/kkjk 23&d ¼[k½ rFkk 23&?k&vU LFkku vU; vfHk/kkjh rFkk mlds iq= ds dCts esa&Hkw&Lokeh dh ilan ç‘uxr ugha dh tk ldrhA ;g fookfnr ugha gS fd vU; nqdkusa vfHk/kkfj;ksa ds vf/kHkksx esa gSa vFkok ih lh vks pykus ds fy, vkosnd ds iq= ds vf/kHkksx esa gSaA ;g vkosnd dh ilan ij gS fd viuh vko‘;drk iwjh djus ds fy, og fdl vfHk/kkjh ls LFkku [kkyh djk,A 2000¼1½ ts ,y ts 186 ¼mPpre U;k-½ vuqlfjrA ¿iSjk 10 ¼4½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-ç-½&/kkjk 23&M-&HkkM+k fu;a=d çkf/kdkjh dk vkns‘k foi;ZLr] v;qfDr;qDr rFkk fof/k ds fo#)&iqujh{k.k esa gLr{ksi vuqKs; gSA 2000¼1½ ,e ih ,y ts 540 voyafcrA ¿iSjk 10
1. This is a revision by the applicant under section 23-E of the M.P. Accommodation Control Act, 1961 (hereinafter to be referred to as the Act) against the order by which his application under section 23-A (b) of the Act for eviction of the tenant has been rejected.
2. It is not in dispute that the New Bank of India had taken on lease a portion of the house No. 780/661, Ward No. 16, Lalta Chowk, Satna by the lease-agreement dated 26.4.1981 from applicant Girish Kumar Srivastava and his three brothers for banking business at a monthly rent of Rs. 1802.50 paise for a period of five years. The area of the house which was the subject matter of lease is 1442 Sq. ft. and is shown in red colour in the map annexed to the application. There has been no partition amongst the applicant and his brothers. He is Karla of the joint Hindu family. The New Bank of India has been amalgamated in the Punjab National Bank and this Bank is now the tenant in the suit accommodation. The applicant was in State Government service and has retired from the post of District Registrar, Damoh on 28.2.1994.
3. The applicant's case is that he comes in the category of the "landlord" defined in section 23-J of the Act as he is a "retired servant of the Government". He has pleaded that he bona fide requires the suit accommodation for starting the business of a restaurant and he has the capital for that purpose. He has stated that he is in sound health to run this business. He has no other reasonably suitable non-residential accommodation of his own in his occupation for this purpose in the city of Satna. There are two other houses in his name and in the name of his brothers which are being used for residence. The portions in the house in which the suit accommodation is situated are either in the occupation of other tenants or the applicant's son is doing business therein.
4. The non-applicant's case is that the applicant being the co-owner of the house cannot alone seek to evict the tenant as there is no consent of the other co-owners and they are not covered by the category of "landlords" given in section 23J of the Act. It is denied that the plaintiff requires the suit accommodation for running restaurant business. It is said that it is a mere pretence to get the suit accommodation vacated.
5. The Rent Controlling Authority by the impugned order has held that a co-owner cannot get the suit accommodation vacated as the consent of two other co-owners has not been proved and the applicant's alleged requirement is not bona fide as he could get other tenants evicted to fulfil his need or he could use his residential house for that purpose.
6. The points which arise for determination are (a) whether the applicant as co-owner of the suit accommodation can get the non-applicant evicted and (b) whether the applicant bona fide requires the suit accommodation for carrying on restaurant business and he has no other reasonably suitable non-residential accommodation of his own in his occupation for this purpose.
7. Point (a)
The impugned order of the Rent Controlling Authority shows that the Full Bench decision of this Court in Harbans v. Smt. Margret 1990 JLJ 97 = 1990 MPLJ 112 was cited before it but it has not been followed. It has been held in this decision that a co-owner can initiate eviction proceedings against the tenant in the absence of other co-owners if they do not object for the same. The Supreme Court has made it clear in several decisions that a co-owner owns every part of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner of the property. A co-owner is as much as owner of the entire property as any sole owner and the absence of other co-owners will not disentitle a co-owner from maintaining an action for eviction when the other co-owners do not object to the same. Sri Ram Pasricha v. Jagannath AIR 1976 SC 2335 and Kanta Goel v. B.P. Pathak AIR 1977 SC 1599. This legal position has been made
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