Rambharose vs Shashi Sharma - 1985 Supreme(MP) 624

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Petitioner: B.G. Apte
For the Respondents: V.K. Bharadwaj

Headnote:(1) Accommodation Control Act, 1961 – S. 23 – A, 23 – C and 23 – J – Accommodation Control (Amendment) Ordinance, 1985 (M.P.) – Cl. 10 – application under S. 23 – A seeking eviction under S. 23 – J – tenant contesting application to the benefits of S. 23 – J – Authority has to decide jurisdictional fact in accordance with clause 10 of the Ordinance.
       (2) Accommodation Control Act, 1961, (M.P.) – S. 23 – D (3) – Accommodation Control (Amendment) Ordinance, 1985 – Cl. 10 – legal presumption under S. 23 D (3) – operative only after decision in terms of Cl. 10 of the Ordinance is rendered.
       (3) Accommodation Control Act, 1961 (M.P.) – S. 23 – D (3) and 23 – J – presumption under S. 23 – D (3) – limited to bona – fide or otherwise of requirement – it does not extend to any validity of claim under S. 23 – J.
        Short Note
       1. An extension of the question which was raised and decided in Krishan Singh (Civil Revision No. 161/85. decided on 13 – 11 – 1985), has come up for consideration of this Court to day.
       Held : Shri Apte is vocal and submits forcefully that the impugned order rendered on 9 – 9 – 1985 by the Rent Controlling Authority, for short, 'the Authority', is wholly without jurisdiction inasmuch as what has been held must shock legal – conscience of all right – thinking men. How, submits Shri Apte, burden of proof could be shifted to the tenant – defendant ? However, a part of the answer to the question was given in Krishan Singh (supra) and for the other part, I find the answer today in sub – section (3) of section 23 – D of the Madhya Pradesh Accommodation Control Act, 1961, for short, 'the Act'. The admitted position on facts in this case is, when the physically handicapped landlord filed an application under section 23 – A of the Act for the tenant's eviction, she stated the very fact of her physical incapacity and brought her case within the purview of the newly enacted section 23 – J. The application was opposed and the tenant filed under section 23 – C an application for leave to defend the proceedings and evidently, issue of eviction. This, she, did purporting to act under sub – section (3) aforesaid.
       2. The legal presumption contemplated in the aforesaid provision, according to me, is meant to be operative only after a judicial decision is rendered in terms of Clause 10 of the Ordinance. In my opinion, this is made very clear in the language used in the sub – section itself, which explicitly limits the scope of the presumption to the question of "bona fide" or otherwise of the requirement, and it does not create any presumption of the validity of the claim made by the landlord under section 23 – J. Indeed, that question had to decided first and earlier; first at the point of time, when the decision is rendered on the jurisdictional competence, which, as held in Krishan Singh (supra), had to be done judicially by rendering a judicial order on the question considering rival claims of the parties. Accordingly, I am of the view that stage was not ripe for rendering the impugned order despite the fact that a written statement had been filed. There can be no question of want of jurisdiction being made up by party's concession and accordingly, by merely filing the written statement, the defendant does not stand deprived of the right contemplated under clause 10 of the Ordinance. Rebuttal evidence by tenant contemplated under section 23 – D (3) can only be on the "bona fide" nature of landlord's requirement, not on his/her entitlement to prosecute the case before the authority for decision in his application, the tenant contested landlord's claim to the benefit of section 23 – J. Naturally, the Authority had to decide then whether it had jurisdiction to retain for trial landlord's application made under section 23 – A because of the bar enacted in Clause 10 of the Madhya Pradesh Accommodation Control (Amendment) Ordinance, 1985, for short, 'the Ordinance'. I have taken the view in Krishan Singh (supra) that section 23 – J was an independent provision and the landlord who sought benefit thereof to invoke the jurisdiction of the Authority, had to make out his case and a duty devolved on the Authority to decide the question of jurisdiction to fulfil the mandate of Clause 10.
       3. The first question, therefore, to be decided in this Case is whether there was a judicial order passed by the Authority determining the jurisdictional competence as envisaged in Krishan Singh (supra). Shri Bhardwaj, appearing for the landlord, could not satisfy me that such an order was indeed passed and what he submits is that mere retention for trial of the application should be accepted as indicative of the fact that the question of jurisdiction was duly decided. This contention, I find difficult to accept in view of what has been held in Krishan Singh (supra).
       4. However, the matter does not end there. The question further is not only about the scope of enquiry under Clause 10 of the Ordinance aforementioned, but in the context of sub – section (3) of section 23 – D vice versa. Because, by the impugned order, the Authority after having noted that written statement had been filed by the tenant, fixed a date for evidence to be adduced by him to decide on the issue of eviction. The question of entitlement relates to jurisdictional competence of the Authority and decision thereon must be rendered earlier before hearing the matter on merit and deciding the issue of eviction. Indeed, section 23 – D prescribes "summary procedure" for determination of the issue of eviction and its scope, therefore, cannot, and must not, be pushed back to embrace the earlier stage of the proceeding.
       5. For the foregoing reasons, I have no hesitation to hold that the impugned order is without jurisdiction and to quash the same. I direct that the question of jurisdictional competence shall be decided first as laid down by this Court in Krishan Singh (supra) and thereafter, the progress of the proceeding shall ensue in the manner prescribed by the Act. C.R. 161 of 1985; decided on 13 – 11 – 1985 relied on. Revision allowed.