Rajasthan High Court - Jaipur
Gopal Sharan Rastogi vs Appellate Rent Trubunal &Ors; on 10 July, 2017
Author: Alok Sharma
Bench: Alok Sharma
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No.13197/2009
Gopal Sharan Rastogi s/o Late Shri Kundan Lal Rastogi, aged 69
years, Mahajan by caste, R/o Rastogi Gali, Lal Bazar, Kothi
Dholpur through Special Power of Attorney Holder Parag Rastogi,
S/o late Shri Jagdish Sharan Rastogi, R/o Plot No. 41, Vikas Nagar,
Lane No.3, Hawa Sadak, Jaipur
----Applicant/Petitioner
Versus
1. Appellate Rent Tribunal, Dholpur
2. Rent Tribunal, Dholpur
3. Bijendra Shrivastava S/o late Shri Kahnahiya Lal Shrivastava
Kayasth, by caste R/o Rastogi Gali, Lal Bazar, Kothi, Dholpur
and Mohalla Ashok Vihar, (Patiala Bag Gurudwara), Dholpur
4. Ambrish Shrivastava S/o Late Shri Kanhaiya Lal Shrivastava
Kayasth, by caste, R/o Rastogi Gali, Lal Bazar, Kothi, Dholpur
and Mohalla Ashok Vihar, (Patiala Bag Gurudwara), Dholpur
5. Neeraj Shrivastava S/o late Shri Kanhaiya Lal Shrivastava
Kayasth, by caste, R/o Rastogi Gali, Lal Bazar, Kothi, Dholpur
and Mohalla Ashok Vihar, (Patiala Bag Gurudwara), Dholpur
6. Sanjay Shrivastava S/o late Shri Kanhaiya Lal Shrivastava
Kayasth by caste, R/o Rastogi Gali, Lal Bazar, Kothi, Dholpur
and Mohalla Ashok Vihar, (Patiala Bag Gurudwara), Dholpur.
7. Manoj Shrivastava S/o Late Shri Kanhaiya Lal Shrivastava
Kayasth by caste, R/o Rastogi Gali, Lal Bazar, Kothi, Dholpur
and Mohalla Ashok Vihar, (Patiala Bag Gurudwara), Dholpur.
(Expired on 23.2.2010) through his legal representatives:
(7/1) Smt. Minakshi Shrivastava W/o Late Shri Manoj Shrivastava,
R/o House of Late Shri Kanhaiya Lal Shrivastava, behind
Government Higher Secondary School, Post and Tehsil
Basedi, District Dholpur
(2 of 7)
[CW-13197/2009]
(8) Smt. Urmila Shrivastava W/o late Shri Kanhaiya Lal
Shrivastava Kayasth by caste, R/o Rastogi Gali, Lal Bazar,
Kothi, Dholpur and Mohalla Ashok Vihar (Patiala Bag
Gurudwara), Dholpur (Expired on 7.10.2010)
----Respondents
_____________________________________________________ For Petitioner(s) : Mr. Parag Rastogi For Respondent(s) : Mr. Raj Kamal Gaur _____________________________________________________ HON'BLE MR. JUSTICE ALOK SHARMA Order 10/07/2017 Under challenge is the judgment dated 28.7.2009 passed by the Rent Appellate Tribunal, Dholpur, setting-aside the judgment and certificate of possession dated 28.11.2008 passed by the Rent Tribunal, Dholpur and dismissing the petitioner- landlord's (hereinafter 'the landlord') eviction petition.
The facts of the case are that on 13.4.2004 original application was filed on behalf of the landlord before the Rent Tribunal, Dholpur seeking eviction of the non applicants-tenants nos. 3 to 8 (hereinafter 'the tenants') for eviction from the tenanted premises, as detailed in para 3 of the application, situated at Rastogi Gali, Lal Bazar, Kothi, Dholpur on the ground of personal and bonafide necessity as also the respondent-tenant (hereinafter 'the tenant') having acquired alternative accommodation adequate for his use.
Reply to the eviction petition was filed by some of the LR's of the erstwhile tenant. Proceedings against the remainder were taken ex-parte under the Rent Tribunal's order dated (3 of 7) [CW-13197/2009] 1.6.2006.
On 15.7.2006, the landlord moved an application U/s. 15 of the Rajasthan Rent Control Act, 2001 (hereinafter 'the Act of 2001') seeking amendment of the original application by bringing on record the fact that he had attained 65 years of age and being a senior citizen within the meaning of Section 2 (h) was entitled to the benefit of Section 10 of the Act of 2001. The amendment was allowed and the question of the right of the landlord under Section 10 of the Act of 2001 was incorporated in the eviction petition. Reply to the amended petition was also filed by the tenant.
Vide judgment dated 28.11.2008, the landlord's eviction petition was allowed by the Rent Tribunal and the certificate of possession was issued in favour of landlord while the tenant was directed to vacate the tenanted premises. An appeal was filed against the judgment and certificate of possession dated 28.11.2008 before the Rent Appellate Tribunal, Dholpur (hereinafter 'Appellate Rent Tribunal'). The said appeal has been allowed vide the impugned judgment dated 28.7.2009 and the original application filed by the landlord dismissed holding that no matter the landlord was a senior citizen as agitated by him in the petition yet he could not entitled to invoke Section 10 of the Act of 2001 benefit on that count alone and for the tenant's eviction it was additionally required for the landlord to make out a ground for eviction under Section 9 of the Act of 2001 which the landlord was unable to on his evidence on record in respect of the tenant having acquired an alternative accommodation adequate for his need. It was also held that in the event the landlord had (4 of 7) [CW-13197/2009] failed to make out a case of bonafide and reasonable necessity before the Rent Tribunal which could not be impugned by way of cross-objections as was sought to be done by the landlord before the Appellate Rent Tribunal.
Hence, this petition.
Counsel for the petitioner has submitted that no ground under Section 9 of the eviction petition was required to be proved where the eviction petition as amended, inter-alia, was also laid under Section 10 of the Act of 2001. He submitted that Section 10 of the Act of 2001 overrides Section 9 and where a person attained the age of 65 years and had filed the eviction petition 3 years after the letting out he was entitled to immediate possession of the tenanted premises without anything more. This he submitted because Section 10 of the Act of 2001 is a stand alone overriding provision with a non-obstante clause.
Counsel submitted that Appellate Rent Tribunal has thus erred in holding that despite a ground under Section 10 of the Act of 2001 being made out, it was incumbent upon the landlord also to prove any of the grounds under Section 9 of the Act of 2001 to be entitled for the tenant's eviction. Counsel submitted that in view of the factum of the landlord admittedly being a senior citizen and filing the eviction petition 3 years subsequent of the tenanted premises being let out, the Appellant Tribunal could not have interfered with the judgment of the Rent Tribunal directing the tenant's eviction.
Per contra, Mr. R.K. Gaur, counsel appearing for the respondent-tenant submitted that the application filed by the (5 of 7) [CW-13197/2009] landlord in the first instance was under Section 9 of the Act of 2001. No doubt, subsequently a ground with reference to Section 10 of the Act of 2001 was also incorporated therein by way of an amendment. Counsel submitted that consequently the eviction petition was rendered a composite application, in which both the grounds under Section 9 and Section 10 of the Act of 2001 were to be proved. He submitted that the Appellate Rent Tribunal has found subsequent to the Rent Tribunal finding that the ground for eviction for reason of bonafide and reasonable necessity was not made out, that from the evidence on record the ground of the tenant having acquired an alternative accommodation adequate for his use/ need was also not proved. Hence the Rent Tribunal's judgment dated 28.11.2008 was rightly set aside.
Heard. Considered.
Sadly, counsel for the landlord before the Rent Tribunal has conducted the case with carelessness. Surprisingly, that was not noticed either by counsel for the tenant or indeed by the Rent Tribunal. Under the Act of 2001, proceedings for eviction under Section 9 are wholly distinct, independent and far removed from those under Section 10 of the Act of 2001. In-fact the procedure for petitions under the two different sections has been distinctly provided for under the Act of 2001, Section 15 of the Act of 2001 deals with the procedure for eviction petitions under Section 9, and Section 16 with the eviction petitions under Section 10. In- fact, if the landlord was seeking to agitate his right for the eviction of the tenant under Section 10, he ought to have taken separate proceedings, but apparently ill-advised, sought to bring the said (6 of 7) [CW-13197/2009] ground by way of amendment to a pre-existing Section 9 eviction petition under the Act of 2001 by moving an application for amendment which was allowed by the Tribunal and not questioned by the tenant.
Be as it may, the matter was agitated before the Rent Tribunal, both under Section 9 and 10 of the Act of 2001. But in view of the overriding nature of Section 10 of the Act of 2001, the eviction petition can be treated as one under Section 10 alone. In that context the factum of the landlord being 65 years of age at the time of amendment of original application under Section 9 of the Act of 2001 is not in dispute. Nor has it been disputed that the tenancy was more than 3 years old when Section 10 of the Act of 2001 was invoked. Finding of the ground under Section 10 being made out has been arrived by the Rent Tribunal as also affirmed by the Appellate Rent Tribunal. In this view of the matter, I am of the considered view that there was no requirement for the landlord to prove any of the grounds under Section 9 of the Act of 2001 such as of the tenant acquiring alternative accommodation adequate for his use/ need. The evidence of the landlord being above 65 years of age and as a senior citizen entitled to the beneficial provisions of Section 10 of the Act was sufficient for a decree of eviction against the tenant and a judgment and certificate of possession in favour of landlord. The Rent Tribunal correctly came to such a finding on the evidence on record. It only overlay that finding by the unwarranted finding of a ground under Section 9 of the Act of 2001 - acquiring of alternate accommodation by the tenant adequate for his use also being (7 of 7) [CW-13197/2009] made out. That finding was indeed superfluous but not even remotely fatal to the landlord's right to have the tenanted evicted under Section 10 of the Act of 2001.
The Appellate Tribunal has over-looked the fundamental aspect in its judgment dated 28.7.2009 that conditions of Section 10 of the Act of 2001 being satisfied from the evidence on record
-- eviction of the tenant has to follow without the necessity of proving a ground for the tenant's eviction under Section 9 of the Act of 2001. The Appellate Rent Tribunal also erred in treating the eviction petition as a composite one under Section 9 and 10 of the Act of 2001. Section 10 of the Act of 2011 is overriding. On the issue of proceedings, the Act of 2001 only mandates compliance with the principles of natural justice. That was admittedly done both before the Rent Tribunal and Appellate Rent Tribunal. No complain / objection on that count has emanated from the tenant or his counsel at any stage of the proceedings--including before this Court. On record, the eviction petition and the appeal thereagainst to have been hotly contested.
Consequently, I would quash and set-aside the impugned judgment dated 28.7.2009 passed by the Appellate Rent Tribunal vitiated as it is by a complete misdirection and error of jurisdiction and restore that of the Rent Tribunal, Dholpur passed 28.11.2008. The petition stands allowed.
Consequences to follow.
(ALOK SHARMA) J.
DK