Jharkhand High Court
Jitendra Nath Das @ Jitendra Das vs The State Of Jharkhand on 21 February, 2019
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P. (C) No. 5668 of 2018
...
Jitendra Nath Das @ Jitendra Das ... ... Petitioner
-V e r s u s-
1.The State of Jharkhand.
2.Deputy Commissioner, Deoghar.
3.Sub Divisional Officer, Deoghar.
4.Amrit Krishna Mazumdar ... Respondents.
...
CORAM: - HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD ...
For the Petitioner :- M/s. Indrajit Sinha and Ajay Kumar Sah, Advocates. For the Respondents: - Mr. Vineet Prakash, A.C. to S.C. (L&C) ...
03/21.02.2019 This writ petition is under Article 226 of the Constitution of India, wherein, the order dated 21.01.2015, passed by the Rent Controller-cum- Sub-Divisional Officer, Madhupur, in Building Eviction Case No. 2 of 2014-15 has been challenged, whereby and whereunder in exercise of power conferred under Section 19 (i) (d) of the Jharkhand Building (Lease, Recent & Eviction) Control Act, 2011, the Rent Controller-cum-Sub- Divisional Officer, Madhupur has passed the order of eviction. The petitioner being aggrieved with the aforesaid order, has preferred an appeal before the Deputy Commissioner, being R.M.A. No. 68 of 2014-2015 but the same has been rejected by not interfering with the order, passed by the Rent Controller-cum-Sub-Divisional Officer, Madhupur.
2. The contention of the petitioner is that the entire proceeding has been initiated under the provision of Section 19 (i) (d) of the Jharkhand Building (Lease, Rent & Eviction) Control, Act, 2011 but the same provision has been enacted by virtue of the notification issued under the provisions of Section 1 (3) of the Jharkhand Building (Lease, Rent & Eviction) Control, Act, 2011, which is notified on 15.04.2015 and, therefore, proceeding, initiated under the provision of the Act, 2011 is said to be without jurisdiction. The said point having been raised by the petitioner by filing a petition on 06.08.2014 under Order 7 Rule 11 (d) of the Code of Civil Procedure but the same has not been dealt with, rather, the order has been passed on merits.
3. Mr. Vineet Prakash, learned A.C. to S.C. (L&C) has sought for four weeks' time to obtain instructions in the matter and file counter affidavit.
4. Let notice be issued upon the respondent no. 4 both under Registered Post with A/D as well as ordinary process, for which requisites etc. must be filed within a week.
Ad-interim Relief:-
5. The petitioner has prayed for passing an interim order to the effect to stay the operation of the impugned orders dated 15.12.2017 and 21.01.2015.
6. Learned counsel for the petitioner while pressing the aforesaid prayer has submitted that since the aforesaid orders are without jurisdiction and has been passed under the provision of the Jharkhand Building (Lease, Rent & Eviction) Control, Act, 2011, which has not been enacted in absence of a Notification issued in terms of the provision of Section 1 (3) of the Jharkhand Building (Lease, Rent & Eviction) Control, Act, 2011, the said Notification has come into effect on 15.04.2015, therefore, proceeding, initiated under the Act, will be said to be void ab initio. He submits that since the direction on the eviction has been passed on the basis of a Statute, which has been acted upon in absence of an appropriate Notification, issued by the appropriate Government, this Court after taking into consideration the arguments, advanced by the learned counsel for the petitioner and looking to the contents of the provision of Section 11 of the Jharkhand Building (Lease, Rent & Eviction) Control, Act, 2011, is of the view that the Statute provides enactment of the provision, as contained in Section under Jharkhand Building (Lease, Rent & Eviction) Control, Act, 2011 from the date when the Notification in terms of the provision of Section 1
(iii) would come.
7. The said Notification having been issued on 15.04.2015, therefore, the provision of the Jharkhand Building (Lease, Rent & Eviction) Control, Act, 2011 will be said to be applicable on or from 15.04.2015.
8. Herein, the Suit has been filed in the year 2014 and immediately, on that date, the Jharkhand Building (Lease, Rent & Eviction) Control, Act, 2011, since was not notified will be said to be not applicable, consequence would be that the whole Act, i.e. Jharkhand Building (Lease, Rent & Eviction) Control, Act, 2011 would be applicable, wherein, the provision has been made conferring power upon the Rent Controller to adjudicate such type of issues and remarkable departure has been made from the said provision, conferring power of eviction upon the Civil Court, but, hereunder the order has been passed by the Rent Controller-cum-Sub- Divisional Officer, Madhupur, but, admittedly, in absence of the Notification of enactment of the provision of Jharkhand Building (Lease, Rent & Eviction) Control, Act, 2011, the power exercised by the Sub- Divisional Officer-cum-Rent Controller, Madhupur, prior to enactment of the Act, will be said to be without jurisdiction and in view thereof, prima facie, case is in favour of the petitioner, therefore taking into consideration jurisdictional error, this Court deems it fit and proper to pass an order in the nature of maintaining status quo.
9. In view thereof, status quo, as exists today, over the land in question, shall be maintained till the next date i.e. 02.04.2019.
10. List this case on 02.04.2019 under the same heading.
(Sujit Narayan Prasad, J.) APK