Jharkhand High Court
Kishori Lal Choudhary vs State Of Jharkhand Through ... on 5 April, 2019
Equivalent citations: AIRONLINE 2019 JHA 726
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P (C) No. 1500 of 2019
1. Kishori Lal Choudhary, aged about 75 years, Son of Late Changilal
Choudhary;
2.Subhas Kumar Choudhary @ Subhash Kumar Chaudhary, aged about 75
years, Son of Late Changilal Choudhary;
Both residents of C/o C/o Anand Hardware, S.N. Ganguly Road, PO-GPO,
PS-Kotwali, District-Ranchi, PIN-834001 (Jharkhand)
....... Petitioners
Versus
1. State of Jharkhand through Commissioner, South Chotanagpur Division,
Ranchi.
2.Deputy Commissioner, Ranchi.
3.Rent Controller-cum-Sub Divisional Magistrate, Sadar Ranchi.
4.Vaskar Ganguly @ Bhaskar Ganuly. ...... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioners : Mr. Sumeet Gadodia, Adv.
For the Respondents : Mr. Prabhat Kumar Sinha, S.C-IV
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th
2/Dated: 5 April, 2019
This writ petition is under Article 226 of the Constitution of India wherein the following reliefs has been sought:
(I) To quash the order dated 07.12.2018 passed by respondent no.3 in M.P. Case No.03 of 2018, whereby and whereunder the petitioners have been directed to deposit the entire arrears of rent amount to Rs.61,36,200/- in alleged compliance of the order dated 06.02.2015 passed in J.B.C Case No.05 of 2008, failing which the steps would be taken for attachment of the bank account.
(II) Direct the respondent no.1, Commissioner, South Chotanagpur Division, Ranchi to expeditiously hear and dispose of the Revision Case filed by the petitioners being Ranchi J.B.C Revision No.22 of 2018.
(III) In alternative to prayer numbers 1 and 2, declare the order dated 06.02.2015 passed in J.B.C Case No.05 of 2018 as nonest in the eye of law being void ab initio in view of the fact that the said order has been passed in alleged exercise of powers conferred under Sections 9, 10 and 11 of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act 2011 (hereinafter referred to as Act 2011).
2. The factual aspect as has been argued by the learned counsel for the petitioners that the respondent no.4 being the owner of piece of land situated 2 in S.N. Ganguly Road, Ranchi had given the said vacant land to M/s Kishorei Lal Choudhary and brothers and as per the terms of tenancy the building was to be constructed by the tenants at their own cost and expenses, the petitioners had constructed a shop over the portion of tenancy and one shop constructed is known as 'Subhash Industrial Corporation' and other shop as Anand Hardware and both the shops were running by the petitioners.
3. As per the agreement entered between the petitioners and respondent no.4 rent was fixed @ Rs.500 per month and said rent was adjusted initially at the cost of construction and thereafter the rent was being paid regularly @ Rs.500/ per month in favour of respondent no.4. The respondent no.4 has filed an application for fixation of rent before the Rent Controller, Ranchi in terms of the provisions contained in Jharkhand Buildings (Lease, Rent and Eviction) Control Act, 2000 (hereinafter referred to as Act 2000) which was registered as BBC Case No.05 of 2008 for fixation of the rent which was disposed of vide order dated 28.11.2009, whereby and whereunder the rent of the premises has been fixed @ Rs.12 per sq. ft. against which an appeal was preferred before the Deputy Commissioner, Ranchi invoking the jurisdiction conferred under Section 24 of the Act, 2000 which was registered as BBC Appeal No.127R15/2008-09 and simultaneously another appeal was filed by the respondent no.4 being BBC Appeal No.128R15/2008-09 objecting the fixation of rent of the premises @ Rs.12 per sq.ft. The appellate authority vide order dated 14.12.2011 set aside the order dated 28.11.2009 passed in BBC Case No.5 of 2008 and directed the Rent Controller to hear the matter afresh, thereafter the proceeding was initiated on remand in respect of the original proceeding.
The matter was heard on remand but in the meanwhile the new Act i.e Act 2011 came into being which became applicable with effect from 15.04.2015 in pursuance to the notification published in the gazette notification in terms of the provision of Section 1(3) of the said Act.
The Sub-Divisional Officer cum Rent Controller has passed order dated 06.02.2015 determining the rent fixed @ Rs.25/ per sq. ft. and Rs.15/ per sq. ft. per month for the Mezzanine flore against which the petitioners have preferred an appeal being J.B.C Appeal No.6R15/2016-17 but the same has been dismissed and thereafter the petitioners have preferred revision before the revisional authority being J.B.C Revision No.22 of 2018 which is lying pending before the revisional authority.
34. The respondent no.4 has filed an application for execution of the order passed by the Rent Controller in J.B.C Case No.05 of 2008 and after hearing the petitioner has passed order dated 07.12.2018 directing him to deposit the amount to the tune of Rs.61,36,200/- failing which the bank account of the petitioners would be taken for attachment against which this writ petition has been filed.
5. Learned counsel for the petitioners has raised various issues both as legal as well as factual aspect.
6. Mr. Prabhat Kumar Sinha, learned S.C-IV has vehemently opposed the prayer made by the petitioner on the ground of pendency of revision by submitting that he can raise all these issues before the revisional authority including the order for an ad interim relief.
His submission is that when the petitioners have already approached before the statutory revisional authority invoking the jurisdiction conferred to this Court under Article 226 of the Constitution of India may not be said to be a proper approach of the petitioner since there cannot be any two simultaneous proceeding.
His further submission is that order dated 07.12.2018 can only be said to be an effect of the consequence of the order passed in J.B.C Case No.05 of 2008 which is the subject matter of the revision before the revisional authority after having merged with the appellate order passed in J.B.C Appeal No.6R15/2016-17.
7. Having heard learned counsel for the parties and after appreciation of the rival submissions this Court is of the view that the power conferred to the High Court under Article 226 of the Constitution of India is to be invoked after exhausting all alternative remedy available under the statute and without exhausting the remedy this power can be invoked by the party only if the order is without jurisdiction or in violation of principles of natural justice or if there is infringement of fundamental rights.
8. But, here in the instant case, no such ground is available as because the petitioners have already invoked the jurisdiction of the revisional authority as per the provision made under Section 37 of the Act 2000 and where the question of the legality and propriety of the order dated 06.02.2015 passed by the Rent Controller in J.B.C Case No.05 of 2008 having been affirmed in the appeal being J.B.C Appeal No.6R15/2016-17 are the subject matter and, therefore, this Court refrains itself in exercising 4 the extraordinary jurisdiction conferred under Article 226 of the Constitution of India on the ground that there cannot be two simultaneous proceeding.
9. So far as alternative relief sought for by the petitioners is concerned, the same can be assailed by the petitioners before the revisional authority because the same is the consequence of the original order passed in J.B.C Case No.05 of 2008 and the outcome of the revision would ultimately depend upon the order dated 07.12.2018, therefore, this Court also refrains itself from interfering to the relief sought for by the petitioners.
In view thereof, the writ petition is held not to be maintainable at this stage accordingly dismissed.
It has been submitted by learned counsel for the petitioners that one of other prayer is for direction upon the revisional authority to decide the revision as also he may be directed to consider for passing an ad interim relief so that petitioners may not be subjected to any harassment in case of non-compliance of order dated 07.12.2018 by attaching the bank account.
In view thereof, this Court is of the view that the said direction needs to be passed.
Therefore, the revisional authority, is directed to expedite the revision and decide it within a period of six months from the date of receipt of copy of the order after hearing the contesting parties and looking to the relevant records.
The petitioner is at liberty to make application for interim relief. If such application would be made within a period of one week from the date of receipt of copy of the order, the revisional authority will pass appropriate order within a period of three weeks from the date of receipt of such application.
10. Accordingly, the writ petition stands disposed of.
(Sujit Narayan Prasad, J.) Saket/-