Writ Petition No.1221 of 1995,Writ Petition No.1222 of 1995

7th January, 2003

Petitioner Counsel: Shri. N. A. PADHYE
Respondent Counsel: Shri. B. N. MOHTA, Shri. DEOPUJARI

Cases Cited:
Janba Daulatrao Borkar Vs. Rajeshkumar Ramjiwan Agarwal, 1975 Mh.L.J. 746 [Para 8]
Rukminibai Vs. Bhaiyaji, 1977 Mh.L.J. 859 [Para 9]

JUDGMENT

JUDGMENT :- Heard Shri.N.A. Padhye, Advocate for Shri.A.S. Jaiswal, Advocate for the Petitioners, Shri.B.N. Mohta, Advocate for Respondent No.1 and Shri. Deopujari, the learned A.G.P. for Respondents No.2 and 3.

2. Both these petitions are being disposed of by this common judgment.

3. Petitioner/tenant has approached this Court challenging the order dated 22-9-1994 passed by the Additional Collector, Nagpur, in Rent Control Appeal Nos.130/A-71(2)/92-93 and 131/A-71(2)/92-93 which is a common judgment and order in both these appeals arising out of order dated 28-6-1993 passed by the Rent Controller, Nagpur, in Revenue Case Nos.497/A-71(2)/1988-89 and 496/A-71(2)/1988-89, which are disposed of by a common order by the learned Rent Controller whereby the Revenue Courts below allowed the applications filed by the respondent no.1 under sub-clause (3)(v) and (3)(vi) of Clause 13 of the C.P. & Berar Letting of Houses and Rent Control Order, 1949 (hereinafter shall be referred to as 'the Rent Control Order' for the sake of brevity). However, the prayers under sub-clause (3)(viii) and 3(ix) of Clause 13 of the Rent Control Order were not granted.

4. The facts necessary for the purposes of the present petition in short are, the respondent No.1 in both these petitions are the Landlords of their respective houses referred to in the petition situated at Abhyankar Road, Mehadia Chowk, Dhantoli, Nagpur. It is a double storeyed house comprising of four shop tenements on ground floor and on the first floor. The Landlords moved an application under Clause 13(3)(v), (vi), (vii), (viii) and (ix) of the Rent Control Order contending that the petitioner/tenant had acquired alternative accommodation and that he was not in need of suit premises. The Landlords in both these petitions further contended that the landlords wanted the suit premises for their bona fide occupation. The landlords also sought permission on other grounds also viz. the landlord desires to make essential repairs or alterations which cannot be made without the tenant vacating the same and that the tenant committed or was committing such act of waste as are likely to impair materially the value or utility of the suit premises. The additional ground on which permission was sought for terminating the tenancy of the petitioner was that the tenant did commit nuisance demanding his ouster from the premises in question.

5. The applications of the Landlords in both these petitions were registered as Revenue Case Nos.497/A-71(2)/1988-89 and 496/A-71(2)/1988-89. On having been noticed, the petitioners tried to defend the proceedings tooth and nail. Appropriate evidence was recorded in the matter. Necessary documents were produced by the parties concerned. The learned Rent Controller who dealt with the matter, by his order dated June 28th, 1993 reached to the conclusion that the respondent/landlord proved his case so far as regards his claim under sub-clause (3)(v) and (vi) of Clause 13 of the Rent Control Order is concerned. However, on rest of the grounds, the permission was not granted by the Rent Controller. It would suffice to say that the learned Rent Controller did appreciate the evidence, dissect the same and reach to the aforesaid conclusion.

6. The abovesaid common judgment happened to be the subject matter of appeal before the Appellate Authority by way of two different appeals at the instance of the two landlords in these petitions. These appeals were registered as Rent Control Appeal Nos.130/A-71(2)/92-93 and 131/A-71(2)/92-93. The learned appellate authority who dealt with the appeals also passed a common order on September 22nd, 1994 and dismissed the appeals.

7. Shri. Padhye, the learned advocate appearing on behalf of the petitioner vehemently contended that the learned appellate Rent Control Authority committed a grave error in simply relying on the conclusions drawn by the Rent Controller and it is a patent case wherein it could be demonstrated that the appellate authority did not apply its mind independently to the evidence adduced on the record so as to reach to appropriate conclusion. According to Shri. Padhye this has definitely resulted into miscarriage of justice as the appellate authority even did not find it appropriate to find out the issues to be decided in the matter, to find out whether the evidence has been appropriately appreciated by the Rent Control Authority and according to Shri. Padhye this itself demonstrates that there was no application of mind by the appellate authority to the documentary as well as oral evidence on the record. Shri. Padhye invited the attention of this Court specifically to the observations made by the appellate authority in its order, those observations being:

"For the sake of brevity, I do not think it proper to discuss everything"

and the second observation:

"The Rent Controller has given a very speaking finding and I think that, Rent Controller has very properly held that, the tenants had secured alternate accommodation."

He also invited my attention to another observation by the learned Rent Control Appellate Authority wherein the learned Additional Collector observed:

"The argument that recently an agreement has been arrived at, is of no avail in my opinion as the circumstances can change very fastly."

From the abovesaid observations of the learned Appellate Authority, it is absolutely clear that the learned Appellate Authority found it not necessary go through the evidence, to re-appreciate the evidence and then to give his own finding so as to suggest that the judgment and order passed by the learned Rent Controller could be justified.

8. Shri. Mohta, the learned advocate appearing on behalf of the respondent no.1 in both these petitions vehemently contended that when the order passed by the Rent Controller was a detailed, well reasoned and speaking order, it was not necessary for the appellate Authority to enter into the appreciation of the evidence afresh when the appellate authority could be said to be of the same view and the conclusions to which the learned Rent Controller had arrived at. This argument of Shri. Mohta, in my opinion, is very hard to digest. We cannot forget that under Clause 21 of the Rent Control Order, the appeal is provided and the appellate authority is supposed to apply its mind independently to the facts and circumstances of the case and also to the evidence adduced on the record. Shri. Pandhye in this respect also invited my attention to a judgment of this Court reported in 1975 Mh.L.J. 746 in the matter of Janba Daulatrao Borkar Vs. Rajeshkumar Ramjiwan Agarwal. In my opinion, Shri. Padhye rightly relied on this judgment which specifically deals with the point in question. His Lordship who dealt with the matter has specifically observed as under:

"The term 'decision' or 'judgment' is not defined in the Rent Control Order but the "decision" which the Collector is expected to give in appeal while exercising powers of appeal under clause 21, C.P. and Berar Letting of Houses and Rent Control Order is in the nature of judgment. It is therefore the duty of the appellate Court to properly appreciate the evidence on record applying its mind independently and then write an order indicating that the evidence has been fairly and properly dealt with. It must show that it has applied its mind to all the evidence on record and also considered all important factors in that behalf. The Rent Controller as well as the appellate authority exercise judicial functions and are legal Tribunals. They act as quasi-judicial tribunals adjudicating upon civil rights of the parties and are not merely executive officers."

9. Shri. Padhye, also invited my attention to yet another decision reported in 1977 Mh.L.J. 859 in the matter of Rukminibai Vs. Bhaiyaji. His Lordship while dealing with the matter specifically observed as regards what was the requirement of appellate judgment and it specifically directs that it should be a judgment which should contain discussion of arguments and evidence on the record. Keeping in view these observations, in my opinion this petition can be disposed of on this very short point by setting aside order passed by the learned Additional Collector in appeal and remitting the matter back to the appellate authority for its decision afresh after hearing both the parties and after weighing the evidence appropriately and then reaching to the conclusion without getting swayed by any of the observations made by the learned appellate authority in its earlier order.

10. With the above directions, the petitions are allowed. The matter is remanded back to the appellate authority for its decision. Since the original appeals are of the year 1993, I feel it necessary to direct the appellate authority i.e. Additional Collector with Rent Control Appellate Powers, Nagpur to decide the appeals earliest possible within six months from the date of the communication of this order to the learned appellate authority. To facilitate the hearing earliest possible, the parties agree to appear before the appellate authority on 20-1-2003 at 11 a.m. sharp whereafter the appellate authority shall fix the matter for hearing as per his convenience. Record of the case be sent back to the appellate authority immediately.

11. In the circumstances, the Rule is made absolute in the aforesaid terms. However, in the circumstances of the case, there would be no order as to cost. Certified copy expedited.

Petitions allowed.