SADHANA AUSADHALAYA AND ANR. Vs. MONINGI NOOKAMA AND ORS.
HIGH COURT OF ORISSA
Sadhana Ausadhalaya And Anr.
Moningi Nookama And Ors.
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K.B. Panda, J. -
(1.) THIS is an application under Articles 226 and 227 of the Constitution of India, filed by the tenants for quashing the Appellate order, dated 19 -1 -1972 (Annexure 2), reversing the decision of the House Rent Controller, Berhampur, dismissing the petition, filed by the landlords (Opposite parties) for eviction of the tenants under Section 7(4) of the Orissa House Rent Control Act of 1967, hereinafter referred to as the Act.
(2.) THE background of the petition is thus:
The house, in question, is a tiled one in Victoria Market, Berhampur, initially leased out to the tenants on a monthly rent of Rs. 50/ - on 1 -1 -1952, on 10 -5 -1955, the landlords noticed the tenants for vacating the house on the ground that they wanted to extend the cinema house and to have staff quarters there. Thereafter, T.S. No. 209/55 was filed by tee landlords to enhance the rent. The suit was compromised and the rent was enhanced to Rs. 100/ - per month. On 23 -10 -1956, a fresh lease for seven years was executed (Exhibit 1) with the condition that the tenants would pay house rent at the rate of Rs. 100/ - per month. Towards the expiry of that lease, the landlords on 6 -7 -1963 issued notice (Exhibit 2) demanding the tenants to vacate the house as it was intended to extend the cinema house (Vijaya Talkies), belonging to the landlords. Thus, House Rent Control Case No. 54/63 was filed for eviction of the tenants on the ground of extension of the cinema house and for construction of staff quarters, which was allowed. The tenants took the matter in appeal (30/68) and while it was pending, permission was accorded to withdraw the proceeding with permission to file a fresh one on the same cause of action (Ext. 6).
Thereafter, the present House Rent Control Case No. 16/69 was filed on the ground that "the Applicants needed the suit house for the purpose of enlarging the parking area and thus extending facilities to the picture goers". The Applicant -landlords examined three witnesses and the tenant (Petitioner No. 2) examined himself. The House Rent Controller, Berhampur held as a fact that the registered notice, issued by the landlords (Exhibit 2) only mentioned that the house was required for extension of the cinema house building and not for enlarging the parking area; that the situation of the suit house is such that it could not be utilised as parking area; that the landlords failed to prove insufficiency of parking area as at present; that the landlords were guilty of suppressing the alleged Government circular, issued to the cinema -house owners directing them for making provisions for parking area and that even if there was any such, circular, that was just a letter of general character which could not tilt the issue. He also, inter alia, held that the need of the landlords for enlarging the parking area was not such as to justify the eviction of the tenants; that prior to the purchase of the cinema house by the landlords, the tenants were in possession of the suit house from 1952 that in the context of the long litigation between the parties, the alleged need of the landlords did not appear to be honest; and further that the previous conduct of the landlords indicate that they were more anxious to enhance the rent than for occupation of the house. His further finding was that the plea of extension of the cinema house being from the year 1955 which had not taken any concrete shape, did not appear to be a plea advanced in good faith for evicting the tenants, and lastly, that the mere desire of the landlords for embarking upon a scheme of re -construction of the house was not enough to entitle them for the eviction of the tenants. See Neta Ram and others v. Jiwan Lal and Anr. : : A.I.R. 1963 S.C. 499 So the House Rent Controller, ultimately holding that the ingredients of Section 7(4) of the Orissa House Rent Control Act were not satisfied, dismissed the application of the landlords for eviction.
The landlords preferred an appeal which was disposed of by Shri P.K. Mohapatra. Additional District Magistrate (Judicial), Berhampur on 4 -11 -1971. He, however, allowed the appeal and directed vacant possession of the house within three months of the order i.e. by 3 -2 -1972 (Annexure -2) - which is under challenge in this writ application.
(3.) MR . B.K. Pal, appearing on behalf of the Petitioners, contended that the Appellate authority fell into error in applying the provisions of Section 7(4) of the Act to the landlords ' case. His argument in this context was that enlarging the parking area which might or might not materialise, is nor an indispensable necessity coming under the purview of the Act as "requiring the house in good faith." Thus, his contention was two fold namely, (i) Section 7(4) of the Act was inapplicable to the facts and circumstances of the case and (ii) assuming it is applicable the finding that the house was required by the landlords in "good faith" was incorrect.
On facts, Mr. Pal contended that the learned Appellate Court has committed many errors on record. He assailed the following findings of the Appellate Court that the parking accommodation within the premises of Vijaya Talkies is insufficient for parking all the vehicles, brought by cinema goers; that the landlords intend to demolish the disputed house for the purpose of enlarging the parking space; that the cinema goers never park their cars near the triangular traffic island apprehending police prohibition; and that the house is very convenient for parking of vehicles to be all presumptions, not based on evidence.;
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