RAJESH SHANKAR,J. - (1.) The present writ petition has been filed for issuance of appropriate direction upon the Circle Officer, Gamharia (respondent no. 4 to the writ petition) restraining him from taking possession of the shop premises situated at NAC Ward No. 05, Thana No. 29, Old Plot No. 1142(A) (B), New Plot Nos. 1273 and 1274, Old Khata No. 42 and New Khata No. 59, pursuant to notice dated 04.10.2017 (Annexure-5 to the writ petition). It has further been prayed for issuance of direction upon the Deputy Commissioner, Seraikella Kharsawan to register the appeal filed by the petition on 18.09.2017 under Section 36 of the Jharkhand Building (Lease, Rent and Eviction) Control Act, 2011 (hereinafter referred to as "the Act") which has not been entertained by the office of the Deputy Commissioner, Seraikella Kharsawan-cum-Appellate Authority under the Act till date. It has also been prayed for restraining the respondents from taking possession of the shop premises under Section 39 of the said Act till disposal of the appeal filed by the petitioner on 18.9.2017 in the court of Deputy Commissioner-cum-Appellate Authority under the Act.
(2.) Mr. V.P. Singh, the learned Senior Counsel for the petitioner submits that the respondent nos. 5 and 6 filed Eviction Case No. 01 of 2016 in the court of Sub-Divisional Officer, Seraikella against the petitioner for evicting him from the shop premises situated at NAC Ward No. 05, Thana No. 29, Old Plot No. 1142(A) (B), New Plot Nos. 1273 and 1274, Old Khata No. 42 and New Khata No. 59. The Rent Controller-cum-Sub-Divisional Officer, Seraikella vide order dated 01.09.2017 decided the case in favour of the respondent nos. 5 and 6 and directed the petitioner to hand over the possession of the shop premises in question within a period of fifteen days. It is further submitted by the learned Senior Counsel for the petitioner that since the order dated 01.09.2017 was not passed by the Rent Controller-cum-Sub-Divisional Officer, Seraikella in open court, the petitioner came to the knowledge of the order on 14.09.2017 and thereafter, he immediately filed an appeal in the court of Deputy Commissioner, Seraikella Kharsawan-cum-Appellate Authority under the Act, on 18.09.2017. It is also submitted that the office of the Deputy Commissioner-cum-Appellate Authority under the Act has not yet registered the said appeal and the same is lying idle in the said office. Subsection (1) of Section 39 of the Act clearly mandates that the execution of the order of the Controller under the Act can be done where no appeal against the order passed by the Controller has been preferred by aggrieved person under subsection (1) of Section 36 of the Act. Since the present appeal has been filed within a period of four days from the date of passing of the order dated 14.09.2017 of the Sub-Divisional Officer-cum-Rent Controller, the impugned notice dated 04.10.2017 issued by the Circle Officer, Gamharia is also contrary to the provisions of law. Under the said circumstance, the impugned notice dated 04.10.2017 (Annexure-5 to the writ petition) issued by the Circle Officer, Gamharia directing the petitioner to hand over the possession of the shop premises to the respondent nos. 5 and 6 by 11.10.2017, is not justified.
(3.) Mr. Vineet Prakash, the learned JC to SC (L&C), submits that since the Sub-Divisional Officer-cum-Rent Controller, Seraikella passed the order under Section 19 of the Act on 01.09.2017 and the petitioner preferred the appeal on 18.09.2017 i.e., after a period of fifteen days, the Circle Officer, Gamharia has rightly issued the notice dated 04.10.2017 directing the petitioner to vacate the shop in question and to hand over the possession to the respondent nos. 5 and 6.;