ORDER
A.K. Shrivastava, J.
1. The land lady, being dissatisfied by the impugned order dated 19/6/2003 passed by Rent Controlling Authority, Shahdol in case No. 3/A 90/92-93 dismissing her application of eviction against the respondent, has filed this revision application under Section 23-A of M.P. Accommodation Control Act, 1961 (in short ‘the Act’).
2. The present applicant, being landlord of special category as defined under Section 23-J of Chapter III-A of the Act, filed an application before Rent Controlling Authority for eviction of respondent from the suit accommodation which is non-residential on the ground of her bona fide need as envisaged under Section 23-A(b) of the Act.
3. The application for eviction was filed by applicant-Shyama Bai against her tenant Shobhraj Ahuja who died during the pendency of the application before the Rent Controlling Authority and present respondent-Murlidhar was brought on record as his legal representative.
4. The pleadings of the applicant in her application for eviction is that she is the owner of the suit accommodation along with her daughter Smt. Kanta Jain. Defendant-Dr. Shobhraj Ahuja is the tenant at the rate of Rs.230/- per month in the suit accommodation which is non-residential and the respondent is carrying on the business of medical store. The suit accommodation is required by the applicant to start the business of cosmetic store which she will do along with her daughter who is also co-owner of the suit property. The applicant is not having any reasonably suitable nonresidential accommodation of her own in which she can start the business of selling the cosmetic items.
5. Further it has been pleaded by the applicant that respondent obtained the suit accommodation for non-residential purposes on rental basis from her late husband Mulayam Chand Jain who was a freedom fighter and who died on 7/5/1991. On these premised submissions a prayer has been made by the applicant to pass a decree of eviction against the respondent.
6. Original defendant-Shobhraj Ahuja, who died during the pendency of the application before the Rent Controlling Authority, filed written statement and admitted the tenancy. According to him, deceased husband of applicant namely Mulayam Chand Jain gave the suit accommodation in the year 1950 at the rate of Rs.25/- per month on tenancy basis to him to carry on the business of medical shop. The suit accommodation which has been built on the land is of Government and the same did not belong either to deceased Mulayam Chand Jain or to present applicant who is widow of deceased-Mulayam Chand Jain.
7. It has also been pleaded by the defendant that vide agreement dated 1/11/1956 on the basis of permanent lease at the rate of Rs.45/-per month the suit accommodation was given to him by Mulayam Chand Jain and it was agreed between the parties that till the pleasure of the tenant, he may continue to carry on the business. Neither the deceased landlord Mulayam Chand Jain nor his heirs shall be entitled to get the suit accommodation vacated. After executing the said agreement in presence of the witnesses, a copy thereof was given to original defendant. It has also been pleaded that from time to time the rent was enhanced by the respondent and in the month of November, 1990 the rate of rent was enhanced to Rs.230/-per month which is the current rate of rent.
8. It has also been pleaded that Mulayam Chand Jain died on 7/5/1991 and after his death in the month of January, 1992 the present applicant pressurized respondent to enhance the rent up to Rs.500/-per month which was not accepted by him, as a result of which this frivolous application has been filed which is ex-facie mala fide.
9. It has also been pleaded by the defendant that the applicant is old aged lady having age of 75 years and she had no experience to carry on the business. She is having only one daughter namely Smt. Kanta Jain having age of 41 years and who had been married in village Dhana, Distt. Sagar in the year 1971-72 with one Sumer Chand Jain who is a Lecturer in Government School. It has also been pleaded that said Smt. Kanta Jain is an agent of Life Insurance corporation as well as of the post office and she is not a member of the family of applicant nor she is dependent on her. According to the respondent, applicant is not having any bona fide need and her real intention is to enhance the rent.
10. In a special plea it has been pleaded that in order to get the suit accommodation vacated, mala fidely an application under Section 133, Cr.P.C. was filed before the Sub Divisional Officer, Sohagpur, Distt. Shahdol which is pending. The applicant is getting handsome family pension after the death of her husband who was drawing the pension of freedom fighter. The land on which suit accommodation is built, is Government land and since the accommodation is constructed on government land, therefore, the agreement which was made between the defendant and Mulayam Chand Jain is null and void. It has also been pleaded that applicant has applied before the Collector to obtain permanent lease and that matter is pending before the said authority. A plea of adverse possession has also been raised by the defendant in the written statement. On these premised pleadings it has been prayed that the application be dismissed.
11. Rent Controlling Authority after framing necessary issues and recording the evidence of the parties, dismissed the application by the impugned order holding that the bona fide need of the applicant is not proved because she is drawing family pension of freedom fighter after the death of her husband Mulayam Chand Jain who was a freedom fighter and she is also getting the rent of the suit accommodation and the total amount which she is getting is sufficient to satisfy the livelihood of the applicant and, therefore, the need of bona fide is not objective. The application for eviction has also been dismissed on another reason that on 1/11/1956 a perpetual lease was executed between Mulayam Chand Jain and original defendant-Dr. Shobhraj Ahuja that till the pleasure of tenant, he shall enjoy the suit accommodation on the tenancy basis and this agreement will be binding on the heirs of the landlord also. According to Rent Controlling Authority, the said agreement is binding upon the present applicant being the heir of deceased landlord Mulayam Chand Jain.
12. In this manner, this revision application has been filed by the landlady under Section 23-E of the Act before this Court.
13. The contention of Shri Pranay Verma, Learned Counsel for the applicant, is that there is a non-obstante clause in Section 23-A of the Act and, therefore, even if there was an agreement to the effect that suit accommodation would not be vacated by the defendant and he shall enjoy the same on tenancy basis in perpetuity, the same will not come in the way of applicant if she has filed an application to evict the respondent on the ground of bona fide need to start the business. Further it has been contended that issue No. 6 was framed in respect to the ownership by the Rent Controlling Authority and the same was decided against the respondent in view of the order passed by this Court in Civil Revision No. 442/1998 decided on 30/1/2002. Even otherwise by placing reliance on the decision of Supreme Court Anar Devi (Smt) v. Nathu Ram (1994) 4 SCC 250, it has been argued that applicant is not required to prove her absolute title. By attacking the finding of Rent Controlling Authority that applicant is obtaining the family pension of freedom fighter and also receiving the rent which is being paid by the defendant to her, which would satisfy the need of her livelihood and, therefore, the suit accommodation is not required bona fidely by the landlady, it has been contended that defendant is not having any authority to ask and direct applicant to live on the limited income only. By placing reliance on the decisions Sudhir Tiwari v. Bhagwanti Devi Issrani 2002(3) MPLJ 62, and Harvilas Shivhare v. Jahoor Khan 1997(1) MPLJ 23, it has been contended that the old age of widow will not be a bar to her if the need is bona fide. On these premised submissions it has been submitted by Learned Counsel that by setting aside the impugned order of Rent Controlling Authority, the application for eviction of landlady be allowed by passing a decree of eviction.
14. On the other hand, Shri P.N. Pathak, Learned Counsel for the respondent, submits that a perpetual lease was executed between original landlord-Mulayam Chand Jain and defendant-Dr. Shobhraj Ahuja whose legal representative is present respondent. The suit was given on tenancy basis to Dr. Shobhraj Ahuja and since it was agreed that the same would not be vacated and the agreement would be applicable to the heirs of Mulayam Chand Jain also, therefore, the suit accommodation cannot be vacated and the defendant is entitled to use the suit accommodation on tenancy basis till his pleasure and, therefore, learned Rent Controlling Authority did not commit any error in dismissing the application for eviction. It has also been put forth by him that looking to the advance age of the landlady and since she is getting sufficient funds in order to meet the need of her livelihood, the filing of application of eviction is nothing but out come of mala fide because when the defendant did not agree to enhance the rent up to Rs.500/-per month, mala fidely this application for eviction has been filed and hence, the Rent Controlling Authority did not commit any error in dismissing the application of eviction. In support of his contention, Learned Counsel has placed reliance Shyam Lal Vyas v. Inderchand Jain 1999(1) MPLJ 121, Keshar Singh v. Mst. Sohadradevi 1985 MPRCJ Note 20 and Indrasen Jain v. Ramesh Wardas .
15. It has also been contended by Learned Counsel for the respondent that if the pleadings mentioned in the application are considered in proper perspective, it would reveal that the alleged need has been shown to be of her married daughter also and since the daughter is married, the suit accommodation cannot be evicted for the need of her married daughter under Clause (b) of Section 23-A of the Act.
16. Having heard Learned Counsel for the parties, I am of the view that this revision application deserves to be allowed.
17. I shall first deal with the ground in respect of perpetual lease deed in favour of tenant and thereby holding the application of eviction is liable to be dismissed by the Rent Controlling Authority. Shri Pathak, Learned Counsel for respondent/tenant, has also supported the said finding. I have no scintilla of doubt in my mind that on the said ground the application of eviction filed by applicant under Clause (b) of Section 23-A of the Act cannot be dismissed because there is a non-obstante clause in this section. In the opening sentence of Section 23-A of the Act there is non-obstante clause which is having a meaning to nullify any contract to the contrary. Otherwise, legislating the non-obstante clause in this section would have no meaning and it would become otious. This non-obstante clause clearly override all the contract which runs contrary to the section and any contract to the contrary will loose its significance on account of this statutory provision and, therefore, I am of the view that even if there was any agreement contrary to the section, which was executed between landlord Mulayam Chand Jain in favour of defendant-Dr. Shobhraj Ahuja, the same would not have any sanctity in the eye of law and, therefore, the application filed by applicant cannot be thrown like a waste paper on this ground and is not liable to be dismissed. In this context I may profitably placed reliance on the decision of this Court Panjumal Daulatram (Firm) v. Sakhi Gopal Thakurdin Agrawal 1979 JLJ 230.
18. A clause beginning with notwithstanding anything contained in any other law for the time being in force or contract to the contrary, appended to Section 23-A in the beginning is to give the enactment part of the Section in case of conflict on override effect over any other agreement or even any law for time being force mentioned in the non-obstante clause. In T.R.Thkandur v. Union of India and Ors. , the Supreme Court while examining Section 20 of the Urban Land (Ceiling and Regulation) Act held that non-obstante clause in the said section clearly indicates that Section 20 overrides the provisions of Chapter III of the said Urban Land (Ceiling and Regulation) Act. In Section 23-A of the present Act, also non- obstante clause would override not only any law for the time being in force but also the contract which is contrary to the said section. In the case of Panjumal Daulat Ram (supra), the Single Bench of this Court while examining the scope of Section 12(1) of the present Act has held that the non-obstante clause in this section gives an overriding effect over all other laws including the transfer of Property Act and, therefore, according to me, the same principle is also applicable to Section 23-A of the Act. Thus, I do not find any substance in the finding of Rent Controlling Authority holding the perpetual lease deed executed by Mulayam Chand Jain in favour of defendant- Dr. Shobhraj Ahuja is binding upon the parties which is contrary to the statutory provision and, therefore, the contention of Learned Counsel for the respondent in this behalf cannot be accepted.
19. I am also not impressed by the submission of learned counsel for the respondent that because applicant has not proved her ownership on the suit accommodation, therefore, the application is liable to be dismissed. The applicant assailed an order passed against her on 20/1/1998 by Rent Controlling Authority by filing Civil Revision No. 442/98 (Smt. Shyama Bai v. Dr. Shobhraj Ahuja) before this Court which was decided on 30/1/2002 holding that Rent Controlling Authority is unnecessarily entering into the question of title of land and further held that tenant is estopped from denying the title of the landlord. The Rent Controlling Authority decided issue No. 6 in favour of applicant and against defendant/respondent and has categorically held that plaintiff is the owner of the suit accommodation. Even otherwise the plaintiff is not required to prove absolute ownership as held by the Supreme Court in the case of Anar Devi (supra). At this juncture, I may further add that defendant himself admitted the ownership of the applicant. Murlidhar Ahuja (NAW 1) who is son of deceased defendant-Dr. Shobhraj Ahuja has specifically admitted in para-1 that the suit shop is of applicant-Shyama Bai and, therefore, it is held that applicant has proved her ownership as required under Clause (b) of Section 23-A of the Act. In the case of Anar Devi (supra), the Supreme Court in para-18 has held that since the title of ownership is acknowledged by the tenant, he was not entitled to deny even the title of the applicant to the accommodation. Admittedly, the applicant is a widow and she is protected landlord as defined under Section 23-J of the Act mentioning the special category of the landlord.
20. I do not find any merit in the contention of Learned Counsel for the respondent that indeed the need is for her married daughter also and, therefore, the application by invoking special provision envisaged under Section 23-A of the Act is liable to be dismissed. True in the application it has been pleaded by the applicant that she would start the business along with her daughter. It is also true that Smt. Kanta Jain (A.W.2) is a married daughter of the applicant. But, if the pleading made in para-16-A of the application and the evidence of the landlady Smt. Shyama Bai and the statement of her daughter Smt. Kamta Jain is considered in proper perspective, it is revealed that indeed bona fide need is only for the applicant Shyama Bai and her daughter Smt. Kanta Jain would only assist her in carrying on the business and, therefore, even if it is stated in the application that applicant would do the business along with her daughter Smt. Kanta Jain it should be given objective attitude because it has been specifically pleaded by the applicant that she is having bona fide need to start the business. It has come in the evidence of applicant that her daughter is residing with her and, therefore, if the applicant would take assistance of her daughter to carry on the business, for no rhyme or reason it can be said that the need is not of the applicant. For carrying on a business of selling cosmetic items, it is a matter of common experience that some helpful hands are required. Some time the service of a servant is being taken by giving employment to him and in that situation by no stretch of imagination it can be said that the need is for the servant and, therefore, by applying the same analogy, it can safely be said that if the assistance of the daughter would be taken by the applicant, it cannot be said that the actual bona fide need is for the daughter and not of the landlady. The service of daughter to assist in the business is only a service though having nexus with the business but the said service of assistance cannot be said to be the actual bona fide need of the daughter but the same would be of the applicant only who is a widow.
21. Merely because, the applicant is having old age, ipso facto, would not mean that the need is not bona fide. In this context, the nature of business is required to be seen. In the present case the suit accommodation is needed bona fidely by the applicant to start the business of cosmetic items which can easily be performed by anybody irrespective whatever the age he or she is having. In this business a customer would come and ask to purchase a particular cosmetic item and the seller is required to take out that item from the showcase or where the same is kept and give it to the customer after obtaining the price of that particular item. Easily, this can be performed by the applicant though she is having advance age near about 70 years. In doing this type of business, no experience is required. Even for the sake of argument, it is held that some experience is required to conduct the business which the applicant is not having, therefore, at the most, the result would be that her business would fail. But, this cannot be a ground to hold that need of applicant/widow is not bona fide though other requirements of Clause (b) of Section 23-A of the Act are proved. The Division Bench of this Court in Sudhir Tiwari (supra), has held that the old age will not come in the way to start the business of tailoring and dress designing. In the case of Harvilas Shivhare (supra), a retired government servant having age of 75 years filed suit to set up the business of floor mill. In that case it was held by this Court that the need of landlord is genuine and bona fide despite he is having age of 75 years or the fact that he has no experience of running the floor mill which will not be a ground for not granting him the relief. Hence, the old age of the applicant would also not come in her way in order to dis-entitle the relief of eviction which she has claimed. The decision of Singhai Batti Bai v. Ramkdas C.R. No. 458 of 1987 decided on 9/3/1990 (Jabalpur), placed reliance by respondent is not at all applicable in the present case for the simple reason in that case the widow was a Pardanashin lady and, therefore, it was held that she could not start the business in the open market.
22. I am also not impressed by the submission of learned counsel for the respondent that the applicant is receiving the monthly family pension amount as well as the rent at the rate of Rs.230/- per month which will be more than sufficient to satisfy her daily need and, therefore, the alleged need is not bona fide. If the applicant wants to earn more income by starting the business, she cannot be forced to live with the limited income which she is receiving and the application cannot be dismissed merely on this ground if the bona fide need is otherwise found to be proved. The Supreme Court in the case of Vishwanath and Anr. v. Hidayatt Ullah , has categorically held while deciding the case under Section 23-A (b) of the Act that there is no presumption that a pensioner who had adequate pension, cannot have bona fide need to start the business after his retirement. I have already held herein above that the bona fide need as envisaged under Clause (b) of Section 23-A of the Act has been proved.
23. The decision of Azizunnisha Wd/o Mohd. Yasin Hyder v. Channanlal S/o Kishan Chkandra and Ors. 1991 MPLJ 303, placed reliance by Learned Counsel for the respondent, is not applicable in the presence case because in the present case this Court is not deciding the matter on assumptions and irrelevant considerations. Indeed, the bona fide need of plaintiff has been found to be proved. The decision of Keshar Singh (supra) is also not applicable in the present case because in that case the married daughter was residing separately and she was not the member of the family and, therefore, it was held that the decree of eviction cannot be passed on the ground of her requirement. I have already held herein above that the need is not for the daughter but the same is for plaintiff herself and, therefore, the decision of Keshar Singh (supra) is not applicable. The decision of Indrasen Jain (supra) is also not applicable in the present case because in that case the plaintiff was a retired servant of Government aided institution and, therefore, he was not found to be landlord of special category, as defined in Section 23-J of the Act and, therefore, this decision is also not applicable.
24. The Rent Controlling Authority by rejecting the application has totally deviated from the well settled principles of law which I have enumerated herein above and, therefore, the said order cannot be allowed to stand and the same is hereby set aside.
25. Resultantly, this revision application stands allowed, the application of eviction filed by applicant against respondent is hereby allowed and respondent is hereby directed to vacate the suit premises. The respondent shall also bear the costs of the applicant of the trial Court as well as of this Court. Counsel fee Rs.2,000/-, if pre-certified.
