Vishal Kumar S/O Girdhar Gopal and anr. Vs. State of Madhya Pradesh and ors. - Court Judgment

Excerpt:

.....were pending before high court on date immediately preceding date of commencement of 1981 adhiniyam on 1st july 1981. it will be clear from sub-section 92) of section 1 of the 2005 adhiniyam that the 2005 adhiniyam was to come into force with retrospective effect from first day of july, 1981 i.e., with effect from the date from which the appeals under clause 10 of the letters patent were abolished by the 1981 adhiniyam. it will be further clear from section 2 of the 2005 adhiniyam that under the 2005 adhiniyam, appeal was provided for only from a judgment and order passed by a single judge in exercise of original jurisdiction under article 226 of the constitution of india to a division bench comprising of two judges of the high court and no appeal was provided for from the judgment and order passed by a single judge of high court in exercise of any other jurisdiction of the high court. it will also be clear from section 4 of the 2005 adhiniyam that sub-section (1) of section 4 repealed the 1981 adhiniyam. therefore by the repeal of the 1981 adhiniyam by section 4(1) of 2005 adhiniyam, appeals under clause 10 of the letters patent against judgment and decree passed by the..........an order of the court as contemplated by section 8 of the hindu minority and guardianship act, 1956. section 8(2) deals with the powers of a natural guardian. section 8(1) and (2) are relevant. these be noticed :8. powers of natural guardian. - (1) the natural guardian of a hindu minor has power, subject to the provisions of this section to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant.(2) the natural guardian shall not without the previous permission of the court, -(a) mortgage or charge, or transfer by sale, gift, exchange, or otherwise, any part of the immovable property of the minor or(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.5. section 8(2) makes it apparent that the natural guardian shall not without the previous permission of the court deal with the immovable property of the minor. it be seen that no permission from the court was obtained and therefore, the order annexure.....

Judgment:

ORDER

T.S. Doabia, J.

1. An order passed under Sections 39 and 40 of the Madhya Pradesh Accommodation Control Act, 1961 (hereinafter referred to as the Act) was subject matter of a writ petition bearing No. 117/89. This came to be decided on 6th of April, 1989. The Division Bench gave positive direction that Shri R. K. Jain who came to occupy the above premises under the Act, would continue to so occupy till his transfer. These premises are located within the town of Vidisha. This Court said in categoric terms that on transfer of Shri R. K. Jain the possession of the premises shall be delivered to the petitioners. It was further stated that all proceedings between the parties under the Act, in regard to the premises in question would stand terminated. Para (ii) and Para (iii) of the order are relevant and be noticed :

(ii) Dr. R. K. Jain, son of Shri M. L. Jain, petitioner in Misc. Petition No. 117/89 and respondent in M. P. No. 368 of 1989, is in occupation of a premises of which Vishal Kumar and Gorav Kumar are owners. They are sons of Girdharilal of Madhavganj, Vidisha are petitioner in M. P. No. 368/89 and respondents in M. P. No. 117/89. Dr. R. K. Jain is continuing in possession of the premises in question on allotment made to him under Section 39 of the Madhya Pradesh Accommodation Control Act, 1961, in virtue of his being a government servant. He shall continue to occupy that during his posting at Vidisha and for another period of one month of order of his transfer from that place. On expiry of that period he shall deliver vacant possession of the house amicably to the landlords, Vishal Kumar and Gorav Kumar or to their authorised agent.

(iii) All proceedings between the parties in regard to the premises in question stand terminated in terms of direction aforesaid. All orders passed in all proceedings by Courts and authorities below stand terminated in terms of above order.

2. The further fact is that Shri R. K. Jain vacated the premises on 16th of August 1991. Thereafter, a fresh order appears to have been passed with a view to allot the premises to Shri Santosh Kumar Dubey, Town Inspector, Vidisha. It is this order, which is being impugned in the present petition inter alia on the following grounds :

(i) that the order of allotment Annexure P/l is in violation of the verdict of this Court in writ petition No. 117/89;

(ii) the procedure indicated in Section 39 of the Act has not been followed.

3. Before proceeding further it would be apt to notice, Section 39(1) of the Act. It reads as under :

39. Control of Vetting. - (1) The Collector or such other Officer not - below the rank of a Deputy Collector as may be authorised by him in this behalf (hereinafter referred to in this Chapter as the authorised officer) may, on his own motion or on application made to him in this behalf, by general or special order, require a landlord to give information in writing (within such time as may be specified therein) of accommodation which has fallen vacant or is likely to fall vacant and also require him to let or not to let such accommodation except in accordance with such order as he may give in accordance with the provisions of this Chapter.

4. It be seen that there is nothing on record to indicate that the procedure indicated in Section 39 was followed or not. Steps mentioned in Section 39(1) have not been taken. Apart from this, it be seen that the petitioners are minors. An assertion has been made in the writ petition that their guardian was illegally detained in the Kotwali. The relevant averments are made in para 10 of the petition. No doubt, these averments have been denied, but facts as in existence cannot be ignored. On 16th of August, 1991, Shri R. K. Jain vacated the premises. Thereafter on 19th of August, 1991 another fresh order was passed allotting the accommodation to Santosh Kumar Dubey. Within this short period of 3 days it was not possible to comply with the order passed by this Court and also Section 39(1) of the Act. There is no semblance of following any procedure. Apart from this as the property of the minors was being dealt with it was essential to have an order of the Court as contemplated by Section 8 of the Hindu Minority and Guardianship Act, 1956. Section 8(2) deals with the powers of a natural guardian. Section 8(1) and (2) are relevant. These be noticed :

8. Powers of natural guardian. - (1) The natural guardian of a Hindu minor has power, subject to the provisions of this section to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant.

(2) The natural guardian shall not without the previous permission of the Court, -

(a) mortgage or charge, or transfer by sale, gift, exchange, or otherwise, any part of the immovable property of the minor or

(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.

5. Section 8(2) makes it apparent that the natural guardian shall not without the previous permission of the Court deal with the immovable property of the minor. It be seen that no permission from the Court was obtained and therefore, the Order Annexure P/l being passed in violation of the aforementioned provisions is liable to be quashed on this additional ground also. It is accordingly quashed. The vacant possession of the accommodation to be handed over to the petitioner forthwith.

Security if deposited be refunded.