1. This is an appeal filed under Section 20 of the RDDBFI Act, 1993.
The factual matrix of this appeal is that the State Bank of Indore-respondent advanced by way of financial assistance to the respondent Chirag Metal Ltd., of which Bal Krishna Gayke is the Director. The money was not paid. Thereafter respondent-Bank filed a civil suit for recovery of money in the District Court, Indore, from where it was transferred to the D.R.T. after implementation of the Act of 1993 and this case registered as T.A. No. 892/1998.
2. The Recovery Officer on the basis of recovery certificate proceeded for the auction of the mortgaged property, which is the house involved in this appeal. Present appellant-Ashok Jain is the auction purchaser.
He deposited the amount of auction money. Recovery Officer by an order dated 10th June, 2005 disposed of the objection filed by Milind @ Raju Chandwaskar and another, who claimed before the Recovery Officer that they had taken on rent western portion of the first floor of the house in question, which included two rooms, one hall and staircase for nonresidential purposes. It was alleged in the objection, that above portion of the house in question was taken in the year 1962 by their father Madhukar Rao Chandwaskar on rent and after death of their father, they were continuing as tenants running their business in the said accommodation. They filed before the Recovery Officer the entries of assessment of Nagar Nigam, Indore, a hand written note purported to be written for giving receipt of rent, electric and phone bills and cutting of the newspapers. They claimed that they were continuing in the possession of the said portion of the disputed house since long, therefore, the auction purchaser should be handed over symbolic possession of the above rented portion. The above objection was replied by auction purchaser i.e. the present appellant praying for handing over the position of the above portion of the disputed house or the basis of auction and issuance of sales certificate in his favour. He challenged the possession of objector and pleaded that the objectors had no possession over any portion of the disputed house.
3. The Recovery Officer after considering the evidence brought before him went through the record in the light of arguments advanced from the side of the parties, directed to hand over the symbolic possession of the aforesaid portion admitting objectors to be tenant and issued a direction to the Advocate Commissioner to comply with the order with the help of police.
3.1 Feeling aggrieved against this order of Recovery Officer, Appeal No. 19/05 was filed under Section 30 of the said Act before the D.R.T., Jabalpur, who passed an order on 12th December, 2005. In the meantime, Writ Petition No. 1629/05 was filed by the respondent No. 1-Mahesh Mittal against the State Bank of Indore and 4 others in the Hon'ble High Court of Madhya Pradesh Bench at Indore. The Hon'ble High Court disposed of that writ petition by issuing a direction on 13th September, 2005 to decide the appeal within three months in the light of its earlier order dated 19th February, 2003 passed in Writ Petition No. 1562/02 Surendra Singh v. Recovery Officer II (2003) BC 428, directed the parties to comply with the direction contained in para 17 of that order and also directed to decide the appeal within three months in the light of above directions contained in the case of Surendra Singh v. Recovery Officer.
4. On the basis of above direction of the Hon'ble High Court, learned Presiding Officer, D.R.T., Jabalpur decided the above appeal on 12th February, 2005 holding that Rule 40 of the Income-tax Act, Certificate (Procedural) Rules give protection to lawful tenant against physical dispossession but symbolic possession was permissible in favour of auction purchaser. He decided the issue Nos. 1 and 2 remitted by the Hon'ble High Court in negative and thereafter decided the issue Nos. 3 and 4 remitted by the Hon'ble High Court holding that the appellant/objector was a lawful tenant of Chirag Metal Ltd. and was in possession of the shop. Therefore, issue No. 3 was decided in negative and issue No. 4 was decided in affirmative holding that the objector being lawful tenant was entitled to replace the possession of shop restoring status quo ante. Against this judgment of D.R.T., Jabalpur, the present appeal has been filed.
5. I have heard the learned Counsel for the appellant and learned Counsel for the respondent No. 1 and have also gone through material available on the record. Learned Counsel for the appellant has argued before this Tribunal that the learned Presiding Officer, D.R.T., Jabalpur has committed error in coming to the conclusion with regard to the issue Nos. 1 and 3 remitted by the Hon'ble High Court. He has also disputed the finding recorded by the D.R.T. on the point of tenancy of the respondent No. 1 and his possession over the property in question.
His contention is that the D.R.A.T. has no power to determine the tenancy under the provisions of RDDBFI Act, 1993. According to his submissions, neither the Recovery Officer nor the D.R.T. has any power in the existing RDDBFI Act, 1993 to give finding on such issues such as tenancy and possession connected with the tenancy. He has led this Tribunal through the findings recorded by the learned Presiding Officer, D.R.T., Jabalpur and has argued that at the most Recovery Officer could decide the matter of eviction of the person resisting handing over of the possession. He has also vehemently argued that the paper with regard to alleged tenancy available as at page No. 51 of the paper book is dated 15th July, 2001 whereas the demand notice Annexure A-2 (at page No. 22) of the paper book) is dated 16th July, 2001.
According to the learned Counsel for the appellant, the order of attachment of the property in question is Annexure No. 3 (page Nos. 23 and 24) of the paper book it is argued from the side of the appellant that the proceedings for the attachment relate back to the date of demand drawing the attention of the Tribunal towards the papers such as entries of Bank account at page Nos. 53 to 60 of the paper book which is in the form of statement of accounts, page No. 61 of the paper book, copy of the card for inauguration of Anjali Electricals proposed for 8th November, 2001, page No. 62 of the paper book, copy of the entry of Nagar Nigam of the registration of Anjali Electricals as dated 7th April, 2004, page No. 63 of the paper book in the same date, copy of the electric bill and telephone bill filed on behalf of the respondent No. 1 before the Recovery Officer annexed with reply of the respondent to the memo of appeal as Annexure R-2 at page Nos. 13 and 14 and cuttings of newspapers as Annexure R-3. It is vehemently argued from the side of the appellant that no paper in the form of rent receipt or any other evidence for tenancy has been filed. Therefore, according to him it is clear case of collusion between the borrower and respondent No. 1 with a view to the above purchaser to have the possession of the property purchased by the appellant. His further submission is that considering the scope and ambit of provisions of RDDBFI Act, 1993, there was absolutely no power with the Recovery Officer or with the D.R.T. to have considered question of tenancy of the respondent of apart of the disputed accommodation. Against this, submission from the side of the respondent No. 1 before this Tribunal is that the plea of any collusion between the borrower and the respondent No. 1 has nowhere been pleaded by the appellant either before the Recovery Officer or before the D.R.T. Therefore, at this stage of this case, this argument is fallacious. He has also argued pointing out different dates i.e.
date of demand notice 16th July, 2001, date of attachment of the property in question 15th December, 2001, date of auction of the property 23rd April, 2000, date of confirmation of sale 1st July, 2000 and date of issuance of warrant of possession 16th June, 2005 and date of forcible dispossession of the respondent No. 1, 13th July, 2005, after which Writ Petition No. 1629/2005 was filed by the respondent No.1, who was forcibly dispossessed on 13th September, 2005.
6. Having heard Counsel for both the parties and having perused the record, this Tribunal is of the opinion that firstly the matter of tenancy is a question, which cannot be gone into under the provisions of RDDBFI Act, 1993. However, the rules laid down under Schedule II of the Income-tax Procedure for recovery of tax are pari materia with Order 21 Rules 95 and 96. It has been held repeatedly by our Hon'ble Apex Court and Hon'ble High Courts that an objection put by a rank outsider having no connection with judgment debtor, proceedings under Rule 97 of Order 21 of C.P.C. can be resorted to whether the respondent No. 1 is lawful tenant or not is the question to be determined by the competent Civil Court, but the admitted fact remains that the case set up by the respondent before the Recovery Officer is without any cogent proof of creation of tenancy and admittedly now he has been ousted from the accommodation in question on the basis of warrant of possession and if at all above complicated question is of lawful tenancy, it is up to him to file a suit before the appropriate Civil Court for the protection of his right instead of hoping the investigation under the RDDBFI Act, 1993 for the protection of his right. Learned Counsel for the respondent has cited before this Tribunal judgments of Narada Moharana v. Pramila Kumari Dei ; Krishna Ram MahaleAnthony C. Leo v.Nandlal Bal Krishnan ; Abhay Kumar Pandey v. State of Bihar ; Anthony v. K.C. ITTOOP & Sons L.Rs. v. M. Varadappa Naidu (dead) by LRs. , but all these rulings are not at all applicable in the facts and circumstances of this case. Therefore, they are not being considered. Another ruling as reported in A. Stephen Samuel, Proprietor, Industrial Security Agency v. Union of India III (2003) BC 469 (DB), has been cited to argue that the right of a lawful tenant has to be protected by directing to protect the rights of lawful tenant by issuing direction to hand over only symbolic possession of the tenanted accommodation, but not the possession which is not lawful. In this very ruling reliance has been placed on the views of the Hon'ble Apex Court, Brahma Deo Choudhary v. Rishi Kesh Prasad Jaiswal , wherein it has been observed that the possession should be insisted first and the objector may later on move the Court under Order 21 Rule 99 of CPC.In the instant case admittedly the possession has passed on to the auction purchaser. There is nothing on the record in the form of cogent material except some evidence in the form of invitation card, hand written note, vague statement of account of the Bank without disclosing the nature of amount shown to have been gone to the borrower, subsequent electricity bill and telephone bill without an iota of evidence in the form of rent receipt, etc., the law of equity and principle of natural justice require that such a person, who claims to be tenant of the borrower, may be directed to seek relief from appropriate Civil Court, under the circumstances.
7. The result of all the above discussions is that in the opinion of this Tribunal, the learned D.R.T., Jabalpur has committed error in giving finding with regard to tenancy and holding that the order for ouster of respondent No. 1 could not be passed by the Recovery Officer and he has also wrongly decided the objection i.e. respondent No. 1 is entitled to be replaced in possession of the shop by restoring the status quo ante. With these findings, the appeal deserves to be allowed.
8. Appeal is hereby allowed. The impugned judgment passed by the D.R.T., Jabalpur in Appeal No. 19/2005 on 12th December, 2005 is set aside. No order as to costs.