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PETITIONER: DR. D.N. MALHOTRA

       Vs.

RESPONDENT: KARTAR SINGH

DATE OF JUDGMENT29/01/1988

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1988 SCR  (2) 833        1988 SCC  (1) 656  JT 1988 (1)   213        1988 SCALE  (1)223

ACT:      East Punjab  Urban Rent  Restriction  (Amendment)  Act, 1985: Sections  2(hh), 13A  and 18A-’Specified landlord’-Who is-When entitled  to recover possession from tenant-Landlord letting out  premises after  his retirement-Whether entitled to maintain eviction petition under Section 13A.

HEADNOTE: %      The respondent-landlord  filed an  application  in  the Court of  the Rent Controller under Section 13-A of the East Punjab  Rent  Restriction  (Amendment)  Act,  1985,  seeking eviction of the appellant-tenant on the ground of arrears of rent and  for his  own use  and occupation. It was contended that  the   respondent  retired  from  the  service  of  the Government of  India, Ministry  of Defence on 20th May, 1949 and that  his service  was  thereafter  transferred  to  the Ministry of  Rehabilitation from  where he was discharged on 30th November,  1965 on  the abolition  of the Ministry, and that as  he had  no other  house within  the municipality he wanted the house in question for residence. On receiving the summons of the eviction petition the appellant-tenant sought leave to  contest the  application on the ground that he was inducted as  a tenant  in the premises in the year 1968, and that Section 13-A of the Act did not entitle the landlord to maintain the eviction petition.      The Rent Controller after recording the evidence of the parties negatived  the contention of the tenant, allowed the application, and  directed the tenant to vacate the premises within one month from the date of the order.      The appellant  preferred a  revision application  under Section 18-A of the Act, but the High Court holding that the respondent being a ’specified landlord’ at the relevant time i.e. within one year of the date of commencement of the East Punjab Urban  Rent Restriction  (Amendment)  Act,  1985  was entitled to  get an order of eviction of the tenant from his house, upheld  the eviction order of the Rent Controller and dismissed the revision petition.      The tenant appealed to this Court by special leave. 834      Allowing the appeal, ^

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    HELD: 1.  The respondent-landlord  did not  satisfy the basic requirement  of section 2(hh) of the East Punjab Urban Rent Restriction  (Amendment) Act,  1985 and  so he  was not competent to  maintain the application under section 13-A of the said Act. [842C]      2.  Section   13-A  of   the  East  Punjab  Urban  Rent Restriction (Amendment)  Act, 1985  in clear  terms  enjoins that: "Where  a specified  landlord at  any time  within one year prior  to or  within one  year after  the date  of  his retirement or  after his  retirement but  within one year of the  date   of  commencement   of  the  said  Act  makes  an application to  recover the  possession of  the building  or scheduled building, the Controller will direct the tenant to deliver possession  of the  said house to him". Therefore to be entitled  to have  the benefit of Section 13-A of the Act the  landlord-respondent  will  have  to  fulfil  the  first qualification i.e.  he  must  be  a  specified  landlord  in respect of  the  house  in  question  on  the  date  of  his retirement from  the service  of the  Union  i.e.  in  1963. [840F-H]      3. To get the benefit of the summary procedure provided in Section  13-A  the  ex-servicemen  must  be  a  specified landlord at  the time  of his retirement from service of the Union as provided in Section 2(hh). [842B]      4. The respondent-landlord in the instant case, retired from the  service of  the Union  in 1965,  and the  house in question was  let out  to the  appellant-tenant in 1968. The respondent was  thus not a landlord qua the premises and the tenant, on  the date of his discharge from service entitling him to avail of the benefit of the provisions of Section 13- A of the East Punjab Act. [842C-D]      5. The  Rent Controller  has not  at all considered the question whether  the landlord  is a specified landlord, but simply held that the landlord was discharged from service on the abolition  of the Department of Rehabilitation and so he was covered  under the  definition of  specified landlord as given under  section 2(hh)  of the  Act. The Single Judge of the High Court without considering the provisions of Section 2(hh) of the Act held that the application under Section 13- A by  a specified landlord seeking ejectment of a tenant was competent within one year of the commencement of the amended Act even  if there  existed no  relationship of the landlord and tenant  on the  date of  the retirement of the specified landlord. This view is on the face of it erroneous. The 835 judgments and  orders of  the Courts  below are  set  aside. [841F-H; 842A-B, D] A      Sohan Singh v. Dhan Raj Sharma, [l983] 2 R.L.R. 465 and Bhanu Aththayya  v. Comdr.  Kaushal &  Ors., [1979] 2 R.C.J. 338, approved.      Mrs. Winifred  Ross and  Anr. v.  Mrs. Ivy  Fonseca and Ors., A.I.R. 1984 SC 458, distinguished.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2206 of 1987.      From the  Judgment and order dated 4.2.1987 of the High Court of  Punjab and  Haryana in Civil Revisions No. 2371 of 1986.      A.S.  Sohal,   R.K.  Talwar   and  P.N.  Puri  for  the Appellant.      S.M. Sarin and R.C. Misra for the Respondent.      The Judgment of the Court was delivered by

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    RAY, J.  This is an appeal by special leave against the judgment and order passed in Civil Revision No. 2371 of 1986 dismissing the  revision petition and upholding the order of eviction of the tenant appellant from the house in question.      The landlord,  Kartar Singh filed an application in the court of  Rent Controller,  Kapurthala under Section 13-A of the East  Punjab Urban  Rent  Restriction  (Amendment)  Act, 1985, stating  inter alia that Dr. D.N. Malhotra is a tenant in  respect   of  his  house  No.  694-A  within  Kapurthala Municipality; that  he was  in arrears  of rent  since  22nd December, 1984;  that the  landlord retired from the service of Government  of India,  Ministry of  Defence on  20th May, 1949 ’and  his service  was thereafter  transferred  to  the Ministry of  Rehabilitation from  where he was discharged on 30th November,  1965 on  the abolition of the Ministry; that he had  no other  house within  the Municipality and that he wanted the  house in  question  to  reside  and  prayed  for ejectment of the tenant-appellant.      The tenant-appellant  on receiving the summons filed an affidavit  seeking   leave  of  the  Court  to  contest  the application stating  inter alia  that he  was inducted  as a tenant in  the premises  in question  in the year 1968; that the petitioner had been letting out the premises in question 836 at different  intervals to  other tenants;  that the present application filed  by the  petitioner-landlord is  mala fide and the  defendant is  entitled to  the leave to contest the application on  the ground that Section 13-A of the said Act does not  entitle the  petitioner to  maintain  the  present petition. The Rent Controller granted leave to the tenant to contest R the petition on the following ground:           Whether the  petitioner is a specified landlord as           defined in  Section 2(hh) of the East Punjab Urban           Rent Restriction (Amendment) Act, 1985.      The petitioner  landlord examined  himself and  he also filed a  certificate issued  to him  by Regional  Settlement Commissioner  who   was  his   appointing  authority.   This certificate was  marked as  Exhibit A-1  in  the  case.  The tenant-respondent  examined  himself  and  stated  that  the petitioner could  not get the benefit of Section 13-A of the said Act as he was not the landlord of the said house either before or  on the date of his retirement from service or the Union i.e.  in 1965, the house being let out to him in 1968. The Rent Controller negatived the contentions of the tenant- respondent and allowed the application directing the tenant- respondent to  vacate the premises within one month from the date of the order.      The tenant-appellant  preferred  an  application  being Civil Revision  No. 2371  of 1986  under Section  18A of the said Act.  The revision case was dismissed by the High Court of Punjab and Haryana holding inter alia that the respondent being a  specified landlord at the relevant time i.e. within one year  of the  date of  commencement of  the East  Punjab Urban  Rent   Restriction  (Amendment)   Act,  1985  (to  be hereinafter referred  to in  short  as  the  said  Act)  was entitled to  get an order of eviction of the tenant from his house. The  order of  the Rent Controller was upheld. It was further held  that the decisions cited at the bar in support of the  contention that  the respondent was not the landlord qua the  tenant-appellant on  or before  his retirement from service, were  not applicable to this case as the provisions of the  Acts dealt  with in  those decisions  were different from provisions of Section 13-A of the said Act.      It is  against this  judgment  and  order  the  instant appeal on special leave has been filed.

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    It is  convenient to  quote the  relevant provisions of the said Act 837 before proceeding  to determine the questions in controversy between A the parties. Sec.2(hh):     ’Specified landlord  means a  person  who  is                entitled to  receive rent  in  respect  of  a                building  on  his  own  account  and  who  is                holding or  has  held  an  appointment  in  a                public service or post in connection with the                affairs of the Union or of a State. Sec. 13-A      Where  a  specified  landlord  at  any  time,                within one  year prior  to or within one year                after the date of his retirement or after his                retirement but within one year of the date of                commencement of  the East  Punjab Urban  Rent                Restriction (Amendment)  Act, 1985, whichever                is later,  applies to  the  Controller  along                with  a   certificate  from   the   authority                competent  to   remove   him   from   service                indicating the date of his retirement and his                affidavit to  the effect that he does not own                and possess  any other suitable accommodation                in the  local area  in which  he intends D to                reside   to   recover   possession   of   his                residential building or scheduled building as                the case may be, for his own occupation there                shall accrue,  on and  from the  date of such                application  to   such  specified   landlord,                notwithstanding anything  contained elsewhere                in this  Act or in any other law for the time                being in  force or in any con- tract (whether                expressed or  implied) custom or usage to the                contrary, a  right to recover immediately the                possession of  such residential  building  or                scheduled building  or any  part or  parts of                such building  if it  is let  out in  part or                parts ...." Sec.18-A       "(1) Every  application  under  Section  13-A                shall be  dealt with  in accordance  with the                procedure specified in this section.                ...................                ...................                (8) No  appeal or  second  appeal  shall  lie                against  an   order  for   the  recovery   of                possession of  any  residential  building  or                scheduled building  made by the Controller in                accordance with  the procedure  specified  in                this Section. 838           Provided that  the High Court may, for the purpose           of satisfying  itself that  an order  made by  the           Controller under this Section is according to law,           call for  the re  cords of  the case and pass such           order in respect thereto as it thinks fit."      In Sohan Singh v. Dhan Raj Sharma, [1983] 2 R.L.R. 465, the question  was whether  the ex-servicemen landlord, Sohan Singh fell  within the  category of landlord as envisaged in Section  13(3A)  of  Haryana  Urban  (Control  of  Rent  and Eviction) Act, 1973 in order to have an order of eviction of the tenant  in a  summary way. Landlord, Sohan Singh retired from Air Force on 3rd March, 1976 and on 17th November, 1978 he purchased  the shop  bearing No.  2454 in  Block No.  II, Patel Road, Ambala. On 2nd February, 1979 an application was made by  him for ejectment of the respondent-tenant from the

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said shop  on the  ground that  he required the same for his personal use  of setting  up his own business therein, under Section 13(3A)  of the Act. Section 13(3A) provides that "in the case  of a  non-residential  building,  a  landlord  who stands retired  or discharged  from the  armed force  of the Union of  India" may  apply within  a period  of three years from the  date of  his retirement  or discharge from service for an  order directing  the tenant  to put  the landlord in possession. It  was held  that the expression landlord would mean a  landlord who  was a  landlord as such qua the tenant and the  premises on the date of his retirement. Sohan Singh who pruchased the disputed shop after his retirement was not landlord of  the shop  on the  date of  his retirement.  The application  for   ejectment  of   tenant  was,   therefore, dismissed.      In Bhanu  Aththayya v.  Comdr. Kaushal & Ors., [1979] 2 R.C.J. 338,  respondent No.  1 who  was in Navy retired from service in  February, 1968.  Respondent Nos. 1 and 2 who are husband and wife owned the flat in question in a building of the Shankar  Mahal Cooperative  Housing Society Ltd. Bombay. On 17th  July, 1972 respondent No. 2, wife of respondent No. 1 both  on her  behalf as  well as  on behalf of her husband gave the  flat on leave and licence basis to the petitioner. On 19th  November, 1975,  the respondent  No.  1  secured  a certificate from  Vice-Admiral Flag  officer, Commanding-in- Chief,  Western  Naval  Command,  under  the  provisions  of Section 13-Al. On 24th November, 1975, respondent Nos. 1 and 2 served  a notice  on the petitioner to quit and vacate. As the petitioner  did not vacate, the respondent No. 1 made an application under  Section 13-Al  of Bombay Rents, Hotel and Lodging House Rates Control Act, (57 of 1947) as amended for an order of his ejectment and for giving him possession of 839 the said  flat. The  application was ultimately dismissed by the High  Court of  Bombay on the ground that petitioner was not a  landlord qua  the tenant and the premises at the time of his  retirement from Navy and as such he could not get an order of  eviction of  the petitioner  tenant from  the suit premises under Section 13-Al.      The  question   whether  a  retired  army  officer  who acquired a building after his retirement can be deemed to be a landlord within the meaning Section 13-Al of Bombay Rents, Hotel and  Lodging House Rates Control Act (57 of 1947) came up for  consideration before  this Court in the case of Mrs. Winifred Ross  and Anr. v. Mrs. Ivy Fonseca and ors., A.I.R. 1984 SC  458 In  this case  one Lt. Col. T.E. Ross who was a member of  the Indian  Army retired from Military service in 1967. The  property of  which the suit building forms a part originally belongs to his mother-in-law, Mrs. Arcene Parera. She gifted  the said property in favour of her daughter Mrs. Winifred Ross,  the wife  of the  plaintiff, on  November 9, 1976. The  property consisted  of  some  outhouses  and  the defendant is  a tenant  in one  of those  out-houses  for  a number of  years. The  said premises  consisted of two rooms and a  verandah. On  June 6, 1977, Mrs. Winifred Ross made a gift of the portion occupied by the defendant as a tenant in favour of  the plaintiff.  The plaintiff thereafter, made an application for eviction of the defendant and for possession of the  said premises  under section  13-Al of the said Act, which was  introduced by  an amendment  made in 1975. It was held by this Court that the plaintiff could not avail of the provisions of  Section 13-Al  to  recover  from  the  tenant possession of  the building  which  he  acquired  after  his retirement. The  word landlord  used in Section 13-Al refers to an  officer of  the armed  forces of the Union, who was a

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landlord either before or on the date of his retirement from the defence  service of  the Union. It has been further held that Section 13-Al can not be liberally interpreted to cover all retired  members of the armed forces irrespective of the fact whether  they were landlords while they were in service or not.  Such a  liberal interpretation  of Section 13-Al is likely to  expose it  to a successful challenge on the basis of Article 14 of the Constitution      In the instant case Section 13 of the East Punjab Urban Rent Restriction  (Amendment) Act  No. 2  of 1985  which was published in  the Pubjab  Gazette Extra-ordinary  dated 16th November, 1985  conferred right on the specified landlord to make application  at any  time within  one year  prior to or within one  year after  the date  of his retirement or after his  retirement   but  within   one  year  of  the  date  of commencement of  the  East  Punjab  Urban  Rent  Restriction (Amendment) 840 Act, 1985,  whichever is later. to the Controller along with a Certificate  from the  Authority competent  to remove  him from service for directing the tenant to give him possession of the  premises. This Section thus confers right on the ex- serviceman who  is a  specified landlord under Section 2(hh) of the said Act to apply after retirement within one year of the commencement  of the  said Act under Section 13-A of the said Act for eviction of the tenant. The respondent-landlord who retired  from the  service of  the Union is the owner of the house  and he  is the landlord at the relevant time i.e. after  his  retirement  within  one  year  of  the  date  of commencement of  the said  Act i.e.  16th November, 1985 qua the tenant  and the premises and the application to the Rent Con troller  was made  for an  order directing  the  tenant- appellant to  give possession  of the  suit house  to him to reside  therein   as  he  had  no  other  house  within  the Municipality. The  respondent in  order to  come within  the definition of specified landlord has to satisfy two things:      (a) he  shall be  a person  who is  entitled to receive      rent in  respect of  the house  in  question  from  the      tenant-appellant at his own account. and      (b) he  is holding  or has  held an  appointment  in  a      public service  or post  in connection with the affairs      of the Union or of State. The petitioner retired from the post of S.D.O. which post he held in  the Rehabilitation Department, Government of India. The petitioner  as appears  from the  statements made in the affidavit of  the appellant  and also  from the  certificate Exhibit-lA filed  by  the  landlord  that  he  retired  from service in  1963 and  the appellant  has been  inducted as a tenant in  respect of  the said  house in 1968. This clearly evinces that  the respondent  was not  a specified  landlord within the  meaning of  Section 2(hh) of the said Act as the appellant was inducted as a tenant after his retirement from the service  of the Union. Section 13-A of East Punjab Urban Rent  Restriction  (Amendment)  Act,  1985  in  clear  terms enjoins that "Where a specified landlord at any time, within one year  prior to  or within one year after the date of his retirement or  after his  retirement but  within one year of the  date   of  commencement   of  the  said  Act  makes  an application  to   recover  possession  of  the  building  or scheduled building, the Controller will direct the tenant to deliver possession  of the  house to  him". Therefore  to be entitled to  have the benefit of Section 13-A of the Act the landlord-respondent  will   have   to   fulfil   the   first qualification i.e.  he  must  be  a  specified  landlord  in respect of  the  house  in  question  on  the  date  of  his

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retirement from  the service  of the Union i.e. in 1963. The landlord, as it appears, has not 841 fulfilled this  requirement in as  after his retirement from service of  the Union  he has  let out  the premises  to the tenant-appellant. It  has been  urged before us on behalf of the  respondent   that  at  the  relevant  time  i.e.  after retirement of the respondent from service within one year of the date  of commencement of the said Act he is the landlord of the  appellant and as such he falls within the definition of Section  2(hh) of the said Act and he becomes a specified landlord. This  submission, in our view, cannot be sustained in as  much as  the words  "specified landlord"  as used  in section 2(hh)  refer to  the person  in service of the Union who is  a landlord  at the  time of  his retirement from the public service or post in connection with the affairs of the Union or  of State.  It cannot  in any manner include an ex- serviceman who  was not  a specified landlord qua the tenant and the  premises on  or before  the date  of his retirement from the service of the Union. This has been very succinctly held by  this Court  in the  case of  Mrs. Winifred Ross and Anr. v.  Mrs. Ivy  Fonseca and  Ors. (supra)  which has been referred to hereinbefore.      On  a   conspectus  of   the  decisions   referred   to hereinbefore more particularly the decision rendered by this Court in  the case  of Mrs. Winifred Ross & Anr. v. Mrs. Ivy Fonseca and ors. (supra) it is well settled that in order to get the  benefit of  eviction of the tenant in a summary way the ex-serviceman  must be  a landlord  qua the  premises as well as  the tenant  at the  time  of  his  retirement  from service. The  ex-serviceman is  not  competent  to  make  an application to  the Rent Controller to get possession of his house by  evicting the  tenant in  a summary  way unless and until he  satisfies the  test that  he is a landlord qua the premises and  the tenant  at the  time of  his retirement or discharge from service.      In the  instant case the Rent Controller has not at all considered  this  question  but  he  simply  held  that  the petitioner was  discharged from  service on the abolition of the Department of Rehabilitation and so he was covered under the definition  of specified landlord as given under section 2(hh) of the Act. The learned Single Judge of the Punjab and Haryana High  Court though  noticed the decision in the case of Bhanu  Aththayya v.  Comdr. Kaushal  and ors. and also in Sohan Singh v. Dhan Raj but without properly considering the provisions of  Section  2(hh)  of  the  Act  held  that  the application under  section 13-A  of the  Act by  a specified landlord seeking  ejectment of a tenant was competent within one year  of the  commencement of  the amended  Act even  if there existed  no relationship of landlord and tenant on the date of  retirement of  the specified  landlord. The learned Single Judge also 842 observed that  as there  was no  provision for  a  specified landlord after  his retirement  to make  an application  for ejectment of  his tenant  within one year after commencement of the  amended Act as occurs in the Punjab Act the ratio of the decision in those cases cited before the Court would not apply.  This  view  of  the  learned  Single  Judge  in  our considered opinion  is on  the face of it erroneous. We have stated hereinbefore  that to  get the benefit of the summary procedure provided  in Section 13-A of the said Act, the ex- serviceman must  be a  specified landlord at the time of his retirement from  service of the Union as provided in Section 2(hh) of  the said  Act. The respondent did not satisfy this

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basic requirement  of Section 2(hh) of the Act and so he was not competent  to maintain an application under Section 13-A of the  said Act. It is obvious that the respondent landlord retired from  the service of the Union in 1965 and the house in question was let out to the tenant-appellant in 1968. The respondent was  not a  landlord qua  the  premises  and  the tenant on  the date  of his discharge from service entitling him to avail of the benefit of the provisions of Section 13- A of the Punjab Act.      For the  reasons aforesaid  we allow the appeal and set aside the  judgment and  orders of  the courts below. In the facts and  circumstances of the case, there will be no order as to costs. N.V.K.                                       Appeal allowed. 843