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PETITIONER: MRS. WINIFRED ROSS & ANR.

       Vs.

RESPONDENT: MRS. IVY FONSECA & ORS.

DATE OF JUDGMENT07/12/1983

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) MISRA, R.B. (J)

CITATION:  1984 AIR  458            1984 SCR  (1)1005  1984 SCC  (1) 288        1983 SCALE  (2)900  CITATOR INFO :  E          1984 SC 786  (3)

ACT:      Bombay Rents,  Hotel and  Lodging House  Rates  Control Act, 1947-S.  13A1- Whether an ex-member of armed forces who acquires title  to property after his retirement is entitled to recover possession from tenant under s. 13A 1 ?

HEADNOTE:      The plaintiff  who was  a member of the armed forces of the Union  had  retired  from  service  in  1967.  The  suit property was a part of the property gifted by his mother-in- law to  his wife  in 1976,  which in turn had been gifted in his favour  in 1977,  probably with  the  object  of  taking advantage of  s. 13A1 of the Bombay Rents, Hotel and Lodging House Rates  Control Act,  1947 which had been introduced in the Act  by way  of an amendment made in 1975. The plaintiff filed the  suit under  s.13A1 for  recovery of possession of the suit  property from the defendant who had been occupying the same for a number of years and in the course of the suit produced a  certificate issued by the Army Officer concerned as required  by that  section The  suit was  decreed by  the trial court  and the defendant’s appeal against the same was turned down  by the  District Judge  whereupon the defendant filed a petition under Arts. 226 and 227 of the Constitution which was  allowed. The  High Court  dismissed the  suit for eviction holding that the plaintiff was not entitled to file the suit  under s.13A1  as he had acquired the premises long after he  had retired  from service and that his requirement was not bona fide even for purposes of granting relief under s. 13(1) (g).      Dismissing the appeal, ^      HELD: Section  13A1 of  the  Bombay  Rents,  Hotel  and Lodging House Rates Control Act, 1947 has been introduced in the Act  to enable  members of  the armed  forces  who  have leased out  their buildings  when they  are  in  service  to recover quickly  possession of  such buildings  without  the restrictions contained in the other parts of the Act, either when they  are still in service, or on their retirement, for their use  and occupation  or for  the use and occupation of the members  of their  family. An  analysis of  cl.  (a)  of

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s.13A1 shows that the person who wishes to claim the benefit of that  section should  be a landlord of the premises while he is  a member of the armed forces of the Union and that he may recover  possession of  the premises  on the ground that the premises are bona fide required by him for occupation by himself or any member of his family on the production of the required certificate  either while he is still in service or after his  retirement. The  essential requirement is that he should have leased out the building while he was a member of the armed forces. His 1006 widow can  also recover  the premises of which she is or has become the  landlord under cl. (b) subject to fulfillment of the conditions.  Having regard to the object and purposes of the Act  and in particular of s.13A1 it is difficult to hold that s.  13A1 can be availed of by an ex-member of the armed forces to  recover from  a tenant  possession of  a building which he acquires after his retirement. [1011B-D]      A  liberal   construction  of   s.13A1   would   enable unscrupulous landlords  who cannot  get rid  of  tenants  to transfer their  premises to  ex-military men, as it has been done in  this case,  in order  to avil of the benefit of the provision with  a private  arrangement between  them.  Since such an  interpretation is likely to expose the provision to a successful  challenge under Art. 14 of the Constitution it has to  be read  down as  conferring benefit  only on  those members of  the armed  forces  who  were  landlords  of  the premises in  question while they were in service even though they may  avail of it after their retirement. [1012B; 1014G- H]      [The Court refrained from expressing any opinion on the question whether  a member  or a retired member of the armed forces who  acquire title  to a building which is already in the  occupation  of  a  tenant  by  inheritance,  partition, transfer or  otherwise and  thus becomes the landlord of the building while he is a member of the armed forces, can avail of the remedy against such tenant under s. 13A1.] [1015C-D]      Sushila Bai  Vasudev Jaeel  v.  M.  S.  Dhillon  [1979] Maharashtra Law  Journal 125; and Jyotish Ranjan Chakrabarti v. N. K. Mitra, [1983] 1 R.C.J. 223 approved.      Nihal Chand v. Kalyan Chand, [1978] 2 S.C.R. 183; B. N. Mutto  &   Anr.  v.   T.  K.   Nandi  [1979]  2  S.C.R.  409 distinguished.      In the  instant case, the plaintiff was not entitled to succeed even  on the  basis of  s. 13(1) (g) of the Act. The High Court  was right  in arriving  at the  finding that the plaintiff had  not established that he was really in need of the building. [1015 D]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1796 of 1982.      From the  Judgment and  Order dated 24th April, 1981 of the High  Court of  Bombay in  Special Civil Application No. 3025 of 1978.      G.L. Sanghi,  C.N.  Murty  and  R.  Vasudevan  for  the Appellants.      T.S. Krishnamoorthy  Iyer and  R.  Nagaratnam  for  the Respondent No. 1. 1007      The Judgment of the Court was delivered by      VENKATARAMIAH,   J.    The   principal   question   for consideration in  this appeal  by special leave is whether a

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person who  was formerly  a member  of the  armed forces can recover possession  of a  building which was acquired by him after he  had retired from the armed forces under section 13 A 1  of the  Bombay Rents,  Hotel and  Lodging  House  Rates Control Act, 1947 (Act No. 57 of 1947) (hereinafter referred to as  ‘the Act’) for occupation by himself or any member of his family.      The plaintiff  Lt. Col.  T.E. Ross was formerly serving as a  member of  the Indian  Army and  he retired  from  the military service in the year 1967. The property of which the suit building  forms  a  part  originally  belonged  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 out-houses.  The  defendant  has  been  a tenant in one of those out-houses for a number of years. The said premises consisted of two rooms and a varandah. On June 6, 1977,  Mrs. Winifred Ross gifted the portion in which the defendant  was  residing  as  a  tenant  in  favour  of  the plaintiff. The remaining part of the property acquired under the gift deed executed by the mother-in-law of the plaintiff continued in  the occupation of Mrs. Winifred Ross. The gift of only the portion of the property in the occupation of the defendant appears  to have  been made  with  the  object  of taking advantage  of section  13 A1  of the  Act  which  was introduced by  way of  an amendment  of  the  Act  in  1975. Section 13 A1 of the Act reads thus:           "13A1. Notwithstanding  anything contained in this      Act (a) a landlord, who is a member of the armed forces      of the  Union, or  who was  such  member  and  is  duly      retired (which term shall include premature retirement)      shall  be   entitled  to   recover  possession  of  any      premises, on the ground that the premises are bona fide      required by him for occupation by himself or any member      of his  family (which  term shall  include a  parent or      other  relation   ordinarily  residing   with  him  and      dependent on  him); and  the Court  shall pass a decree      for eviction  on such  ground if  the landlord,  at the      hearing of the suit, produces a certi- 1008      ficate signed  by  the  Head  of  his  Service  or  his      Commanding Officer to the effect that-           (i)  he is  presently a member of the armed forces                of the Union or he was such member and is now                a retired ex-serviceman;           (ii) he  does   not  possess  any  other  suitable                residence in  the local  area where he or the                members of his family can reside;           (b)   where a  member of  the armed  forces of the      Union dies  while in  service or  such member  is  duly      retired as  stated above  and dies within five years of      his retirement  his widow, who is or becomes a landlord      of  any   premises,  shall   be  entitled   to  recover      possession of  such premises,  on the  ground that  the      premises are  bona fide  required by her for occupation      by herself  or any  member of  her family  (which  term      shall include  her or  her husband’s  parent  or  other      relation ordinarily  residing with  her); and the Court      shall pass  a decree  for eviction  on such  ground, if      such widow,  at the  hearing of  the suit,  produces  a      certificate signed  by the  Area or  Sub-Area Commander      within whose  jurisdiction the premises are situated to      the effect that-           (i)  she is  a widow  of a  deceased member of the                armed forces as aforesaid;

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         (ii) she  does  not  possess  any  other  suitable                residence in  the local area where she or the                members of her family can reside.           Explanation 1.-  For the purposes of clause (a) of      this  section,   the  expression   "the  Head  of  this      Service", in  the case  of officers  retired  from  the      Indian Army includes the area Commander, in the case of      officers retired from the Indian Navy includes the Flag      Officer Commanding-in-Chief, Western Naval Command, and      in the  case of  officers retired  from the  Indian Air      Force includes the Station Commander. 1009           Explanation 2.-  For the purposes of this section,      any certificate  granted thereunder shall be conclusive      evidence of the facts stated therein."      Immediately after  the gift  deed was  executed in  his favour, the  plaintiff issued  a notice  to the defendant on June  14,  1977  terminating  the  tenancy  and  asking  the defendant to  vacate the  premises at the end of July, 1977. Then he filed the Civil Suit No. 2131 of 1977 on the file of the Second  Additional Judge,  Small Cause  Court, Pune  for recovery of possession of the premises under section 13A1 of the Act.  He also  produced in  the course  of  the  suit  a certificate issued by the Army Officer concerned as required by that  section. The plaintiff claimed that he required the premises for  his own  use and  occupation to stay alongwith his wife  and that he had no premises of his own in Pune for his residence.  The defendant  contested the  suit. But  the suit was  decreed by  the trial  court on March 18, 1978 and the defendant  was directed  to deliver  possession  of  the premises within  one month  from the  date  of  signing  the decree. The  defendant filed  an appeal  against that decree before the  District Judge,  Pune in Civil Appeal No. 228 of 1978. That  appeal  was  dismissed  on  November  15,  1978. Against the  decree passed in the appeal the defendant filed a petition  under Articles  226 and  227 of the Constitution before the High Court of Bombay in Special Civil Application No. 3025  of 1978.  During the pendency of the said petition the  plaintiff  died  and  his  legal  representatives  were brought on  record. The High Court allowed the said petition and dismissed  the suit  for eviction.  The High  Court held that the  plaintiff was  not entitled to file the suit under section 13A1 of the Act as he had acquired the premises long after he  had retired  from the service of the army and that his requirement  also was not bona fide even for purposes of granting relief  under section  13(1) (g).  This  appeal  by special leave  is filed  by the legal representatives of the plaintiff against the judgment of the High Court.      The first  question which  arises for  consideration is whether the plaintiff who had acquired title to the premises in question  and became  its landlord  after he  had retired from the  service of  the Army  could maintain  the petition under section  13A1. The  object  of  introducing  the  said section into  the Act  is  contained  in  the  Statement  of Objects and Reasons annexed to the amending Bill which later on was passed by the State Legislature. It reads: 1010           "Defence  Services   Personnel   are   liable   to      transfers and to be stationed in different parts of the      country. They  are often posted at non-family stations.      Some of these personnel, who possess their own premises      either  in   their  home   towns  or   elsewhere   have      necessarily  to   hire  them   out  to   other  persons      temporarily while  they are  away on  duty. It has been      represented to  the State  Government by  the  military

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    authorities that  on their  retirement or  transfer  to      non-family  stations   the   serving   and   ex-service      personnel  find   it  extremely   difficult  to  regain      possession of  their premises  which they badly require      for personal  occupation  permanently  or  for  housing      their families  for the  duration of  their posting  at      non-family stations.  In case  of death  of  a  service      personnel while  in  service  or  death  of  ex-service      personnel shortly  after the retirement, the widow also      finds it  extremely difficult  to regain  possession of      their  premises   for  her   personal   occupation   or      occupation of her family.      2.   The cases  of Defence  Services Personnel  due  to           their special obligations and disabilities do need           different treatment  from that  accorded to  other           landlords and in fact special provisions have been           made for  them in  some  of  the  States,  whereby           processes for  each personnel to regain possession           of their  premises have  been simplified  and made           more effective.      3.   It is  considered  necessary  to  make  a  special           provision in  the Bombay  Rents, Hotel and Lodging           House Rates  Control Act,  1947 to enable a member           or retired member of the armed forces of the Union           or a  widow of  such a  member who  dies while  in           service, or  who dies  within five  years  of  his           retirement,  to   regain   possession   of   their           premises, when  bona fide  required for occupation           by them  or  members  of  their  families  and  to           provide that  the Court  shall be  bound to pass a           decree for  eviction on such ground if such member           or widow, as landlord, produces, at the hearing of           the suit,  the necessary certificate signed by the           Head of  his Service  or His Commanding Officer or           the Area or Sub-Area 1011           Commander within  whose jurisdiction  the premises           are situated.           The Bill is intended to achieve these objects."      The object  of section  13A1 of  the  Act  is  quite  a laudable one. It is introduced in order to enable members of the armed  forces who  have leased  out their buildings when they are  in service  to recover  quickly possession of such buildings without  the restrictions  contained in  the other parts of the Act either when they are still in service or on their retirement for their use and occupation or for the use and occupation  of the  members of  their family.  Even  the widows of  such landlords  may under  clause (b)  of section 13A1 can  recover  possession  of  such  buildings  if  they satisfied the  conditions mentioned  therein. An analysis of clause (a)  of section 13A1 shows that the person who wishes to claim the benefit of that section should be a landlord of the premises while he is a member of the armed forces of the Union and  that he may recover possession of the premises on the ground  that the  premises are bona fide required by him for occupation by himself or any member of his family on the production of  the required  certificate either  while he is still in  service or  after his  retirement.  The  essential requirement is  that he  should have leased out the building while he  was a  member of  the armed  forces. His widow can also recover  the premises of which she is or has become the landlord under  clause (b)  subject to  fulfillment  of  the conditions. Having  regard to the object and purposes of the Act and  in particular  section 13A1 it is difficult to hold that section  13A1 can  be availed of by an ex-member of the

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armed forces  to recover  from  a  tenant  possession  of  a building which  he acquires after his retirement. Acceptance of this  argument will  expose the  very section 13A1 of the Act to  a successful challenge on the ground of violation of Article 14  of the  Constitution for  if  that  were  so,  a retired military  officer who  has no  house of  his own can purchase any  building in  the occupation  of a tenant after his retirement,  successfully evict a tenant living in it on the ground  that he needs it for his use, then sell it for a fancy price and again because he has no house of his own, he can again  acquire another  building and deal with it in the same way.  There appears  to be no restriction on the number of times  he can  do so.  It was argued that he would not be able to  get the  requisite certificate  under the  Act more than once.  A reading  of section 13A1 of the Act shows that the certificate  should show  that the  person concerned has been a member of the armed 1012 forces and  that he  does not  possess  any  other  suitable residence in  the local  area where  he or  members  of  his family can  reside. Those  conditions  being  satisfied  the certificate cannot  be refused.  A liberal  construction  of section 13A1 of the Act as it is being pressed upon us would also enable  unscrupulous landlords  who cannot  get rid  of tenants to transfer their premises to ex-military men, as it has been  done in this case in order to avail of the benefit of the said section with a private arrangement between them. It is  also possible  that a person who has retired from the armed forces  may after  retirement  lease  out  a  premises belonging to  him in  favour of  a tenant  and then seek his eviction at  his will under section 13A1 of the Act. In fact the facts involved in the case of Sushilabai Vasudeo Jaeel & Ors. v.  M. S.  Dhillon &  Ors.(1) were similar to the above illustration. In  that case  the plaintiff  was a person who had  been  discharged  from  the  army  in  the  year  1946. Thereafter he  was working in the Railways. He had let out a premises belonging  to him in 1957. The High Court of Bombay held that  he could  not avail  himself of  the  benefit  of section 13A1  of the  Act as he had not let out the building while he  was in the army. The High Court found that section 13A1 of  the Act did not govern the case of a person who had retired long  back from  the armed  forces and was gainfully employed elsewhere  and while  so employed  had let  out his premises with open eyes. We fully endorse this view.      In another  case Jyotish  Ranjan  Chakrabarti  v.  N.K. Mitra(2) decided  by the  Calcutta High  Court  a  provision similar  to   section  13A1   of  the   Act  came   up   for consideration. That  provision was  section 29B  of the West Bengal Premises  Tenancy Act,  1956, the  material  part  of which read as follows:           ‘29B. (1)  No  Civil  Court  shall  entertain  any      application............................ by  a  landlord      who is  retired member  of the  naval, military  or air      force of  the Union  of India  or will  retire within a      period of  less than  one year  as such member, for the      recovery of  possession of  any premises  on the ground      specified in  clause (ff) of sub-section (1) of section      13 but such application shall be 1013      dealt with  by the  Controller in  accordance with  the      procedure specified in this section.      ... ... .... ............ .......... ............ .....      The  above  provision  conferred  a  right  to  recover possession of  premises from a tenant on a retired member of the armed  forces or  a member  retiring within  a period of

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less than  one year  from the armed forces who is a landlord and is  in need  of the  premises at  or about  the time  of retirement by  resorting to  a  summary  remedy.  There  the landlord had  retired from  the armed  forces in 1970 but he had acquired  title to the promises in question in 1979. The High Court  of Calcutta  held that  he was  not entitled  to claim the benefit of section 29B of the West Bengal Premises Tenancy Act,  1956 on  the ground that the provision applied only to  those persons  who were  landlords at  the time  of their retirement.      The appellants  cannot  derive  any  support  from  the decision of  this Court  in  Nihal  Chand  v.  Kalyan  Chand Jain(1) In  that case  section  14A(1)  of  the  Delhi  Rent Control Act,  1958 arose  for  consideration.  That  section provides that  where  a  landlord  who  being  a  person  in occupation of  any residential  premises allotted  to him by the  Central   Government  is   required  to   vacate   such residential accommodation  or in  default to  incur  certain obligations  on  the  ground  that  he  owns  in  the  Union Territory of Delhi a residential accommodation either in his own name or in the name of his wife or dependent child there shall accrue  on and  from the  date of  such order  to such landlord notwithstanding  anything contained  in  the  Delhi Rent  Control   Act,  1958  a  right  to  recover  immediate possession of  any premises  let out by him. The landlord in that case  who was  a Central  Government servant  had  been allotted a  residential premises  by the Central Government. In accordance  with a  general order  issued pursuant to the Central Government’s  decision dated  September 9,  1975,  a notice was  served on  the landlord  on September  30,  1975 which was  much before  his retirement  which took  place on November 30,  1975 to vacate the premises allotted to him by the Government  as he  had his  own accommodation  in  Delhi which he  had leased out and that if he did not do so he had to pay penal rent for the Government premises. When he filed a suit  for eviction  under section 14A(1) of the Delhi Rent Control Act, 1958 he had 1014 ceased  to   be  a  Government  servant  by  reason  of  his retirement. The  tenant contended  that he  could not  avail himself of the benefit of section 14A(1) as he had ceased to be a  Government servant. This Court negatived the said plea holding that the cause of action arose on September 30, 1975 when he  was served with the notice by the Government and on that date  he was very much in service even though the Court observed that  there was  some force  in the  argument  that section 14A(1)  of the  Delhi Rent  Control  Act,  1958  was intended for  the benefit  of persons who were in Government service.      The judgment of this Court in B.N. Mutto & Anr. v. T.K. Nandi(1) which  again arose  under section  14A of the Delhi Rent Control  Act, 1958 was also relied on by the appellants in support of the argument that as the expression ‘landlord’ used in  section 13A1  of  the  Act  was  capable  of  being construed as including within its scope even ex-military men who may  have become  landlords after  their retirement, the limited meaning  given to it in the Statement of Objects and Reasons should  not be  given to  it and  that section  13A1 should, therefore,  be interpreted  without reference to the Statement of  Objects and  Reasons. In  the above  decision, this Court  held that  while the original object of enacting section 14A  of the  Delhi Rent  Control Act,  1958  was  to confer benefit  on Government servants only, later on it was thought fit  to confer  a similar benefit also on others who were in  possession of  Government buildings  and  who  were

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being asked to vacate them on the ground that they had their own accommodation  in the  Union Territory  of Delhi. In the instant case there is no ground to presume that section 13A1 of the  Act was  intended to  confer benefit  on a  class of persons wider than the class referred to in the Statement of Objects and  Reasons, that is, on all retired members of the armed forces  irrespective of  the fact  whether  they  were landlords while  they were  in service  or not.  There is no valid justification  to give  such a  wide  meaning  to  the section.      Since a  liberal interpretation  or section 13A1 of the Act is  likely to expose it to a successful challenge on the basis of  Article 14  of the Constitution, it has to be read down as  conferring benefit  only on  those members  of  the armed forces  who were landlords of the premises in question while they were in service even though they may 1015 avail of  it after  their retirement.  Such  a  construction would save  it from  the criticism that it is discriminatory and also  would advance  the object  of enacting it, namely, that members  of the  armed forces should not while they are in service  feel worried  about the  difficulties of  a long drawn out litigation when they wish to get back the premises which they  have leased out during their service. Persons in the position  of the  landlord in  the present  case cannot, therefore, maintain  a suit  under section  13A1 of the Act. The High  Court was, therefore, right in rejecting the above contention.      We, however,  wish to  clarify that  in  this  case  we express no  opinion on  the question  whether a  member or a retired member  of the  armed forces who acquires title to a building which  is already  in the occupation of a tenant by inheritance,  partition,  transfer  or  otherwise  and  thus becomes the landlord of the building while he is a member of the armed  forces, can  avail of  the  remedy  against  such tenant under section 13A1 of the Act.      Even on  the basis  of section 13(1)(g) of the Act, the plaintiff is  not entitled  to succeed  in view of the clear finding recorded by the High Court. We have gone through the reasons given  by the  High Court to reverse the decision of the District  Court on the above question. We agree that the plaintiff has  not established that he was really in need of the building. The finding of the High Court on this question also does not call for any interference.      For the  foregoing reasons,  the appeal  fails  and  is hereby dismissed. No costs. H.L.C.                                    Appeal dismissed. 1016