Mrs. Winifred Ross & ANR Vs. Mrs.
Ivy Fonseca & Ors [1983] INSC 196 (7 December 1983)
VENKATARAMIAH, E.S. (J) 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 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]
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 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 certificate 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;
(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 there under 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 along with 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 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 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 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 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 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.
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