WINIFRED ROSS Vs. IVY FONSECA

JUDGEMENT

(1.) 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 S. 13-A1 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.

(2.) 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 Nov. 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 verandah. 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 Sec. 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:

(3.) Immediately after the gift dead 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 13-A1 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 Nov. 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 13-Al 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.