SUSHILABAI VASUDEO JAEEL Vs. M.S. DILLON

JUDGEMENT

(1.) THE petitioners in this case are tenants of a portion of a house bearing No. 454 situate in Shaniwar Peth of Pune city. Respondents Nos. 2 to 7 are the landlords and they have filed Civil Suit bearing No. 1344 of 1975 in the Court of Small Causes, Pune against the petitioners claiming possession of the suit premises and certain other reliefs. Possession of the premises is claimed on the ground that respondent No. 2 Shridhar Balwant Kanade needs the premises for bona fide occupation and use. Obviously, therefore, the suit was filed under the provisions of Sections 12 and 13 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter called the Rent Act, This suit was resisted on behalf of the petitioners by filing a written -statement on February 5, 1976. On March 12, 1976 the respondent -plaintiffs filed an application for amendment of the plaint in view of the amending Act No. 52 of 1975 whereby Section 13 -A1 was introduced in the Rent Act. The said application was allowed by the Small Cause Court. It appears from the record that the revision petition filed against the said order of the Small Cause Court was also dismissed. By this amended plaint the plaintiff -respondents also claimed a right to evict the defendant -petitioners under the provisions of Section 13 -A1 of the Act, which reads as under: 13 -A1. 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 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 his 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. Explanation 2. -For the purposes of this section, any certificate granted thereunder shall be conclusive evidence of the facts stated therein. From the record it appears that the plaintiff -respondents filed a certificate issued by the Lt. Col. Chief Record Officer dated February 12, 1976, which was issued by the said authority in pursuance of an application filed by respondent No. 2 Shridhar Balwant Kanade for grant of such certificate. Obviously this certificate was issued by the Commanding Officer or the Head of Services under Section 13 -A1 of the Act. It is this certificate which is substantially challenged in this writ petition by the petitioners on the various grounds.

(2.) IT now appears to be an admitted position that respondent No. 2 viz. Shridhar Balwant Kanade was working as a Lance Naik and was ultimately discharged on January 24, 1946 because of the reduction of the Indian Army on demobilisation. Thereafter he took up service in the Indian Railways and retired from the railway service on December 3, 1974 i.e. after about twenty -five years of service, It is also an admitted position that the lease in this particular case was created for the first time in the year 1957 and since then the petitioners are living in the said premises as tenants. Mr. Gumaste, learned Counsel appearing for the petitioners contended before us that the certificate issued by respondent No. 1 is liable to be quashed as the respondent No. 2 was not an ex -service man of the armed forces of the Union of India nor he had retired from the said service. According to Mr. Gumaste respondent No. 2 was discharged from the service on January 24, 1946 and for the first time the armed forces of the Union came into existence after the independence of India. Therefore, respondent No. 2 Shridhar Balwant Kanade who was discharged from the service on January 24, 1946 was not a member of the armed forces of the Union nor he was retired from the said service. In view of this, he was not entitled to the protection granted to the members of the armed forces of Union by Section 13 -A1 of the Rent Act. He further contended that Section 13 -A1 which was introduced in the year 1975 has no retrospective operation and, therefore, the persons who retired before coming into force of the said Act cannot avail of the protection conferred by the said section. He further contended that so far as the respondent No. 2 is concerned, from the admitted position on record it is quite obvious that the lease in this particular case was created in the year 1957 i.e. about eleven years after his discharge from the armed forces and therefore, in no case a person like respondent No. 2, Shridhar Balwant Kanade can claim protection of the said section. Mr. Gumaste has also challenged the certificate issued by the Lt. Col. on the ground that it has been issued by him without giving any opportunity to the petitioners to put forward their case. According to Mr. Gumaste, though the act which the Commanding Officer or the Head of Services is liable to perform is administrative in nature, in substance it affects the third party i.e. the tenants. Therefore, by necessary implication the power which is exercised by such officer is quasi -judicial in nature or even if it is assumed that it is administrative, then also the Commanding Officer or the Head of Service is obliged to follow the well -established principles of natural justice before issuing such certificate. In support of this proposition Mr. Gumaste has strongly relied upon the various decisions of the Supreme Court including (1) Shri Bhagwan v. Ram Chand : [1965]3SCR218 (2) State of Orissa v. Binapani Del : (1967)IILLJ266SC (3) A.K. Kraipak v. Union of India : [1970]1SCR457 and (4) State of Gujarat v. Ambalal : AIR1976SC2002 . Mr. Gumaste has further contended that if the certificate is issued without following the well -established principles of natural justice then it is null and void and will have to be ignored for all purposes and therefore cannot confer any right upon the respondent - plaintiffs who claim possession of the suit premises on the basis of said certificate. For this proposition he has brought to our notice the decision of the Supreme Court in Nawabkhan v. State of Gujarat : 1974CriLJ1054 .

(3.) IT is also contended by the learned Counsel for the respondents that from the material placed on record it is quite obvious that Shridhar Balwant Kanade, respondent No. 2 was a member of the armed forces of the Union. He was a member of the Indian Army which after the independence of India came to be known as the armed forces of the Union. For this purpose Mr. Manjrekar has drawn our attention towards the provisions of Army Act, 1911 which was subsequently repealed in 1950, as well as to the provisions of the General Clauses Act and has contended that the persons who were members of the Indian Army at the time of the independence of India are now deemed to be the members of the armed forces of the Union and on that basis Shridhar Balwant Kanade, respondent No. 2 will have to be treated as a retired ex -serviceman of the said force. It was also contended by Mr. Limaye, learned Counsel appearing for the respondents that 'ex -serviceman' is a phrase of wide import and in support of this contention he is relying upon the Government of India Notification No. 13/MAR -71 -ESIS (C) dated October 14, 1971 wherein the said phrase is defined. According to the said definition a person who has served in any rank in the armed forces of the Union including the armed forces of the former Indian State for a continuous period of six months and has been released otherwise than by way of dismissal or discharge on account of mis -conduct or inefficiency is an ex -serviceman. Therefore according to the learned Counsel Shridhar Balwant Kanade who was in the service of the Indian Army for more than six months is an ex -serviceman within the meaning of the said definition. According to him he was not discharged on account of mis -conduct or inefficiency but was discharged or was retrenched because of the reduction of the Indian Army on demobilisation. Therefore, it will have to held that he is a retired member of the armed forces of the Union. Mr. Limaye further contended that the premises were let out by a retired member of the armed forces in the year 1957 and he now requires them for his bona fide use and occupation and, therefore his case squarely falls within the scope of the amended Section 13 -A1 of the Rent Act. He further contended that the said section of the Rent Act has an over -riding effect and will have to be enforced notwithstanding anything contained in the enactment. According to Mr. Limaye, the petitioners who are the tenants of the premises have not shown that Shridhar Balwant Kanade possesses any other suitable residential house in the local area of Pune where he or the members of his family can reside. Therefore, according to Mr. Limaye in substance the facts stated in the certificate are not disputed. Even otherwise for the purpose of Section 13 -A1 the certificate granted by the competent officer is to be treated as conclusive evidence of the facts stated therein and, therefore this is not a case where it could be said that the Lt. Col. has used the jurisdiction not vested in him by law viz. by Section 13 -A1 of the Rent Act.