BHANU ATHAIYA Vs. COMMANDER K.D. KAUSHAL

JUDGEMENT

(1.) THIS petition raises an interesting question as to who is the landlord who is intended to be given the benefit of the provisions of Section 13 -A1(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Act'). The question arises under the following circumstances:

(2.) RESPONDENTS Nos. 1 and 2, who are husband and wife, are the owners of Flat No. 38 in the building of the Shankar Mahal Co -operative Housing Society Limited at Bombay. Respondent No. 1 Mr. Kaushal, who was in the Navy, retired from service in February, 1968. On July 17, 1972, respondent No. 2, wife of respondent No. 1, both for herself and respondent No. 1, gave the said flat on leave and licence basis to the petitioner. After coming into force of Section 15A by the Maharashtra Act No. 17 of 1973, the petitioner become statutory tenant of the flat in question, as he was in possession of the premises on February 1, 1973. On November 19, 1975, respondent No. 1 secured a certificate from the Vice -Admiral Flag Officer, Commanding -in -Chief, Western Naval Command, under the provisions of Section 13 -A1(a). Respondents Nos. 1 and 2 thereafter sent a notice dated November 24, 1975 to the petitioner to quit and vacate. The petitioner not having made amends the respondents filed a suit in the Court of Small Causes at Bombay on January 23, 1976. The suit was based mainly on the certificate issued by the Commanding Officer under Section 13 -A1(a) of the Act. The suit was resisted by the petitioner on the ground that the two respondents were not his landlords who were covered by the provisions of Section 13 -A1(a) of the Act inasmuch as the leave and licence agreement in his favour was entered into on July 17, 1972, i.e. nearly more than three and odd years, after respondent No. 1 had retired from the Navy. The learned trial Judge upheld that contention of the petitioner and since the learned advocate for respondents Nos. 1 and 2 had restricted his claim to relief only on the ground under Section 13 -A1 and not under Section 13(1)(g) of the Act, the trial Court dismissed the suit, as it accepted the contention of the petitioner that the landlords in this case are not his landlords who are entitled to relief under Section 13 -A1 of the Act.

(3.) THE correctness of that judgment and decree was challenged by this Special Civil Application. Since the very vires and constitutional validity of Section 13 -A1 was challenged before the learned single Judge of this Court, he made a reference to the Constitution Bench. That is how the matter has come before us.