CHANDRAKANT TRIMBAK GHANEKAR Vs. PRABHAKAR MURLIDHAR BHAGAT

JUDGEMENT

(1.) THE petitioner is in occupation of a godown on the ground floor of house property bearing City Survey No. 945 situate at Manmad in Nasik District. The petitioner is occupying this godown for over 30 years at a monthly rent of Rs. 50/-. The house belonged to one Thapar and in the year 1973 the property was sold by Thapar to Ramchandra, who is the brother of the respondent. The property was thereafter, transferred by Ramchandra in favour of the respondent-landlord on July 9, 1976. The respondent-landlord filed suit on November 30, 1978 against the petitioner in the Court of the Civil Judge, Junior Division, Nandgaon, for recovery of possession in accordance with the provision of Section 13-A1 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The section was amended subsequently but, for the present petition, the section as unamended is required to be examined to ascertain whether the respondent is entitled to decree of eviction. The section inter alia, provides that a landlord who is a member of the armed forces of the Union, shall be entitled to recover possession of the premises on the ground that the premises are bonafide required by him for his occupation by himself or any member of his family. The section further prescribes that 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 (a) the landlord is presently a member of the armed forces of the Union or he was such member and (b) the landlord does not possess any other suitable residence in the local area where he or members of his family can reside. Explanation (2) to the section provides that the certificate granted shall be conclusive evidence of the facts stated therein.

(2.) THE respondent claiming to be a member of the armed forces sought recovery of possession and at the trial produced a certificate dated December 7, 1978 issued by Major K.D. Kochhar, Officer Commanding of the Postal Unit. The certificate read as under :-

(3.) THERE is more serious infirmity in the decree passed by the two Courts below. The section demands that a lord is entitled to recovery of possession provided the Court is satisfied that the premises are bonafide required by the landlord for occupation by himself or member of his family. It is therefore, obvious that mere production of a certificate is not sufficient for the Court to proceed to pass decree for eviction. A duty is cast upon the Court to ascertain whether a member of the armed forces who has produced the certificate requires bonafide the premises let out to the tenant. This obligation placed on the Court cannot be bypassed by observing that the certificate is conclusive evidence. What Explanation (2) to Section 13-A1 provides is that the facts stated in the certificate shall be conclusive evidence and, therefore, the conclusiveness of the proof must be restricted to the contents thereof and nothing more. The issue as to whether the landlord requires the premises bonafide cannot be concluded by the certificate as the same is required to be determined by the Court and not by the Commanding Officer. Indeed in the present case, the certificate does not even refer to the issue as to whether the requirement is bonafide. The Courts below erroneously proceeded to decree the suit by observing that the bonafide requirement of the landlord cannot be challenged once the landlord produces the certificate. In my judgment the approach of the two Courts below is wholly erroneous and the decree passed against the tenant cannot be sustained.