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Sushilabai Vasudeo Jaeel Vs. M.S. Dillon - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 1195 of 1977
Judge
Reported in(1980)82BOMLR360
AppellantSushilabai Vasudeo Jaeel
RespondentM.S. Dillon
DispositionPetition allowed
Excerpt:
.....153-a, 153-b, 292, 293, 295a of i.p.c., - about eleven years after his discharge from the armed forces and therefore, in no case a person like respondent no. 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. 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..........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.....
Judgment:

Dharmadhikari, J.

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. On the other hand, it is contended by Mr. Limaye, learned Counsel appearing for respondent Nos. 2 and 7 as well as by Mr. Manjrekar, learned Counsel appearing for respondent No. 1 that the function which is entrusted to the Head of Services or the Commanding Officer is wholly administrative in nature. He is expected to issue a certificate on the basis of the material available on record. Section 13-A1 only contemplates that such an officer should certify as to whether the person concerned is presently a member of the armed forces of the Union or was a member and is now a retired ex-serviceman. He has further to certify as to whether he does or does not possess any other suitable residence in the local area where he or the members of his family can reside. As the certificate is issued by the competent officer on the basis of the entries made in the record no further inquiry is contemplated. They further contended that at that stage the rights of the tenants do not come into the picture, nor by the certificate it can be said that the tenants are adversely affected. Therefore it is the contention of the learned Counsel for the respondents, that it is not necessary for the competent officer to hold any inquiry or to give any opportunity to the tenants while issuing such a certificate. In support of this proposition Mr. Manjrekar has relied upon the decision of this Court in Diwanchand v. N.M. Shah : AIR1972Bom316 , as well as a decision of Gujarat High Court in Indradaman Amritlal v. Anandlal Nandlal Kavi [1978] 1 R.C.J. 239.

4. 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.

5. Various words and phrases used in Section 13-A1 are not defined in the Act though the words 'landlord' and 'tenant' are defined in Section 5(5) and (11) respectively of the Act. The object of the Legislature in making such a provision is to confer a right on the class of landlords viz. members of the armed forces to enable them to obtain possession of the premises let out by them to their tenants. With this very object and purpose a non-obstante clause is also introduced in the amended Section 13-A1 of the Act. The object of the Rent Act is to give protection to tenants from eviction from accommodation. The object of the legislation in enacting this Act was to protect tenants from the greedy and grasping landlords and from their resorting to Court for eviction of tenants without any reasonable grounds. The Act is intended for the protection of weaker section of community namely the tenants. Therefore, the policy incorporated in the Rent Act is obviously based on public policy. The policy of Section 13-A1 also seems to be that a responsible person like Head of Service or Commanding Officer should consider the matter before granting certificate. One of the well-established principles of interpretation of the statute is that if the statute is not exhaustive or where language is ambiguous, uncertain, clouded or susceptible of more than one meaning or shades of meaning, the external evidence as to the evils which the statute was intended to remedy or the circumstances which led to the passing of the statute may be legitimately looked into for the purpose of ascertaining the object which the Legislature had in view while enacting the provision. The words of the statute must be understood in the sense which the Legislature had in view and, therefore, their meaning must be found not so much in a strictly grammatical or etymological propriety of language, nor in its popular use, as in the object or the occasion on which they are used and the object sought to be attained. They cannot be read in isolation as their colour and content are derived from their context. The real object of interpretation being to find out the true intent of the law makers, this can be done by bearing in mind the rule of Heydon's case [1584] 3 Co. Rep. 7, which requires four things to be considered in arriving at the real meaning of the words used in the statute. Full Bench of this Court had an occasion to consider this aspect of the matter in Radhabai v. State : AIR1970Bom232 wherein this Court observed as under (p. 258): -

When the words of a section are clear but its scope is sought to be curtailed by construction, the approach suggested by Lord Coke in In re: Heydon's case, yields better results.

To arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope, and object of the whole Act: to consider according to Lord Coke: (1) What was the law before the Act was passed; (2) What was the mischief or defect for which the law had not provided; (3) What remedy Parliament has appointed; and (4) The reason of the remedy.

It is equally well settled that for ascertaining the real intention of the Legislature the Court may legitimately take into consideration the statement of objects and reasons for amending the particular enactment. Obviously this can be done for a limited purpose of ascertaining the conditions prevailing at the time when the Bill was introduced and the purpose for which the Act was amended. Section 13-A1 was introduced by Maharashtra Act 52 of 1975 and the statement of objects and reasons of the said enactment read as under:

Defence Services Personnel are liable to transfer 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 such 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 entitle 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 Commander within whose jurisdiction the premises are situated.

4. The Bill is intended to achieve these objects.

From the bare reading of this statement of objects and reasons it is quite clear that having regard to the special hardship of the class of landlords, namely the Defence Service Personnel the Legislature wanted to make a special provision so as to enable them to regain possession of their premises immediately and for this a more simplified and effective procedure has been provided. It appears from the statement of objects and reasons that as the Defence Service Personnel have to be transferred to stations in different parts of the country and they are often posted at non-family stations, some of the personnel who possess their own premises not only in their home-town or elsewhere have necessarily to hire out them to other persons temporarily while they are away on duty. It becomes difficult for them to regain possession of these 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 ex-servicemen while in service or death of ex-servicemen shortly after the retirement, widow also finds it extremely difficult to regain possession of their premises for personal occupation or occupation of her family and for this purpose the Legislature in its wisdom thought it necessary that a special provision should be made in that behalf. From the statement of objects and reasons it is further clear that for this purpose, a representation was made to the Government by and on behalf of the military authorities and in view of this representation to obviate hardship and difficulty which the Defence Personnel were facing in regaining the possession of their premises this provision has been made by the Legislature. Prior to the introduction of Section 13-A1 even the Defence Personnel had to regain possession under the other provisions of the Bombay Rent Act. As a rule of evidence a further provision is made for issuing a certificate by the competent authority. By the explanation it has been made clear that for the purposes of this section any certificate granted by the competent authority shall be conclusive evidence of the facts stated therein. Therefore, the Legislature has chosen a responsible officer like Head of Service or Commanding Officer for performing this duty. The power or authority has to be exercised by these responsible officers on the basis of their satisfaction and not arbitrarily and mechanically, nor as a matter of course. Certificate cannot be granted for mere asking of it. The power or authority to issue certificates has to be exercised after considering the relevant material. It has to be based on relevant data, evidence or guidelines. Therefore the power or authority conferred upon the competent officer is coupled with duty and his signature on such a certificate is not a mere formality.

6. As observed by the Supreme Court in Md. Shafi v. Addl. D. & S.J., Allahabad : [1977]2SCR464 in such matters there is one principle of interpretation which offers some guidance. In para. 6 of the said judgment the Supreme Court observed as under (p. 840):.But there is one principle of interpretation which offers some guidance in the interpretation of the rather obscure language of this Explanation and it is that since the Explanation raises a conclusive presumption in favour of the landlord in a legislation which is intended to protect the tenant against unreasonable eviction, it must be construed strictly against the landlord so as to cut as little as possible into the protection afforded to the tenant. If the language of the Explanation is susceptible of two interpretations, we should prefer that which enlarges the protection of the tenant rather than that which restricts it.

7. Bearing in mind this principle of interpretation we may now approach the language used in Section 13-A1 of the Rent Act. As already observed this provision is a part and parcel of a legislation which is enacted by the Legislature for affording protection to the tenants. Section 13-A1 uses an expression namely 'landlord who is a member of the armed forces of the Union or who was such a member'. The legislation with which we are concerned deals with the relationship of landlord and tenant. The word 'landlord' is used in the context of tenant who is occupying the premises.

8. The very phraseology used in this section is indicative of legislative intention. If the various provisions of this section are read together and in the context of the object sought to be achieved, it is quite obvious that the said section confers a right only upon those landlords, who had let out their premises when they were members of armed forces. In a given case the section might include in its import those cases where a landlord had let out the premises for one reason or other even before his joining the armed forces but the relationship of landlord and tenant was subsisting when he was a member of armed forces and after his retirement therefrom, he wants to regain possession of the house as it is required by him for his own occupation or the occupation of any member of his family.

9. Therefore it is quite clear that the section will govern only those cases of ex-servicemen who were not in possession of the house at the time of their retirement. It will not govern a case of a person who had retired long back from the service and was gainfully employed elsewhere; and while so employed had let out his premises with open eyes. This intention of the Legislature is further clear from the provisions of Sub-section (b) of Section 13-A1, which lays down a period of five years in case of death of an ex-serviceman. Even the right conferred upon the widow of an ex-serviceman is not an unlimited or blanket one. This right conferred by this section is circumscribed by the very phraseology used in the section. In the case before us it is an admitted position that Shridhar Balwant Kanade who is claiming protection of this section was discharged from the service of the defence forces in the year 1946. It is also an admitted position that at that time the house was not rented out but was in possession of the landlord. It is further clear from the record that the suit is filed by the said Shridhar Balwant Kanade together with some other co-owners. It is also an admitted position that the lease in this case was created in the year 1957 i.e. about eleven years after the alleged retirement of Shridhar Balwant Kanade from the defence forces and at that time he was in service of railway administration. Therefore at that time he was not a pure and simple ex-serviceman but something more. Therefore, it is difficult to construe this section to mean that the Legislature intended to confer additional right upon such a person who had created lease with open eyes and with the knowledge of the provision of the Rent Act after a period of eleven years of his discharge from the defence forces; and that too when he was gainfully employed in Railway service. He could not be termed to be a landlord who is covered by the provisions of Section 13-A1 of the Act. The Legislature intended to make such a provision for speedy and immediate recovery of the premises by such personnel, who are in the defence service and had hired out their premises temporarily while they are away on duty. The provision is also made for their regaining possession for occupation of the premises by their family members, if they are transferred to non-family stations or on their retirement. Paragraph 3 of the Statement of Objects and Reasons further makes it clear that even in case of death of an ex-serviceman a period of five years is prescribed. If this is so, then in our opinion a person who was discharged from the armed forces of the Union in 1946, took up some job in the railway administration and let out his premises some time in the year 1957 i.e. after eleven years, cannot get advantage of such a provision for regaining possession of the premises after his retirement from the railway administration in the year 1974. It is pertinent to note that the suit for regaining possession of the premises was already filed even before the said section was introduced in the Bombay Rent Act. In this view of the matter and having regard to the peculiar facts and circumstances of the case, in our opinion by no stretch of imagination it could be said that respondent No. 2, Shridhar Balwant Kanade's case falls within the scope of Section 13-A1 of the Bombay Rent Act as amended. On this short ground alone the certificate issued by respondent No. 1 is liable to be quashed. In the view which we have taken it is not necessary to consider or deal with any other contentions raised before us.

10. In the result, therefore, the petition is allowed. The certificate issued by respondent No. 1 is quashed. Rule is made absolute. However, in the circumstances of the case there will be no order as to costs.

11. At this stage Mr. Limaye on behalf or respondents Nos. 2 to 7 orally prays for leave to file an appeal before the Supreme Court of India. Leave refused.


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