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Smt. Bhanu Athaiya Vs. Commander K.D. Kaushal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 1366 of 1977
Judge
Reported in(1980)82BOMLR12
AppellantSmt. Bhanu Athaiya
RespondentCommander K.D. Kaushal
DispositionPetition allowed
Excerpt:
.....rates control act, 1947 deals with two types of landlords: (1) a landlord who is a member of the armed forces of the union, and (2) a landlord, who was such member and is duly retired.;so far as the interpretation of the second type of landlords is concerned, the expression clearly means a landlord who was a landlord as such qua the tenant and the premises at the time of his retirement. the expression 'landlord' is a relative term and, therefore, it must have a meaning with reference to the tenant of the premises. judged in that light, the second type of landlords, who are conceived, are landlords who are in fact landlords of the tenant concerned in respect of the premises in question, when they were members of the armed forces and also at the time when such landlord has duly retired...........follows: '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.....
Judgment:

Naik, J.

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. Respondents Nos. 1 and 2 carried an appeal and the appeal was heard by the-appellate Bench of the Court of Small Causes. A grievance was made before the learned Judges that the trial Judge was not justified in taking into consideration the Statement of Objects and Reasons, which weighed with the Legislature, in enacting the provisions of Section 13-A1. The learned Judges of the appellate Bench were persuaded to accept that reasoning. They took the view that the trial Judge was not justified in looking to the objects and reasons concerned with the enactment of Section 13-A1 and accepted the contention of the landlords that notwithstanding the fact that respondent No. 1 had retired long prior to the leave and licence agreement in favour of the petitioner, he was a landlord covered by Section 13-A1 and consistently with that view they allowed the appeal and decreed the respondents' suit for possession, of the suit premises.

4. 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.

5. Mr. Tijoriwala, the learned advocate for the petitioner, has assailed the reasoning of the learned Judges of the appellate Bench of the Court of Small Causes, .and he has argued that having regard to the fact that the phraseology used in :s. 13-A1 is ambiguous, the learned trial Judge was perfectly justified in looking to the objects and reasons and, therefore, the learned Judges of die appellate Bench were not justified in ignoring the objects and reasons and in taking the view they did. As against that Mr. Chadha, the learned advocate for the respondents-landlords, while supporting the judgment of the appellate Bench (of the Court of Small Causes, submits that one need not look to the objects and reasons behind this enactment and that if on a plain reading of the provisions it appears that it has a wider implication, then notwithstanding the objects and reasons, the Court should not refuse to give wider meaning which is to be found on a plain reading and if such a wider meaning is given, he submits that even persons of the type of respondent No. 1, who had purported to lease the premises, for the first time, long after they retired from Armed Force, would certainly be covered by the provisions of Section 13-A1.

6. Section 13-A1 reads as follows: '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 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 this Service', in the case of officers retired from the Indian Army includes the Area Commander, in the case of officers retire from Hie 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.

Now, Section 13-A1 deals with the case of:

(1) a landlord who is a member of the Armed Forces of the Union, or

(2) a landlord who was such member and is duly retired.

So far as the landlord, who is a member of the Armed Forces of the Union is concerned, no difficulty arises about its interpretation. We are here concerned with the interpretation of the second type of landlords covered by Section 13-A1(a), viz. a landlord, who was such member and is duly retired. We have no doubt that that expression clearly means a landlord who was a landlord as such qua the tenant and the premises at the time of his retirement. It is needless to say that the expression 'landlord' is a relative term and, therefore, it must have a meaning with reference to the tenant and the premises. Judged in that light, the second type of landlords, who are conceived, are landlords who are, in fact, landlords of the tenant concerned in respect of the premises in question, when they were members of the Armed Forces and also at the time when such landlord has duly retired. In other words, that expression refers to the existence of the relationship of landlord and tenant at the time of retirement of the member of the Armed Forces. That expression can have no reference to the member of the Armed Forces who becomes a landlord qua a tenant of a particular premises, after his retirement. That, to us, appears to be the plain meaning of the expression 'a landlord who was such member and is duly retired' occurring in Section 13-A1(a).

7. Mr. Chadha, however, urged that such an interpretation is being put upon by us on the said expression because the view is permeated by the objects and reasons for passing this amended provision of the Act, and that but for the fact that we were aware of the objects and reasons behind that Act, we would not possibly put the interpretation, which we are doing, and we would have in all probability interpreted that provision to mean that that provision applies even to a person who becomes a landlord at any time, after his retirement. It is needless to say that our view is not permeated or influenced by the objects and reasons behind this enactment. To us, as we have said earlier and in view of the contention of Mr. Chadha, the point bears repetition, there is no doubt in our mind that the-expression in question clearly applies only to the landlord who was a member of the Armed Forces at the time of his retirement. Although, in our opinion, we need not look further for the view we are taking about the said interpretation, we might point out that there is some intrinsic material in this provision itself to indicate that the expression 'a landlord who was such member and is duly retired' could have no reference to a person who becomes a landlord after his retirement. In this connection, we might read with advantage the provisions of Section 13-A1(o)(i) which sets out the form or phraseology of the certificate to the effect:

or he was such member and is now a retired ex-serviceman.

(Italics supplied).

The mention of the word 'now' is clearly intended to emphasise the close proximity of time of the issuance of the certificate to the event of retirement from service from the armed forces. The submission of Mr. Chadha that the provision applies to a landlord seeking eviction even though he might have leased the premises after his retirement, is not only not borne out by the earlier part of the form of certificate but it would also make the expression 'now' occurring in the prescribed form of certificate otiose. That is another reason why Mr. Chadha's interpretation cannot be accepted as after all words take their colour and meaning from their context.

8. Again, Section 13-A1(6) is also a pointer to the view we are taking. That provision provides, inter alia, that 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, if the requirements mentioned therein are fulfilled. This provision would show that the benefit of this section would be available to the widow of a member of the Armed Forces of the Union, who dies in harness, but when it comes to the question of giving the benefit of this provision to the widow of a member of the Armed Forces, who has retired, in order that such a widow may be able to avail of this beneficial provision, the death of the retired person must occur within five years of his retirement. In other words, if unfortunately the retired officer dies five years, after his retirement, his widow cannot take advantage of this beneficial provision. That is a clear indication that the benefits intended to be conferred on the widow by this provision was available only if the officer dies within five years of his retirement.

9. After all the Legislature was concerned with amending the provisions of the Rent Act, which itself was intended to protect the tenants from being evicted. The paramount object of passing the Act of 1947 was to protect the tenants from eviction as long as the tenant pays or is ready and willing to pay the standard rent and permitted increases, and observes and performs the other conditions of tenancy as provided in Section 12. Exceptions, however, were carved out by the provisions of Sections 12(5) and 13 to enable the landlords to recover possession of the premises. Now, it is this main Act, which was being sought to be amended by incorporating the provisions of Section 13-A1. That being the position, it would appear that the provisions of Section 13-A1 have got to be strictly construed. If two meanings are possible of the expression 'landlord', and we hasten to add that in our opinion, there are no two views possible, then it is the narrower view which ought to prevail. As we have pointed out, the Legislature took care to see that a widow, who was a widow of a soldier dying in harness, or a widow of a member of the Armed Forces, who has died within five years of his retirement, only could avail of the special provisions. Having regard to these provisions, even assuming for :a moment that two interpretations were possible and it was possible to give a wider meaning to the expression 'a landlord who was such member and is duly retired', then having regard to the established principles of the construction of a statute, and particularly the provisions of parent Act, and the fact that the provisions of Section 13-A1 take away the benefits conferred on the tenants by the main Act, and these provisions have got to be strictly construed, it should follow that it is the narrower interpretation which has got to be adopted, and. not the wider one. Vide Md. Shaft v. Addl D. & S.J. Allahabad : [1977]2SCR464 .

10. There is still one more objection to the acceptance of the wider interpretation which is sought to be put by Mr. Chadha. The wider interpretation of the type which Mr. Chadha wants to put is likely to invalidate the provisions of the Act as being violative of the fundamental rights under Article 14 of the Constitution. It is unnecessary to illustrate how a wider interpretation would not have any nexus with the object sought to be achieved. Therefore, when the Court is left with the choice of validating an enactment by accepting the narrower view or striking it down on the ground of its being violative of the provisions of Part III of the Constitution by giving a wider interpretation, it is an accepted principle of the construction of statutes and the practice of this Court and the Supreme Court that the Court would try to validate the provisions of an enactment by giving the narrower meaning rather than strike it down by giving the wider meaning. That is one more reason why even if two meanings were possible, we cannot persuade ourselves to give the wider meaning which is canvassed by Mr. Chadha in a bid to give the benefit of this provision to respondents Nos. 1 and 2 in this case.

11. Again, although as we have pointed out, we have no doubt, in our mind, about the interpretation to be put on the expression if, as is argued by Mr. Chadha, the wider interpretation, which is tried to be put by him, is also possible, it would follow that two interpretations of the phraseology with which we are concerned are possible. If that is so, a stage had been reached, when according to the well accepted principles, this Court is certainly entitled to look to the objects and reasons behind the enactment of this provision of Section 13-A1 to find out, as to what was the position, which existed prior to this amendment and what was the mischief which the Legislature sought to set right. Vide Radhabai v. State : AIR1970Bom232 . The Statement of Objects and Reasons, therefore, which could be looked for that limited purpose, are to this effect:

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 of 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.

12. Therefore, the situation, which existed prior to this amendment, was that the Armed Forces Officers were liable to be transferred at short notices and they were being transferred from what are called their family stations to non-family stations, and, therefore, they having had no immediate use of their premises had to lease out the premises. Now, in the absence of a special provision like Section 13-A1, they would have been required to face the ordeal of a long drawn out glorious uncertain litigation for eviction on the grounds contained in Section 13(1)(g) of the Act. Now, it is well known that delays particularly in rent matters are too notorious. It was evidently in order to accommodate such persons and to see that they could send their families while they are shifted to non-family stations, and their families could occupy their own houses or premises that these provisions were made. The Legislature also realised that even in respect of Armed Personnel who retire, in spite of their having their own premises, they could not recover possession of the same without passing through the ordeal of litigation in an action under 13(1)(g) of the Act. It was with a view to secure immediate accommodation to such retired Armed Personnel that the Legislature thought that it must provide for a special remedy to enable them to recover possession of their houses so that they should not be stranded, soon after retirement. In fact, it is not disputed by Mr. Chadha that the Statement of Objects and Reasons clearly shows that the Act was intended to cover the cases of the landlords who were landlords on the date of retirement. That is precisely why he submitted that our views need not be permeated by the provisions of the Statement of Objects and Reasons behind this amendment. That shortens our task and if, as Mr. Chadha would try to urge upon us that two interpretations of the expression are possible, then certainly having regard to the fact that we are entitled to look to the objects and reasons, and the objects and reasons clearly indicate that this beneficial special legislation curtailing the rights of tenants under a special legislation like the present Rent Act is not intended to be extended to the persons who became landlords after they retired from service, we must not hesitate to give expression to that legislative intent. In view of the interpretation we are putting on Section 13-A1(a) about the-landlords who are entitled to the benefit of that provision, it would follow that since the provisions of Section 13-A1(a) are not at all attracted to the facts of this case, the certificate issued by the Officer in this case purporting to act under the provisions of the said section is of no consequence and must be ignored and in the result it would appear that the trial Court was right in dismissing the plaintiff's suit.

13. We might also mention that a division Bench of this Court consisting of Dharmadhikari and Kurdukar, JJ. in Smt. Sushilabai Vasudeo Jaeel v. M.S. Dhillon (1978) Special Civil Application No. 1195 of 1977, decided by Dharmadhikari and Kurdukar JJ., on October 19/20, 1978 (Unrep.) has also taken practically the same view, which we have taken. Having regard to the view we have taken about the landlords who are conceived by the provisions of Section 13-A1(o) and that interpretation is sufficient to dispose of this petition, we do not think it necessary to decide the further questions as to whether in spite of a certificate mentioned in that provision the Court is still entitled to consider the question of bona fides of the landlord or as to whether the provisions providing, inter alia, that the certificate to be issued even in respect of the question 'that he does not possess any other suitable residence in the local area where he or the members of his family can reside' is conclusive evidence of the facts stated therein is valid or not. These questions could be more appropriately decided when a suit is filed either by a landlord, who is actually in the Armed Forces, or is filed by a landlord, who is a landlord as such at the time of retirement and seeks eviction in exercise of the right under Section 13-A1.

14. At this stage Mr. Chadha requests that respondents Nos. 1 and 2 may be permitted to amend their plaint so as to make out a case of eviction under Section 13(1)(g) of the Act. This request is strongly opposed by Mr. Tijoriwala on the ground that Mr. Chadha, the learned advocate for respondents Nos. 1 and 2, had made it clear that the plaintiffs were not claiming possession of the premises under Section 13(1)(g) of the Rent Act, and that that fact is mentioned below the issues which were settled for decision by the trial Judge. Having regard to the said position, since it is open to respondents Nos. 1 and 2 to file a fresh suit under Section 13(1)(g) of the Act, we are riot inclined to accede to the request of Mr. Chadha.

15. In the result the petition is allowed and the rule is made absolute. The judgment and decree of the appellate Bench of the Court of Small Causes is quashed and that of the trial Court is restored.

16. There shall be no order as to costs.


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