Bombay High Court
Satish Kumar Banwarilal Sharma vs Major Virendra D. Ganju on 18 July, 1998
Equivalent citations: 1998(4)BOMCR175, 1998(3)MHLJ211, 1998 A I H C 4453, (1998) 3 MAH LJ 211, (1999) 1 MAHLR 72, (1998) 2 RENTLR 696, (1998) 3 ALLMR 471 (BOM), 1998 BOMRC 510, (1998) 4 BOM CR 175
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar
ORDER R.M.S. Khandeparkar, J.
1. This is a civil revision application filed against the Order dated 28-5-96 passed by the Competent Authority under Bombay Rent Control Act, Nashik Division, Nasik Road. The only point which is sought to be raised by the petitioner is about non maintainability of the eviction proceedings initiated against the petitioner by the respondent on the ground of bona fide requirement in terms of section 13(A)(1) of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947, after his retirement from the Military services since the suit premises were acquired by the respondent after his retirement from services. It is the contention of the petitioner that respondent retired from the Military services in the month of May-90 and acquired the property in question by Sate Deed dated 16-8-90, and that after his retirement, the eviction proceedings were initiated on the ground of bona fide requirement in terms of section 13(A)(1) of the said Act in the month of August-92, hence the same are not maintainable. In this respect, learned Counsel for the petitioner sought to place reliance on the judgment of the Apex Court in the case of Winifred Ross and another v. Ivy Fonseca and others, reported in 1984(1) Bom.C.R. 385 (S.C.) : 1984 Maharashtra Law Journal, 411.
2. When the matter was taken up for hearing, the learned Counsel for the respondent submitted that he was orally informed by his client on 15-7-98 not to continue to appear in the matter for the respondent and that he would make necessary arrangement to engage some other lawyer for him in this matter. However, he submitted that the case papers have not yet been collected from him by his client. Moreover, he submitted that he has no instructions in the matter. However, nothing in writing is placed on record even to show that the authority given to the Advocate by the respondent has been terminated by his client or that he desired to withdraw his Vakalatnama filed on behalf of the respondent.
3. Upon hearing the learned Counsel for the petitioner and after going through the entire record, it is seen that undisputedly the respondent retired from the Military services in the month of May-90 and after his retirement he purchased the suit property by Sale Deed dated 16-8-90. The relevant averments in the application for eviction in this respect read thus :
(a) The applicant is a retired Army Officer and was in the service of the said Department as Major.
(b) He retired from the said service in May 1990.
(c) After retirement the applicant had a desire to settle down at Nashik. Accordingly the applicant has purchased a block as shown in the Schedule to the application, from his relatives Smt. Sushila, daughter of Prakashchandra Kapoor under the Sale Deed dated 16-8-90 which was registered on 17-8-90 and the applicant wants to occupy the said block for himself and for his own residential purposes.
(d) The occupant is occupying the said flat for residential purpose on a monthly rent of Rs. 150/- and the electricity charges and water charges were separately paid by the opponent.
4. From the above facts it is abundantly clear that the respondent purchased the suit premises after his retirement from military services. The application for eviction clearly disclose that the same was filed on or after 29-8-92. In other words the eviction proceedings on the ground of bona fide requirement in terms of section 13(A)(1) of the said Act were initiated by the respondent only after his retirement from the military services. No doubt, section 13(A)(1) specifically provides that the members of the Armed forces can recover possession of the rental premises when they bona fide require the same for the personal occupation or for family members. However, as rightly submitted by the learned Counsel for the petitioner, in the matter of Winifred Ross and another (supra) while interpreting section 13(A)(1), the Apex Court has clearly held thus :-
The object of section 13(A)(1) of the Act is quite a laudable one. It is introduced in order to enable members of the Armed Forces who have leased out their buildings when they are in service to recover quickly possession of such buildings without the restrictions contained in the other parts of the Act either when they are still in service or on their retirement for their use and occupation or for the use and occupation of the members of their family.....
An analysis of Clause (a) of section 13(A)(1) shows that the person who wishes to claim the benefit of that section should be a landlord of the premises while he is a member of the Armed Foces of the Union and that he may recover possession of the premises on the ground that the premises are bona fide required by him for occupation by himself or any member of his family on the production of the required certificate either while he is still in service or after his retirement. The essential requirement is that he should have leased out the building while he was a member of the Armed Forces.
5. It is thus clear that the Apex Court while interpreting the said section has clearly held that a landlord, who is or who had been in military service, can recover the possession of the leased premises under section 13(A)(1) when he himself had leased out the premises while he had been a member of the armed forces. In other words, a person who acquires the property and the title of landlordship after his retirement from the armed forces he would not be entitled to recover the possession of the leased premises by virtue of provision contained in section 13(A)(1).
6. In the present case there is no dispute that the respondent who had initiated proceeding for eviction of the petitioner from suit premises did not acquire any title to this premises while he was in the armed forces and he purchased the premises only after his retirement by virtue of Sale Deed dated 16-8-90.
7. In this view of the matter the decision of the Apex Court in the matter of Winifred Ross and another (supra) is clearly applicable to the facts of the present case and therefore, applying the test led by the Supreme Court in the said decision, the impugned order dated 28-5-96 cannot be sustained and liable to be quashed and set aside.
8. It is true that the learned Counsel for the respondent reported no instruction in the matter on the ground that his client had orally instructed him on 15-7-98 that he would arrange some other lawyer to represent the respondent in the matter. Moreover, fact remains that no leave has been so far sought for by the concerned lawyer to withdraw from the case and to have himself been discharged from the case in accordance with the provisions of law and therefore, in the circumstances, I have no option but to proceed with the matter. It is unfortunate that the Advocate for the respondent has chosen not to render necessary assistance to the Court in deciding the matter.
9. Once it is held that the respondent could not have initiated proceeding for eviction under the provisions of section 13(A)(1) and in fact the eviction proceedings having been filed solely on the ground of bona fide requirement of the respondent for having retired from military but in respect of the premises purchased after retirement and the eviction proceedings have not been initiated on any other ground, the impugned order cannot be sustained and the same is liable to be quashed and set aside. In view of the fact that the petition was not maintainable under section 13(A)(1), this Court need not express any opinion regarding other points sought to be agitated in this matter.
10. In the result, civil revision application succeeds. The impugned order dated 28-5-96 is hereby quashed and set aside. Rule is made absolute in the above terms. There shall be no order as to cost.
11. Application succeed.