Madhya Pradesh High Court
Kunjulal Yadu And Ors. vs Parasram Sharma on 24 April, 2000
Equivalent citations: AIR2000MP235, 2000(3)MPHT355, AIR 2000 MADHYA PRADESH 235, 2000 A I H C 3552, 2000 SCFBRC 341, (2000) 2 JAB LJ 105, (2000) 2 MPLJ 514, (2000) 2 RENCR 161
Author: Dipak Misra
Bench: Dipak Misra
JUDGMENT Dipak Misra, J.
1. Finding conflict between two Division Bench decisions rendered in the cases of B. Jhonson Bernard v. C. S. Naidu, 1985 MPLJ 675 and Jenendra Kumar v. Roshanlal, 1994 JLJ 19, the learned single Judge made the following reference :
"Whether a retired Government servant, who acquires accommodation after his retirement and lets out the same to a tenant, is entitled to invoke Section 23A of the Act?"
2. For the sake of convenience and clarity we would refer to the facts in Civil Revision No. 1349/96. The non-applicant/landlord, after his retirement from Government service made an application before the Rent Controlling Authority, Raipur on 16-3-1989 under Section 23-A(b) of the M. P. Accommodation Control Act, 1961 (hereinafter referred to as 'the Act') seeking eviction of the tenant from shop No. 2 situate at Satti Bazar, Raipur, for commencing a business on the ground that no suitable accommodation was available to him for the said purpose. Leave to defend the case was granted to the tenant under Section 23(C) of the Act. The Rent Controlling Authority passed an order of ejectment by recording certain findings. Before the learned single Judge, it was contended that the landlord had retired from the Government service in the year 1990 and thereafter constructed the accommodation In question and let out the same and hence, he does not fall within the specified category of landlord as defined under Section 23-J of the Act, In this context when two Division Bench decisions were cited, the learned single Judge thought it apposite to recommend a reference to a Larger Bench. That is how the matter has been placed before us.
3. The core question that arises for consideration is whether a retired Government servant is entitled to Invoke the provision enshrined under Section 23-A of the Act. If he acquires an accommodation alter his retirement and lets out the same to a tenant. In this context, we feel it Imperative to refer to Section 23-A of the Act. It reads as under :
"23-A. Special provision for eviction of tenant on ground of bona fide requirement.--
Notwithstanding anything contained in any other law for the time being in force or contract to the contrary, a landlord may submit an application, signed and verified in a manner provided in Rules 14 and 15 of Order VI of the First Schedule to the Code of Civil Procedure, 1908 (V of 1908) as if it were a plaint to the Rent Controlling Authority on one or more of the following grounds for an order directing the tenant to put the landlord in possession of the accommodation, namely:
(a) that the accommodation let for residential purposes is required "bona fide" by the landlord for occupation as residence for himself or for any member of his family, or for any person for whose benefit, the accommodation is held and that the landlord or such person has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned.
Explanation: For the purpose of this clause, "accommodation let for residential purposes" includes--
(i) any accommodation which having been let for use as a residence is without the express consent of the landlord, used wholly or partly for any non-residential purpose;
(ii) any accommodation which has not been let under an express provision of contract for non-residential purposes;
(b) that the accommodation let for non-residential purposes is required "bona fide" by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters, if he is the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non-residential accommodation of his own in the city or town concerned:
Provided that where a person who is a landlord has acquired any accommodation or any interest therein by transfer, no application for eviction of tenant of such accommodation shall be maintainable at the instance of such person unless a period of one year has elapsed from the date of such acquisition."
On an objective reading of Section 23-A of the Act, it is luminously clear that special provisions have been engrafted for eviction of a tenant on the ground of bona fide requirement. This bona fide requirement is a condition-precedent to become successful in a proceeding for ejectment under this provision. The aforesaid provision is not available to all types of landlords. Section 23-J of the Act defines the landlord for the purposes of this chapter. It reads as under :
23-J. Definition of landlord for the purposes of Chapter III-A. For the purposes of this Chapter 'landlord' means a landlord who is--
(i) a retired servant of any Government Including a retired member of Defence Services; or
(ii) a retired servant of a company owned or controlled either by the Central or State Government; or
(iii) a widow or a divorced wife; or
(iv) physically handicapped person; or
(v) a servant of any Government including a member of defence services who, according to his service conditions, is not entitled to Government accommodation on his posting to a place where he owns a house or is entitled to such accommodation only on payment of a penal rent on his posting to such a place."
4. At this juncture we may note that when the M. P. Accommodation Control (Amendment) Act, 1983 (M. P. Act No. 27 of 1983) and the M. P. Accommodation Control (Amendment) Act, 1985, (Act No. 7 of 1985) were introduced, their constitutional validity was called in question. In the case of B. Jonhson supra the Division Bench was called upon to decide the constitutional validity of various provisions of the Act. The vires of Section 23-J of the Act was also challenged. While discussing with regard to the constitutional validity of Section 23-J of the Act, the Division Bench expressed thus in paragraph 13 at Page 80 :
" 13. Section 23-J specifies the categories of landlords, who alone are entitled to the benefit of Chapter III-A. These categories are retired servants of the Government or Defence Services; retired servants of Government owned or controlled companies; widow or a divorced wife; physically handicapped person; or a servant of any Government or Defence Services, who is not entitled by his service condition to Government accommodation, on his posting to a place where he owns a house or Is entitled to Government accommodation only on payment of Penal rent. The test laid down by the Supreme Court in Ravi Dutt Sharma v. Ratanlal Bhargava (supra), for permissible classification amongst the landlord for conferal or the benefit of the special procedure is fully satisfied by Section 23-J. These landlords specified in Section 23-J belong to a special category distinct from the remaining landlords, who deserve the benefit of the special procedure on account of their need being more pressing and the handicap from which they suffer as compared to the remaining landlords, the objects of the amendment being to provide for expeditious trial of eviction cases on the ground of bona fide requirement of the landlord. Confining this benefit only to these categories of the landlords specified in Section 23-J, on account of the greater handicap from which they suffer as compared to other landlords not falling in these categories indicates reasonable nexus of the classification with the object sought to be achieved by the Legislature. Following the Supreme Court in the Ravi Dutt's case (supra) the challenge to the classification of landlords by enacting Section 23-J specifying certain categories of landlords only and simultaneously by Section 11-A confining the applicability of Chapter III-A to landlords defined in Section 23-J is rejected."
5. It is to be noted here the said Division Bench upheld the classification and while doing so noted an incidental argument and answered the same in paragraph 14. It reads as under :
" 14. An incidental argument advanced in connection with classification of landlords may also be mentioned. It was urged that a retired servant of the Government etc. acquiring a house after his retirement and inducing a tenant thereafter may also claim to be within the ambit of Clause (i) or (ii) of Section 23-J. as the case may be. It was argued that acquisition of a house after retirement does not justify his classification under this head. This point need not detain us since the answer is given by the Supreme Court in Winifred Ross v. Fonseca. AIR 1984 SC 158. A similar provision in the Bombay Act was read down as conferring benefit only on those retired persons who were landlords white in service and avail the benefit after retirement in respect of a tenancy subsisting during his service. Section 23-J of the M. P. Act has to be construed accordingly and then there is no discrimination."
6. We may notice in the aforesaid case the Division Bench further justified the classification by opining that a retired Government servant would come within the definition of landlord as defined under Section 23-J of the Act if he has let out the premises in question while he is in service and can avail the benefit after his retirement in respect of a tenancy subsisting during his services. The provision was read down to meet the equality clause as provided under Article 14 of the Constitution. To arrive at the conclusion the Division Bench placed heavy reliance on the case of Winifred Ross v. Fonseca, AIR 1984 SC 458. It is worth-noting that in the case of Jenendra Kumar (supra) the latter Division Bench referred to the facts in the case of Mrs. Winifred Ross supra and found it is distinguishable because of obtaining facts and circumstances therein. Mrs. Ross was a case under Bombay Rent Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Bombay Act'). The Apex Court interpreted Section 13-A1 of the said Act which deals with a retired member of the Armed Forces. As the facts unfold, T. B. Ross was a member of Indian Army and the disputed house belonged to his mother-in-law who gifted the same to her daughter after retirement of his son-in-law. Later on, the property was gifted to Mr. Ross who filed a suit for eviction. The suit was decreed and prayer for eviction was allowed. The tenant assailed the legality of the decree before the High Court and the High Court held that Mr. Ross was not entitled to file the suit under Section 13-A1 of the Act as he had acquired the premises long after he had retired from services of the Army and his requirement was also not bona fide. Pregnability of the aforesaid judgment was called in question before the Apex Court. While Interpreting Section 13-A1 of the Act their Lordships keeping in view the objects and reasons of the Act held that Section 13-A1 of the Act could not be availed of by an ex-member of the Armed Forces to recover from a tenant possession of a building which he aquires after his retirement. Their Lordships opined that if he comes into the category of specified landlord it would expose the very Section 13-A1 of the Act to a successful challenge on the ground of violation of Article 14 of the Constitution of India as a retired military officer who has no house of his own can purchase any building in the occupation of a tenant after his retirement and successfully evict the tenant on the ground that he needs the house for his use. Their Lordships opined that he can get into a business of this nature. It is to be noted here that in the said decision their Lordships clarified as under at page 463 :
"We, therefore, wish to clarify that in this case we express no opinion on the question whether a member or a retired member of the Armed Forces who acquires title to a building which is already in the occupation of a tenant by inheritance, partition or otherwise and thus becomes the landlord of the building while he is a member of the Armed Forces, can avail of the remedy against such tenant under Section 13-A1 of the Act."
7. It is worth-noting here that the Apex Court did not allow the plaintiffs claim in view of the clear finding of the High Court that the plaintiff was not really in need of the building, it is to be borne in mind their Lordships were interpreting the Bombay Act and the provisions of Section 13-A1 of the Act is pari materia to the provisions contained in Section 20-AA of the M.P. Accommodation Control Act which has now been repealed. To appreciate the situation we may reproduce Section 20-AA of the Act. It was as under :
"20-AA. Special provision for recovery of possession of accommodation to a retired Government servant or a member of the family of a deceased retired Government servant.--(1) Notwithstanding anything contained in this Act,--
(a) a landlord being a person who was appointed to a public service or post in connection with the affairs of the State and is duly retired (which term shall include premature retirement), shall be entitled to recover possession of any accommodation on the ground that the accommodation is bona fide required by him for occupation by himself or any member of his family and the Court shall pass a decree for eviction on such ground of the landlord at the hearing of the suit, produces a certificate signed by the Controlling Officer to the effect that--
(i) the landlord is a person who was appointed to public service or post in connection with the affairs of the State and is now a retired Government Servant;
(ii) he does not possess any other suitable accommodation in the local area where he or the members of his family can reside.
(b) where a person who was appointed to a public service or post in connection with the affairs of the State dies within five years of his retirement, his widow who is or becomes a landlord of any accommodation, shall be entitled to recover possession of such accommodation on the ground that the accommodation is bona fide required by her for occupation by herself or any member of her family 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 controlling officer to the effect that
(i) she is widow of a deceased Government servant as aforesaid;
(iii) she does not possess any other suitable accommodation in the local area where she or the members of her family can reside.
Explanation :
For the purposes of Clause (a) of this subsection, the expression "controlling officer" means the officer of the State Government drawing the salary of the retired Government servant immediately before his retirement and where the retired Government servant was drawing his salary himself his successor in office.
(2) for the purpose of this section, any certificate granted thereunder shall be conclusive evidence of the facts stated therein."
8. If the aforesaid provision would have been alive in the Statute, there would have been no iota of doubt that the case of Winfred Ross supra would have covered the situation for the simple reason the repealed provision, as observed in the case of Baijnath Prasad Sain v. Daya Shankar Sain, AIR 1991 MP 132 was pari materia to the provisions under the Bombay Act. As the existing provisions are quite different, we are of the considered view that the ratio of Winfred Ross supra would not govern the field and the justification for classification given in the case of B. Jonhson supra is of no avail. We may note in the passing that in the case of Jenendra Kumar supra it was observed that under Section 13-A1 of the Bombay Act, a certificate has to be signed by the head of Army services or Commanding Officer to indicate that the applicant was a member of Armed Forces, and he needed the house for his own use and had no other alternative accommodation of his own in the city. On such certificate being filed in the Court, the Court was obliged to pass a decree for eviction of the tenant. Thus, the provision was not available for evicting for any other purpose except the purpose of residence of himself or the family. From the aforesaid it is perceptible that the provision under the Bombay Act relates to a different sphere altogether and accordingly the Apex Court gave the said interpretation.
9. The core question that falls for considers t ion is whether a retired Government servant ceases to be a landlord if he acquires a property after his retirement and lets it out. We have carefully perused the provisions of the Act. We have also kept in mind the interpretation of the amendment to the Act, brought vide Amendment Act of 1981 (Act No. 12 of 1981) and the Amendment Act, 1983 (Act No. 27 of 1983) which provide for speedy recovery of accommodation by the members of the Armed Forces of the Union or retired Government servant or their widows on the ground of their bona fide requirement. Section 23-J of the Act was brought on the Statute Book with effect from 16-1-1985. It gives a new definition to the term 'landlord' for the purposes of the said chapter i.e. Chapter III-A. Section 23-A and Section 23-J of the Act are to be read conjointly, harmoniously and purposively. Section 23-A of the Act gives enormous emphasis on the concept of bona fide requirement. It has been allowed to take a backseat. The concept of bona fide requirement for various purposes has been specified to concretise the said terms in their conceptual eventuality. Under Section 23-J of the Act a landlord has been given a simple, unequivocal, unambiguous and clear definition. A landlord means a landlord who is a retired Government servant of any Government. It also includes other categories, but we have referred specifically to a retired servant of any Government as that is relevant for our purposes. In the case of B. Jonhson supra the Division Bench created a class within a class to save it from being hit by the equality clause enshrined under Article 14 of the Constitution. If the language employed under Section 23-J of the Act is read in proper perspective, there is no need or justification to create a class within a class or for that matter there was no need to be conscious of the concept of the over-incluslveness as the dictionary clause makes a retired Government servant stand on a different footing than other types of landlords. We may hasten to add here that the Division Bench in B. Jonhsons case has upheld the validity of the classification of various categories of landlords as defined under Section 23-J of the Act relying on the decisions rendered in the cases of Kewal Singh v. Lajwanti, AIR 1980 SC 161 and Ravi Dutt Sharma v. Ratan Lal Bhargava, AIR 1984 SC 967 and incidentally referred to the case of Winfred Ross supra. There are numerous justifications to keep a retired Government servant in a different category. A retired Government servant has passed the middle age and his mind as well as temperament is not suitable to fight a rigorous prolonged litigation before the common law forum. A retired Government servant may not be free from all the family liabilities at the time of his retirement. Instances are not rare where the children are not with him and he has to take the load on his own shoulder to bear the burden of a litigation. That apart the loneliness, meagre pension, and absence of perquisites are also to be taken note of. Quite apart from the above, it is not to be forgotten that he has served the State for a number of years and hence, the Legislature thought it appropriate to confer certain privilege on him by providing a forum to evict a tenant on the ground of bona fide requirement by taking recourse to a speedy measure. In this context, we may give certain examples. A retired Government servant may acquire a property at a particular place and start a business but he becomes unsuccessful and desires to close the same and Intends to start in a premises which he has acquired after retirement and given it on rent, he may seek eviction on the ground of bona fide requirement ascribing the reasons of suitability. Thus if the fact situation Is objectively perceived and probed with a deeper scrutiny it would be crystal clear that a retired Government servant has been rightly given the privilege and treated as a separate class.
10. Presently we shall advert to the question, whether there was any necessity to read down the said provision. We are of the considered opinion the language employed is capable of only one interpretation that a retired Government servant is a landlord within the meaning of the said provision and hence, is entitled to Invoke the special Jurisdiction under Section 23-A of the Act. We do not see any reason that a Government servant becomes a landlord for the purpose of Section 23-J only after his retirement and subsistence of tenancy becomes the sine qua non for the same. It is to be borne in mind that he has to fight the litigation by showing bona fide requirement within the parameters of Section 23-A of the Act. He has to pass that test. True it is, a speedy remedy has been provided to the landlord but that is not without a rider or qualifier. It is just an additional forum where he can seek redressal of his grievances and the litigation has to be concluded in an expenditious manner. We may note here that in the case of Jenendra Kumar (supra) the Division Bench looked into the provision of Section 23-A of the Act and held that where a landlord has acquired any accommodation or any interest therein by transfer, no application for eviction of tenant for such accommodation shall be maintainable at the instance of such person unless a period of one year has elapsed from the date of such acquisition. This restriction also is a qualifier. In the obtaining factual matrix, and keeping in view the language employed, the clarity of expression, we do not see any justifiable reason to engage in a construction which requires any addition or substitution of words. We are of the considered view that the words used being unequivocal and unambiguous there is no justification for adding something to it (when the classification is by itself justifiable and does not come under the lancet of the equality clause) to read it down.
11. In this context we would like to state the language being clear and unambiguous, nothing should be added or substracted from it. There is no need to read it down to save it from the rigours of Article 14 of the Constitution of India. We may state here at the cost of repetition that the language used in Section 23-J is of wide amplitude. The words "a retired servant of any Government including a retired servant of Defence Services" lead to a singular interpretation and does not permit any other interpretation. To elaborate, every retired Government servant is a landlord within the meaning of the provision and entitled to invoke special jurisdiction under Section 23-A of the Act. The Legislature has been very categorical in use of its language and it is the duty of the Court to Interpret what has been stated. The Court has to be conscious of the fact that Legislature has not meant something while, saying something else. In this context, we may profitably refer to the decision rendered in the case of Mohammad Ali Khan v. Commissioner of Wealth Tax, AIR 1997 SC 1165: (1997 Tax LR 371) wherein their Lordships held as under at Page 1167: of AIR:
"6. It is a cardinal principle of construction that the words of a statute are first understood in their natural, ordinary, or popular sense and phrases and sentences are construed according to their grammatical meaning unless that leads to some absurdity or unless there is something in the context or in the object of the statute to suggest the contrary. It has been often held that the intention of the Legislative is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence a construction which requires for its support, addition or substitution or words or which results in rejection of words as meaningless has to be avoided. . . .
12. In the case of Institute of Chartered Accountants of India v. Price Waterhouse, AIR 1998 SC 74 their Lordships expressed as under at Page 91 :
"51. Where, therefore, the "language" is clear, the intention of the Legislature is to be gathered from the language used. What is to be borne in mind is as to what has been said in the statute as also what has not been said. A construction which requires, for its support, addition or substitution of words or which results in rejection of words, has to be avoided, unless it is covered by the rule of exception, including that of necessity. .....
13. In view of the aforesaid, it becomes bounden duty not to read the words into Act as the same is not absolutely necessary to do so. This view of ours gets support from the decision rendered in the case of the Director General, Telecommunication v. T. N. Peethambaram, AIR 1987 162 : (1987 Lab IC 31). Thus, in view of the categoricial, clear, unequivocal and unambiguous language used under Section 23-J of the Act, we are inclined to hold that the terms 'a retired Government servant' is only capable of one Interpretation and every retired Government servant is a landlord within the meaning of the aforesaid provision. We do not intend to read it down to add qualifiers. In our considered opinion such reading down is not necessary. The logic which has been Incidentally given in the case of B. Jonhson (supra) was not necessary to support the classification.
Hence, we are unable to accept the view that has been taken in the case of B. Jonhson (supra.)
14. In course of hearing Mr. Alok Aradhe, learned counsel for the petitioner gave immense emphasis on the objects and reasons of the Act. In this context, we think it opposite to refer to a passage of Jenendra Kumar supra. It reads as under :
"7. It may, therefore, be considered whether the aforesaid interpretation is in accord with the object and purpose of the Act, As regards the object, Chapter III-A was inserted into the Act by the Amending Act of 1983, which has the following as its statement of objects and reasons; "to provide a special forum for expeditious disposal of eviction proceedings filed by the landlords in general on the ground of bona fide use". An far as Section 23-J is concerned, it was inserted by the Amendment Act of 1985 together with Section 11-A in the Principal Act, to clarify that special procedure under Chapter III-A was available only to landlords specified in Section 23-J. Statement of objects and reasons of this Amendment Act mentioned that the new forum provided by the Amendment Act of 1983 was being misused by certain landlords to evict tenants. It was, therefore, proposed to restrict the application of the provision relating to new forum only to the specified categories of landlords, like retired Government servants, etc. The statement of objects and reasons would, therefore, indicate that before insertion of Section 23-J, every landlord was entitled to get an eviction order on the ground of bona fide need, but since the said provision was being misused the benefit of the said procedure was confined to the categories specified in Section 23-J of the Act. As regards the categories mentioned in Section 23-J, the statement of object and reasons cannot be read as limiting the benefit of new procedure to any particular class of part of those categories. Almost every one included in the said category had the benefit of new forum before this enactment and the ambit and scope of the said right was not curtailed by the amendment. The amendment only limited the benefit of summary procedure to persons mentioned in Section 23-J. Under the circumstances, the natural and grammatical meaning given to the word "retired" would not go contrary to the objects and reasons of the Amending Act."
15. On a bare reading of the aforesaid passage, we are of the considered opinion that the Division Bench has correctly synchronised and synthesised the objects and purpose of the amendment with the broad interpretation which they have given.
16. Mr. Alok Aradhe, learned counsel for the petitioner has placed heavy reliance on the decision rendered in the case of J. D. Hingorani v. Ashok Kharbanda, 1995 Suppl (3) SCC 185. In that case the Apex Court held as under:-.
"1. Where a retired employee of the Central Government or of the Delhi Administration lets out the property after his retirement, he cannot invoke the benefit of Section 14-C. This is the finding of the Courts below. We find that is correct. Besides, there is also great reason and justice to hold so. It may, at once, be seen Sections 14-B, 14-C and 14-D came to be inserted by Amending Act 75 of 1988 in order that certain persons may not undergo tortuous course of litigation but may be given immediate possession. Section 14-B talks of members of Armed Forces, 14-C retired Government servants and 14-D of the widows. The fact that these sections emphasise immediate possession is a clear indication that they may resort to these special proceedings under these three sections. Obviously, this postulates that where the retired Government servant, for example, till his retirement had the benefit of the Government quarters and on his retirement he would cease to have such benefit, necessarily, he must be provided with premises. If he were to go under any one of the grounds mentioned in Section 14(1), it will be long drawn battle. Therefore, these provisions are envisaged."
In the said case as the immediacy lost its significance their Lordships held the landlord cannot get the tenant evicted by invoking Section 14-C of the Act. To appreciate the submission of Mr. Aradhe, we have perused Sections 14-B and 14-C of the Delhi Rent Control Act. The said provisions read as under :
"14-B. Right to recover immediate possession of premises to accrue to members of the armed forces, etc.-- (1) Where the landlord--
(a) is a released or retired person from any armed forces and the premises let out by him are required for his own residence; or
(b) is a dependent of a member of any armed forces who had been killed in action and the premises let out by such member are required for the residence of the family of such member, such person or, as the case may be, the dependent may, within one year, from the date of his release or retirement from such armed forces or, as the case may be, the date of death of such member, or within a period of one year from the date of Commencement of the Delhi Rent Control (Amendment) Act, 1988, whichever is later, apply to the Controller for recovering the immediate possession of such premises.
(2) Where the landlord is the member of any of the armed forces and has a period of less than one year preceding the date of his retirement and the premises let out by him are required for his own residence after his retirement, he may, at any time, within a period of one year before the date of his retirement, apply to the Controller for recovering the immediate possession of such premises.
(3) Where the landlord referred to in Sub-section (1) or Sub-section (2) has let out more than one premises, it shall be open him to make an application under that sub-section in respect of only one of the premises chosen by him.
Explanation:
For the purposes of this Section, "armed forces" means an armed force of the Union constituted under an Act of Parliament and includes a member of the police force constituted under Section 3 of the Delhi Police Act, 1978 (34 of 1978).
14-C. Right to recover immediate possession of premises to accrue to Central Government and Delhi Administration employees.--(1) Where the landlord is a retired employee of the Central Government or of the Delhi Administration, and the premises let out by him are required for his own residence, such employee may, within one year from the date of his retirement or within a period of one year from the date of commencement of the Delhi Rent Control (Amendment) Act, 1988, whichever is later, apply to the Controller for recovering Immediate possession of such premises.
(2) Where the landlord is an employee of the Central Government or of the Delhi Administration and has a period of less than one year preceding the date of his retirement and the premises let out by him are required by him for his own residence after his retirement, he may, at any time within a period of one year before the date of his retirement, apply to the Controller for recovering the immediate possession of such premises.
(3) Where the landlord referred to in Sub-
section (1) or Sub-section (2) has let out more than one premises, it shall be open to him to make an application under that sub-section in respect of only one of the premises chosen by him."
17. We have quoted the aforesaid provisions in extenso to exposit that the said provisions are quite different from the provisions we are required to interpret under M. P. Accommodation Control Act. In the case of J. D. Hingorani (supra) emphasis has been given that these sections emphasise on immediate possession and it is a clear indication that they may resort to these special proceedings under these three sections. The provision being different and emphasis being on immediacy, we are of the considered view the ratio laid down in the case of J. D. Hingorani (supra) would not be applicable to the present scenario and it is distinguishable.
18. We may advert to another aspect argued by Mr. Aradhe. It is proponed by him if a retired Government servant is allowed to take resort to the special provision in respect of a premises acquired after his retirement then he may Indulge in business and abuse the process of law. This argument is more imaginary than pragmatic. We cannot be obligious of the provision engrafted under Section 23-A of the Act. A landlord who has been given the privilege to invoke the said provision has to satisfy the bona fide requirement. In absence of bona fide need he would not be successful in evicting a tenant. A tenant can successfully bring it to the notice of the Rent Controlling Authority that the retired Government servant has no bona fide need because of his conduct. It is to be borne in mind, eviction is sought only on the ground of bona fide need and on no other ground in this chapter. Hence, we are of the considered opinion, that the apprehension that a retired Government servant would be engaged in a business of purchase of tenanted premises and seeking eviction is a farfetched one.
19. At this juncture, we may profitably refer to a recent Full Bench decision of this Court rendered in the case of Ashok Kumar v. Baboolal, 1998 (1) MPLJ 461 : (AIR 1998 MP 267) wherein the question of forum arose. The Full Bench held as under :
"..... the idea is that any of the landlords being a retired Government servant or a member of defence services or a retired servant of a company owned or controlled either by the Central or State Government, a widow or a divorced wife; or physically handicapped person etc., if such persons require premises for bona fide requirement then on that count, they can choose the Forum of Rent Controlling Authority under Chapter III-A."
And again, their Lordships proceeded to speak thus at Page 273 :--
"8. If the landlords defined in Section 23-J, want to avail the benefit of Chapter III-A then they can maintain a suit for eviction of a tenant before the Rent Controlling Authority on the ground of bona fide requirement and in case, they do not want to avail the special forum created under the Chapter III-A and want to invoke the ordinary Civil Court remedy then that forum will be available to them and their suit will not be dismissed on the ground that they should invoke the remedy provided under Chapter III-A. It will be open for the landlords to file a civil suit before the Civil Court on the basis of the bona fide requirement or on any other grounds mentioned in Section 12 of the Act. Similarly, it will be open for the landlords defined in Section 23-J to maintain a suit before the Rent Controlling Authority on the ground of reasonable bona fide requirement. The forum is for the benefit of the landlords defined under Section 23-J and that does not exclude the jurisdiction of the Civil Court, if the landlords so choose. It is the choice of the landlord and it cannot be restricted that he can only avail the remedy for eviction on the ground of reasonable bona fide requirement before that forum alone."
20. It is to be kept in mind that no litigant has any vested right to choose a forum. It is a privilege conferred on him by the Legislature. A speedy remedy has been provided to certain categories of landlords and we see no Justification to create a category within a category. As far as justifiability of classification is concerned, we have given reasons above to show that 'a retired Government servant' can constitute a separate class by itself and such classification is not hit by the equality clause as epitomised under Article 14 of the Constitution of India.
21. Mr. Alok Aradhe has also drawn our attention to the decisions rendered in the case of M/s. Rahabhar Productions Pvt. Ltd. v. Rajendra Tandon, AIR 1998 SC 1639 to highlight that the possession can be recovered by the landlord only for real, genuine and bona fide need and not for 'feigned need' and hence, a retired Government servant cannot be allowed to run the business of purchase and recovery of possession. We have carefully perused the said decision and like to reproduce paragraph 37 wherein their Lordships have lucidly culled out the propositions at Pages 1646-1647 :
"37. In view of the statutory provisions discussed above, specially in view of the fact that while introducing Sections 14A to 14D in the Act, no amendment was made in Section 25-B, we summarise the legal position relating to eviction proceedings initiated under Section 14-C, as under :
(i) Proceedings under Section 14-C can be initiated by a landlord who was in the service of the Central Government or Delhi Administration and has retired from service or is likely to retire within one year of the initiation of proceedings, but the retirement or likely retirement of the landlord does not give rise to a presumption that the premises are bona fide required by him. The landlord has also to plead and show that after retirement or likely retirement, no fresh assignment has been taken up or is likely to be taken up by him with the facility of a residential "quarter."
(ii) Possession can be recovered by the landlord only for real, genuine and bona fide need and not for "feigned" need.
(iii) Proceedings under Section 14C can be contested only when leave to contest is "granted by the Rent Controller; whether leave would be granted or refused would depend upon the nature of plea raised or circumstances shown by the tenant in his affidavit filed before the Rent Controller.
(iv) Section 25B does not place any restriction on the right of the tenant to raise pleas in defence within the parameters of Section 14C, namely, that he can plead and prove that notwithstanding the retirement or likely retirement of the landlord, the premises are not required by him for his own residence. No plea regarding the size of the landlord's family or the tenant's own family, whether it was likely to increase with son's marriage or decrease with daughter's marriage, can be raised by the tenant nor can he raise any plea as to the extent of accommodation or floor area or comparative hardship or partial eviction etc. as these are considerations which are not relevant under Section 14C. If, however, the landlord is already in occupation of his own house, part of which is in occupation of a tenant (as in the instant case) or where whole of the house, owned by the landlord, is in his personal occupation and he makes an application for eviction of a tenant occupying another house, the need of the landlord, with reference to his family strength and the extent of accommodation, at his disposal, will have to be examined vis-a-vis his requirement.
(v) Expeditious enquiry need to held or else the landlord, if he has already retired from service will be literally on the "street" during the pendency of the proceedings which, undoubtedly, take long to conclude particularly as one party, namely, the tenant, is inherently interested in delayed disposal. If the tenant was allowed to contest Section 14C application also with that attitude, giving him liberty to place all possible obstacles to retard the pace of the proceedings, legislative intent of providing immediate possession of the house to a retired, or likely to retire landlord, would be frustrated."
22. We have quoted in extenso because their Lordships were dealing with provisions of Delhi Rent Control Act, and the provisions of the said Act are quite different from the M. P. Accommodation Control Act, 1961. We would like to highlight that is that case of M/s. Rahabhar Production (supra) their Lordships gave immense emphasis on the immediacy and the need of the retired Government servant. As already indicated the aforesaid provisions of the Delhi Rent Control Act are quite different from the provisions we are dealing with. We are of the considered opinion that the retired Government servant would stand on a different footing than the other type of landlords and the language employed In the Statute cannot be curbed or curtailed to hold that a retired Government servant if he acquires a property after his retirement or lets out his property after his retirement ceases to be a retired Government servant for the purposes of Section 23-J of the Act cannot avail the said forum. In this context, we would like to quote with approval from Jenendra Kumar (supra) wherein the Division Bench opined asunder:
"6. The language of the provision is wide enough to include a retired Government servant, who acquires accommodation after his retirement. The words, "a retired servant of any Government including a retired member of Defence Services" are capable of only one interpretation and that every retired Government servant is a landlord within the meaning of this provision and, therefore, entitled to invoke special jurisdiction under Section 23A of the Act."
23. We would be failing in our duty if we do not state about the role of the Rent Controlling Authority. Section 23-C of the Act provides grant of leave to the tenant to defend his claim. In a case where a retired Government servant has come with the plea that he has let out the house after his retirement or has acquired the property after his retirement and let it out, leave should be granted so that, the landlord is put to test to prove his bona fides. In that event the concept of doing business by a retired Government servant in respect of purchase of tenanted houses would be ostracised because he has to prove the bona fide need very strictly. We may hasten to add the word 'need' is quite different than 'desire'. The need has to be quite real and sanguine.
24. In view of the aforesaid premises, we conclude and hold that the law laid down in the case of Jainendra Kumar (supra) is good law and it has rightly distinguished the decision rendered in the case of B. Jonhson (supra). We further hold that the decisions which are consistent with the principle laid down in Jainendra Kumar supra are held to be good law and the decisions which have followed the ratio of B. Jonhson (supra) do not lay down the correct position of law.
25. In view of our preceding analysis, we answer the reference as under :
"A retired Government servant who acquires accommodation after his retirement and lets out the same to a tenant, is entitled to invoke Section 23-A of the Act."
26. Let the matter be listed before the learned single Judge for disposal.