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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CIVIL REVISION APPLICATION NO. 483 OF 2002
1. Smt. Sushila Gopal Patil,
age 67 years, occ. Household,
r/o Bhusawal, Municipal Park,
Bhusawal, Dist. Jalgaon.
2. Vijay Gopal Patil,
age 45 years, occ. Service,
r/o Nashik, Ravivar Karanja,
Nashik, Tal. & Dist. Nashik,
3. Dilip Gopal Patil,
age 43 years, occ. Service,
r/o Deepnagar,Tal. Bhusawal,
Dist. Jalgaon.
4. Anil Gopal Patil,
age 35 years, occ. Service,
r/o Deepnagar, Tal. Bhusawal
Dist. Jalgaon.
5. Mukund Gopal Patil,
age 32 years, occ. Nil,
r/o Bhusawal,Municipal Park,
Bhusawal, Dist. Jalgaon.
6. Sunil Gopal Patil,
age 30 years, occ. NIl,
r/o Bhusawal, Municipal Park,
Bhusawal, Dist. Jalgaon.
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Petitioner nos. 1 to 6 are
heirs of Original Tenant
Deceased Shri Gopal Kisan Patil ...Petitioners
(Orig. Opponents)
VERSUS
1. Shri Reshmasing Mehersing Khanguda,
age 49 years, occ. Business,
r/o Bhusawal, Garud Plot,
Bhusawal, Dist. Jalgaon. ...Respondent
(Orig. Applicant)
.....
Shri Amol Sawant, advocate for the petitioners
Shri N.R.Katneshwarkar, advocate for the respondent.
.....
CORAM : S.P. DAVARE, J.
DATE OF RESERVING
THE JUDGMENT : 22.6.2009.
DATE OF PRONOUNCING
THE JUDGMENT : 26.6.2009.
JUDGMENT:
1. In this Civil Revision Application, challenge is to the
legality and correctness of the order passed by the Competent
Authority, Nasik Division, Nasik Road under Bombay Rent Control
Act on 17.5.2002, by which he allowed the application of the
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respondent/landlord under Section 13A1 of the Bombay
Rents,Hotel and Lodging House Rates Control Act, 1947 and
directed the petitioners (tenants herein) to deliver vacant and
peaceful possession of the disputed premises to the
respondent/landlord.
2. The petitioners herein are original opponents (tenants)
and the respondent herein is original applicant (landlord). The
subject matter i.e. disputed property is two rooms on the ground
floor of the building bearing Old Municipal House No. 3781 (New
No. 7/174) of Bhusawal, District Jalgaon. Initially the suit property
was owned by one Shri Dulichand Savalram Agrawal, who let out
two rooms on the ground floor to Shri Gopal Kisan Patil (i.e.
husband of petitioner no.1 and father of petitioner nos. 2 to 6) on
rental basis in the year 1964. Admittedly, the disputed property
was let out for commercial purpose and the petitioners carry on
business of grocery shop therein since 1964.
3. The present respondent i.e. landlord was serving in
Indian Air Force and retired from Indian Air Force in the year
1973. After retirement the respondent/landlord purchased the suit
property from the owner Shri Agrawal by way of registered sale
deed (Exh.67) on 1.6.1982. In the year 1992, the
respondent/landlord instituted Regular Civil Suit No. 55 of 1992
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against the petitioners for decree of eviction and possession.
However, the said Regular Civil Suit No. 55 of 1992 was dismissed
and disposed of for want of prosecution on 8.8.1997. Meanwhile,
original tenant Shri G.K.Patil i.e. husband of petitioner no.1 and
father of petitioner nos. 2 to 6 expired in the year 1993.
4. After disposal of Regular Civil Suit No. 55 of 1992 as
afore said, the respondent/landlord filed Rent Application No.
CAN/1098/(17)/98 under Section 13A1 of the Bombay Rents, Hotel
and Lodging House Rates Control Act, 1947 (hereinafter referred
to as, “the Bombay Rent Act”) against the petitioners herein
before the Competent Authority, Nasik Division, Nasik Road,
praying for eviction and possession on 26.6.1998. Accordingly,
the Competent Authority, Nasik Division, Nasik Road allowed the
said application filed by the respondent/landlord under Section
13A1 of the Bombay Rent Act, by judgment and order dated
17.5.2002 and directed the petitioners herein to deliver the
vacant and peaceful possession of the disputed premises to the
respondent/landlord. Being aggrieved and dissatisfied by the said
judgment and order, the petitioners (tenants) have assailed its
legality and correctness in the present Civil Revision Application.
5. The main point, which is sought to be raised by the
petitioners in the present Civil Revision Application, is about the
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non-maintainability of the eviction proceedings initiated against
the petitioners by the respondent on the ground of bona fide
requirement in terms of Section 13A1 of the Bombay Rent Act,
after the retirement of the respondent/landlord from the Indian
Air Force, since the disputed property i.e. the suit property was
acquired by the respondent after his retirement from the Defence
Service i.e. Indian Air Force. It is the contention of the petitioners
that the respondent retired from the Indian Air Force in the year
1973 and thereafter purchased the suit property after the
substantial period i.e. on 1.6.1982 by way of registered sale deed
and the eviction proceedings were initiated on the ground of
bona fide requirement in accordance with Section 13A1 of the
said Act in the year 1998 and hence the same is not maintainable.
6. In the said context, the learned counsel for the
respondent countered the said argument and submitted that
Section 13A1 of the Bombay Rent Act nowhere spells out that the
landlord is entitled to recover the possession of the premises only
if he acquired the same during the Military service and, therefore,
submitted that the contention raised by the learned counsel for
the petitioners bears no substance, since it is not one of the
ingredients of Section 13A1 of the Bombay Rent Act.
7. To substantiate the contention of the petitioners, the
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learned counsel for the petitioners relied upon the observations
made by the Honourable Supreme Court in the judgment
reported at 1983 DGLS 377 : 1984 AIR (SC) 458,
E.S.Venkataramiah : R.B.Misra : JJ, in the case of Winifred Ross vs
Ivy Fonseca, in which it is held as follows :
” The object of S. 13-A1 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 S.13-A1
shows that the person who wishes to claim the
benefit of that S. should be a landlord of the
premises while he is a member of the armed
forces 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. ”
8. 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
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leased out premises under Section 13A1 of the Bombay Rent Act
when he himself has leased out the premises while he had been a
member of the Armed Forces. In substance, a person/landlord,
who becomes landlord of the property after his retirement from
the Armed Forces, would not be entitled to recover possession of
the leased out premises by virtue of provisions contained in
Section 13A1 of the Bombay Rent Act.
9.
Applying the said parameters in the instant case, it is
abundantly clear that the respondent retired from the Indian Air
Force in the year 1973 and thereafter after the lapse of
substantial period he purchased the suit property from the earlier
owner Shri Agrawal by virtue of registered sale deed vide Exh.67
on 1.6.1982 and the application was filed by the
respondent/landlord before the Competent Authority under
Section 13A1 of the Bombay Rent Act praying for eviction of the
petitioners on 26.6.1998. Hence, it is crystal clear that the
respondent/landlord acquired the disputed premises as owner
thereof after his retirement from the Indian Air Force and
thereafter initiated the eviction proceedings on the ground of
bona fide requirement in terms of Section 13A1 of the Bombay
Rent Act in the year 1998. Thus, there is no dispute that the
respondent/landlord, who had initiated the proceedings under
Section 13A1 of the Bombay Rent Act, for eviction of the
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petitioners from the disputed premises, did not acquire the title to
the disputed premises while he was in the service of Indian Air
Force and he purchased the said premises only after his
retirement by virtue of sale deed dated 1.6.1982.
10. In this view of the matter, the decision of the Apex
Court in the matter of Winifred Ross (supra) is clearly applicable
to the facts of the present case and, therefore, applying the tests
laid by the Honourable Supreme Court in the above said decision,
the impugned order dated 17.5.2002 shall not sustain and,
therefore, the same is liable to be quashed and set aside.
11. Moreover, reliance also can be placed on the
observations made by the Honourable Supreme Court in the case
reported at 1984 DGLS 27 : 1984 AIR (SC) 786, E.S..
Venkataramiah : O.Chinnappa Reddy : R.B.Misra, JJ., in the case of
Shivram Anand Shiroor vs Radhabai Shantram Kowshik, in which
it is held as follows :
” Having regard to the object and
purposes of the Act and in particular S.13 A1 it
is difficult to hold that S.13 A1 can be availed of
by an ex-member of the armed forces to
recover from a tenant possession of a building
which he acquires after his retirement ……
……… ……… ……… ……….
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The statement of objects and
reasons was read to us. It says :
DEFENCE services personnel are
liable to transfers 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 exservice 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.
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
each personnel to regain possession of their
premises have been simplified and made more
effective.
IT is considered necessary to make
a special provision in the Bombay Rents, Hotel
and Lodging House Rates Control Act, 1947 to
enable 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
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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. The Bill
is intended to achieve these objects.
……… ……….. ………. ………
12. Thus, after discussing
ig the aims and reasons of
incorporating Section 13A1 of the Bombay Rent Act, the
Honourable Supreme Court in the said case endorsed the view
expressed in the earlier case by the Division Bench of the
Honourable Supreme Court reported at 1983 DGLS 377 : 1984
AIR (SC) 458 Winifred Ross vs Ivy Fonseca.
13. Relying upon the afore said Judgments, Single Judge of
this court also held in the case reported at 1998 (3) Mh.L.J. 211 in
the case of Satish Kumar Banwarilal Sharma vs Major Virendra
D.Ganju as follows :
” A landlord who is or who had been in
military service can recover possession of the
leased premises under section 13(A)(1) of the
Bombay Rents, Hotel and Lodging House Rates
Control Act, 1947 when he himself had leased
out the premises while he had been a member of
the armed forces. A person who acquires the
property and title of landlordship after his
retirement from the armed forces he would not
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be entitled to recover possession of the leased
premises by virtue of provision contained in
section 13(A)(1).
Where a member of the armed forces
retired in May 1990 and purchased residential
premises on 16.8.1990 which had been let out,
eviction proceedings initiated under section 13
(A)(1) of the Bombay Rents, Hotel and Lodging
House Rates Control Act, 1947 on 29.8.1992
were not maintainable. ”
14. Thus it is
ig necessary to hold that the
respondent/landlord could not have initiated the proceedings for
eviction under the provisions of Section 13A1 of the Bombay Rent
Act in view of the foregoing discussion since the said eviction
proceeding was filed solely on the ground of bona fide
requirement of the respondent/landlord after having retired from
Indian Air Force, but in respect of the premises which was
purchased after retirement and since the eviction proceeding has
not been initiated on any other ground, the impugned order
passed by the learned Competent Authority, Nasik Division, Nasik
Road on 17.5.1982 shall not sustain and same is liable to be
quashed and set aside.
15. The learned counsel for the petitioners also canvassed
the other points, such as, the landlord did not obtain leave of the
court while disposing of Regular Civil Suit No. 55 of 1992 for filing
application before the Competent Authority and such non-
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obtaining of leave is fatal to the application filed by the
respondent/landlord before the Competent Authority for eviction.
However, in the said context, the learned counsel for the
respondent pointed out that the provision of Section 31H of the
Bombay Rent Act is applicable to pending suits and proceedings
in the court. Besides that the learned counsel for the petitioners
also made submission that the landlord acquired rooms in the
same building during the pendency of the application before the
Competent Authority and presently he is in possession of 14
rooms and has failed to adduce and produce evidence in respect
of bona fide requirement. It is also submitted that the disputed
premises is the commercial premises and Section 13A1 of the
Bombay Rent Act is meant for residential premises.
16. However, in view of the fact of arriving to the
conclusion that the application preferred by the
respondent/landlord before the Competent Authority was not
maintainable under Section 13A1 of the Bombay Rent Act, this
court need not express any opinion regarding the other points
sought to be agitated in the present Civil Revision Application.
17. In the result, Civil Revision Application succeeds. The
impugned order passed by the learned Competent Authority,
Nasik Division, Nasik Road in case no. CAN 1098(17)/98 on
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17.5.2002 stands quashed and set aside. Rule is made absolute
in the afore said terms. In view of the facts and circumstances,
there shall be no order as to costs.
(S.P. DAVARE, J.)
dbm/cra483.02
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