{"id":122624,"date":"2002-04-03T00:00:00","date_gmt":"2002-04-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ombalika-das-anr-vs-hulisa-shaw-on-3-april-2002"},"modified":"2015-12-28T03:22:19","modified_gmt":"2015-12-27T21:52:19","slug":"ombalika-das-anr-vs-hulisa-shaw-on-3-april-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ombalika-das-anr-vs-hulisa-shaw-on-3-april-2002","title":{"rendered":"Ombalika Das & Anr vs Hulisa Shaw on 3 April, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ombalika Das & Anr vs Hulisa Shaw on 3 April, 2002<\/div>\n
Author: R Lahoti<\/div>\n
Bench: R.C. Lahoti, P. Venkatarama Reddi<\/div>\n
           CASE NO.:\nAppeal (civil) 913  of  2001\n\n\n\nPETITIONER:\nOMBALIKA DAS & ANR.\n\n\tVs.\n\nRESPONDENT:\nHULISA SHAW\n\nDATE OF JUDGMENT:\t03\/04\/2002\n\nBENCH:\nR.C. Lahoti & P. Venkatarama Reddi\n\n\n\n\nJUDGMENT:\n<\/pre>\n
R.C. Lahoti, J.\n<\/p>\n
\tColonel P.G. Sarcar,  the father  of  the  two appellants  before  us,
\nwas  serving  as  Superintending Engineer(Civil), Selection Grade,
\nequivalent to  Colonel\tin  the General Reserve Engineering  Force, which
\nis said\t to  be an integral part of the Armed Forces.  He retired from\this
\npost on 31st March, 1995.  On 14th September, 1995, his two major
\ndaughters, who are  the\t appellants, claiming themselves to be\tresiding
\nwith their father and as dependent on him, initiated   proceedings  for
\neviction   of  the   tenant,  the respondent  before us, under Section 13(1)(ff)
\nof the West Bengal  Premises Tenancy Act, 1956 (hereinafter  referred to as
\n`the Act’, for short) by having recourse to summary procedure  under
\nChapter\t VIA of the  Act.   The\t tenant\t  sought for leave to defend which
\nwas denied on the ground  that\tthe  application seeking leave to defend was
\nfiled beyond  the time prescribed therefor.  The tenant, laying challenge  to
\nthe order of the Rent Controller, preferred a  petition under Article 227 of
\nthe Constitution  before the  High  Court, but the same was dismissed.\t The
\nRent   Controller  then, treating the statement by the landlords    made  in
\nthe application for eviction deemed to have been   admitted  by the tenant,
\npassed an order for recovery  of  possession of the premises.  The tenant
\npreferred a Civil Revision  before  the High Court, which has been  allowed
\nand  in supersession of the order of the trial court, the   eviction  petition
\nfiled  by  the\tlandlords  has\tbeen  directed\tto  be dismissed.  In the
\nopinion of  the\t High  Court,  the father of the two   appellants, in  view of
\nhis   having  retired, was not a member of Military Services on\t   the\tdate
\nof institution of proceedings for eviction  and\t therefore,  his  major
\ndaughters were not entitled to have    recourse\t  to   special\tprocedure    for
\ndisposal   of\tapplication  for  eviction  on the ground of  bona  fide
\nrequirement prescribed by Section 29B (Chapter VIA of the Act);\t they
\ncould  have had recourse to the forum  of  Civil  Court.  Feeling aggrieved
\nby the order of the High Court, the landlords have filed this appeal by
\nspecial leave.\n<\/p>\n
\tThe short  question  arising  for  decision  is, whether  major
\nrelations of the military personnel,  who has  stood retired from the service
\nand  thereby  has ceased to be a member of service, are entitled to the
\nbenefit\t of special procedure prescribed by Section  29B, for the recovery of
\npossession under Section 13(1)(ff) of the Act.\n<\/p>\n
\tSection 13(1)(ff) and Section 29B read as under :\n<\/p>\n
\t“S.13. Protection of tenant against eviction.__(1)
\nNotwithstanding anything to the contrary in any other
\nlaw, no order or decree for the recovery of possession
\nof any premises shall be made by any Court in favour
\nof the landlord against a tenant except on one or more
\nof the following grounds, namely:-\n<\/p>\n
xxx\t\txxx\t\txxx\t\txxx<\/p>\n
(ff)\tsubject to the provisions of sub-section (3-A),
\nwhere the premises are reasonably required by
\nthe landlord for his own occupation if he is the
\nowner or for the occupation of any person for
\nwhose benefit the premises are held and the
\nlandlord or such persons is not in possession of
\nany reasonably suitable accommodation.”\n<\/p>\n
“S.29B. Special Procedure for disposal of
\napplications for  eviction on the ground of bona fide
\nrequirement. – No Civil Court shall entertain any
\napplication by a landlord being a Government
\nemployee,  and\t who  being  in occupation   of\t any
\nresidential   premises allotted\t to him by his employer,
\nis  required by,  or in pursuance of, an order made by
\nsuch employer,\t to    vacate\t such\tresidential
\naccommodation,\tor in default to incur certain
\nobligations  on\t the  ground that  he  owns  a
\nresidential  accommodation  either in his  own name
\nor in the name of his wife or  dependent child at or
\nnear the  place where he is posted for\tthe time being,
\n[or by a landlord who has retired,  or\twill retire within
\na  period  of less  than one year, as a member of the
\nnaval, military\t or air force of the Union of  India, or
\nby a landlord who is the parent or the wife of\tsuch
\nmember of the naval, military or  air force  of the
\nUnion of India, or by a landlord who is a relation
\n(other than a minor child or the  widow) and a
\ndependant of a member of the naval,  military or air
\nforce of the Union  of India  and  ordinarily resides
\nwith him  or  a minor  child  or the widow of such
\nmember\twho dies  while in service or within five
\nyears of retirement] for the recovery of possession  of
\nany premises on the ground specified in clause (ff) of
\nsub-section (1) of section 13 but such application  shall
\nbe  dealt   with  by   the Controller  in  accordance with
\nthe  procedure specified in this section.\n<\/p>\n
\t(2) Whenever any application is filed before the
\nController by a landlord referred to in sub-section(1)
\nfor the recovery of possession of any premises on the
\nground specified in clause (ff) of sub-section (1) of
\nsection 13, the Controller shall issue summons, in the
\nform specified in the Second Schedule.\n<\/p>\n
“Provided that__<\/p>\n
(a)\twhere the landlord has retired, or will retire
\nwithin a period of less than one year, as a
\nmember of the naval, military or air force of the
\nUnion of India, a certificate by the Area or Sub-
\nArea Commander within whose jurisdiction the
\npremises are situated or by the Head of his
\nService or by his Commanding Officer that he
\nhas retired, or will retire, as such member and
\nthat he requires the premises for his own
\noccupation and for the occupation of his family
\nafter retirement, or<\/p>\n
(b)\twhere the landlord is the parent or the wife of
\nsuch member of the naval, military or air force
\nof the Union of India as aforesaid, a certificate
\nby the Area or Sub-Area Commander within
\nwhose jurisdiction the premises are situated that
\nhe or she is the parent or the wife, as the  case
\nmay be, of such member of the naval, military
\nor air force of the Union of India and that he or
\nshe requires the premises for his or her own
\noccupation and for the occupation of his or her
\nfamily after the retirement of such member, or<\/p>\n
(c)\twhere the landlord is a relation (other than a
\nminor child or the widow) and a dependant of a
\nmember of the naval, military or air force of the
\nUnion of India and ordinarily resides with him
\nor a minor child or the widow of such member
\nwho dies while in service or within five years of
\nretirement, a certificate by the Area or Sub-Area
\nCommander within whose jurisdiction the
\npremises are situated that he or she is the
\nrelation and dependant as aforesaid or the minor
\nchild or the widow, as the case may be, of the
\ndeceased member of the naval, military or air
\nforce of the Union of India and that he or she
\nrequires the premises for his or her own
\noccupation and for the occupation of his or her
\nfamily,<\/p>\n
shall be produced before the Controller while filing the
\napplication, and such certificate shall be conclusive
\nevidence of the fact stated therein.”.\n<\/p>\n
\tThe  portion, which is placed between brackets ‘[  ]’ in the text of
\nthe provision reproduced hereinabove, has been substituted by West
\nBengal Premises Tenancy (Amendment) Act, 1979 (Act XLI of 1979) with
\neffect from 17th March, 1980 in place of the words which earlier read as :
\n“or by a landlord who is a retired member of  the
\nnaval,\t military  or  air force  of  the Union\t of India or
\nwill retire  within  a period of less than one year as
\nsuch member,”\n<\/p>\n
\tThe provisos (a), (b) and (c) to Sub-Section (2), in the present form,
\nwere also added by the 1979 Amendment.\n<\/p>\n
\tThe Statement of Objects and Reasons for the above amendment is
\nset out in the Bill as under :\n<\/p>\n
     “Section  29B of the West\tBengal\tPremises
\nTenancy\t Act,  1956,  as amended by  the  West
\nBengal Premises Tenancy (Amendment) Act,1978,
\nprovides  some\trelief,\t inter\talia,  to  the retiring or
\nretired\t members of  the  naval, military or air force of
\nthe Union of India in the matter of getting back
\npossession of their own\t premises let out to tenants, by
\na special procedure laid down therein.\tIt is considered
\nnecessary  that the same relief should also be extended
\nto  the parent or the wife of such member  of the naval,
\nmilitary or air force of the  Union  of\t India\tor  the
\nrelation  and dependant\t (other\t than a minor child  or
\nthe widow)  or\tthe minor child or the widow of\t a
\nmember\tof the naval, military or air force of the
\nUnion of India who dies while in  service or within
\nfive years of retirement.”\n<\/p>\n
(See  the Calcutta Gazette  Extraordinary dated
\nAugust 29, 1979 page 1630)<\/p>\n
\tSub-Section (1) of Section 29B, as it now stands, contemplates the
\nfollowing four categories of landlords, the fourth one again sub-divided
\ninto two sub-categories, who can take advantages of the special procedure
\nfor disposal of application for eviction on the ground of bona fide
\nrequirement.  These are:-\n<\/p>\n
(i)\ta landlord being a Government  employee,  and\twho  being  in
\noccupation   of\t any\tresidential   premises allotted\t to him by his
\nemployer, is  required by,  or in pursuance of, an order made by such
\nemployer,   to\t  vacate    such   residential accommodation,  or in
\ndefault to incur certain obligations  on  the  ground that  he\towns  a
\nresidential  accommodation  either in his  own name  or in the name
\nof his wife or\tdependent child at or near the\tplace where he is
\nposted for  the time being;\n<\/p>\n
(ii)\ta landlord who has retired,  or\t will retire within a  period  of less
\nthan one year, as a member of the naval, military  or air force of the
\nUnion of  India;\n<\/p>\n
(iii)\ta landlord who is the parent or the wife of  such member of the
\nnaval, military or  air force  of the Union of India;\n<\/p>\n
(iv)\ta landlord who is:\n<\/p>\n
     (a) a relation (other than a minor child or the widow) and a dependent of
\na member of the naval, military or air force of the Union of India and
\nordinarily resides with him,
\nor<\/p>\n
    (b)\t a minor child or the widow
\nof such member who dies while in service or within five years of
\nretirement.\n<\/p>\n
\tSub-Section (1), as it now stands, having been given its present
\nshape, consequent upon additions made by atleast two amendments, is a
\nlong sentence incorporating within its ken several categories of landlords,
\nwhich, though confusing to comprehend at the first blush, can nevertheless
\nbe separated and defined by a careful reading of the provision so as to find
\nout the intention of the Legislature.  We will concentrate on the 1979
\nAmendment because the category, to which the appellants belong, was
\nincluded in Section 29B by this amendment.  A comparative reading of the
\ntext of the provision, pre and post amendment, reveals a few prominent
\nfeatures.  The expression ‘a retired member’ was not a very appropriate
\nexpression and therefore, the Legislature availed the opportunity for
\nsubstituting a better and more perfect expression in substitution thereof
\nthough retaining in the newly introduced text, the class of landlord referred
\nto in the omitted text, and making the text, along with newly  included
\nclasses of landlord, more clear and meaningful.\t The category of landlord
\n‘being a government employee’ was retained as before and left untouched.
\nHowever, the landlord, who is either himself a member of the naval,
\nmilitary or air force or who is connected with such member by relationship
\ncoupled with dependence and joint residence, upon whom the Legislature
\nintended to confer the benefit of Section 29B, were all included in the text
\nof the amendment. For category (ii) landlord, the eligibility requirement is
\nthat he should be a member of the naval, military or air force of the Union
\nof India on the date of retirement, though the action for recovery of
\npossession may be commenced within a period of less than one year of
\nretirement or post retirement.\tIn category (iii), by using the word ‘such’ as
\nqualifying the word ‘member’ in the context of his parent or the wife, the
\nintention of the Legislature is to confer the benefit of Section 29B on a
\nlandlord who is a parent or the wife of a member of the naval, military or
\nair force of the Union of India, who has retired or will retire within a period
\nof less than one year.\tThus, a member__landlord and a parent or the wife of
\nsuch member, who is himself or herself a landlord, are placed on the same
\nfooting.  While dealing with landlord falling in category (iv), the
\nLegislature has consciously not used the words ‘such member’ in the
\ncontext of a relation.\tIf the words would have been a relation of ‘such
\nmember’ then the word ‘member’ would have taken the same colour as has
\nbeen given to the word ‘member’ in category (ii).  By using the word ‘a
\nmember’ in this part of the running sentence, the intention of the
\nLegislature is that here the word ‘member’ should take a colour different
\nfrom the one assigned to ‘a member’ and ‘such member’ in category (ii)
\nand (iii) respectively.\t While dealing with category (iv) and touching sub-
\ncategory (a), the Legislature once again uses the expression __ ‘a member of
\nthe naval, military or air force of the Union of India’ and while passing on
\nto sub-category (b) prefixes adjective ‘such’ to noun ‘member’; meaning
\nthereby, that in sub-category(b), ‘member’ has to be read in the same sense
\nas is attributable to it in the preceding part of the sentence dealing with sub-
\ncategory (a) of category (iv).\tIn addition, the word ‘such member’ is
\nqualified by ‘who dies while in service or within five years of retirement’.
\nIn the context of that part of the sentence which has been added by 1979
\nAmendment, a relation (dependent and co-resident) is treated on par with a
\nminor child or the widow (of a member of the naval, military or air force of
\nthe Union of India’).  The reason is not far to seek.  The Legislature feels
\nthat a relation, dependent and ordinarily resident with a member, and minor
\nchild or widow of such member __ all the three categories of landlord are
\nsuch whose requirement for self occupation of tenanted premises would
\narise on account of death of a member while in service or even after
\nretirement; else such relation, a minor child or the wife would continue to
\nreside with such member.  However, death of such member, as an event
\nthough unfortunate but conferring eligibility for invoking Section 29B on a
\nrelation (dependent and jointly residing), or a minor child or the widow,
\nshould have taken place while such member is in service or within five
\nyears of retirement.\n<\/p>\n
\tRecently in Central Bank of India Vs. Ravindra & Ors., (2002) 1
\nSCC 367, a Constitution Bench of this Court has observed that the use of
\nthe word ‘such’ as an adjective prefixed to a noun is indicative of the
\ndraftsman’s intention that he is assigning the same meaning or
\ncharacteristics to the noun as has been previously indicated or that he is
\nreferring to something which has been said before.  New Webster’s
\nDictionary and Thesaurus was cited with approval wherein the meaning of
\n‘such’ is given as “of a kind previously or about to be mentioned or
\nimplied; of the same quality as something just mentioned (used to avoid the
\nrepetition of one word twice in a sentence); of a degree or quantity stated or
\nimplicit; the same as something just mentioned (used to avoid repetition of
\none word twice in a sentence); that part of something just stated or about to
\nbe stated”.\n<\/p>\n
\tWe do not agree with the construction placed by the High Court on
\nthe relevant part of Section 29B which is under consideration.\tA relation,
\nwho is a dependent and also jointly residing with member of naval, military
\nor air force of the Union of India would hardly have an occasion or need to
\ninitiate proceedings for eviction so long as such member is alive and in
\nservice.  We are clearly of the opinion that a relation (dependent and jointly
\nresiding), a minor child and the widow __ are such three classes as the
\nLegislature intended to treat on a par.\t Our this inference and such
\nclassification into the several categories, as we have made hereinabove,
\nfinds support from proviso (a), (b) and (c).  Category (ii) is dealt with by
\nproviso (a).  Category (iii) is dealt with by proviso (b).  Category (iv) is
\ndealt with by proviso (c).  According to proviso (c), the certificate by the
\nArea or Sub-Area Commander of the jurisdiction is to be issued by
\nreference to the two sub-categories, viz.: (i) the relation and dependent as
\naforesaid, or (ii) the minor child or the widow, as the case may be __ all
\nreferable to the deceased member and the requirement of premises being for
\nhis or her own occupation and for the occupation of his or her family.\n<\/p>\n
\tIt is well settled that classification for the purpose of legislation
\ncannot be done with mathematical precision.  The Legislature enjoys
\nconsiderable latitude while exercising its wisdom taking into consideration
\nmyriad circumstances, enriched by its experience and strengthened by
\npeople’s will.\tSo long as the classification can withstand the test of Article
\n14 of Constitution, it cannot be questioned why one subject was included
\nand the other left out and why one was given more benefit than the other.\n<\/p>\n
\tLearned counsel for  the appellants submitted that real\t need  of such
\nlandlord (as like the appellants) arises when the person, whose relation he
\nor she is,  has ceased to be in service and therefore,\tthe provision  should
\nbe so interpreted as to advance the purpose sought to be achieved by
\nenacting the provision.\t We find it difficult to agree.\t  Resort can  be  had
\nto legislative intent for the  purpose of interpreting a provision of law, when
\nthe language employed by the Legislature is doubtful or susceptible of
\nmeanings more than one.\t However, when the language is plain and explicit
\nand does not admit of any doubtful interpretation, in that case, we cannot,
\nby reference to an assumed legislative intent, expand the meaning of an
\nexpression employed by the Legislature and therein include such category
\nof persons as the legislature has  not\tchosen to do.  We cannot also hold
\nthat the special procedure of Section 29B can be taken advantage of by a
\nlandlord who is a relation of a member of such service, after his retirement,
\nwithin five years of the date of retirement because in our opinion, the words
\n“while in service or within five years of retirement”  qualify the preceding
\nwords “of such member who  dies”, and are, therefore, referable to the
\nevent of  death of such member.\t If only the Legislature would have
\nintended that the benefit of Section 29B should be available to a landlord
\nwho is a relation of a member of such service even after his  retirement and
\nliving, in  that  case, in the part of the provision which is under
\nconsideration  the Legislature would have used some such words as “a
\nmember or  retired member” or simply “such member” instead of “a
\nmember”, in which case there could have been some merit in the
\nsubmission made by  the learned counsel for  the appellants.  But, the
\nLegislature has not chosen to do so.\n<\/p>\n
\tAs we agree with the High Court that the  petition under Section
\n13(1)(ff) read with Section 29B was not maintainable, though for reason
\ndifferent from the one assigned by the High Court, it is not necessary to
\nexamine the alternative submission made by the learned counsel for
\nthe  respondent that Colonel P.G.  Sarcar, the father of  the appellants was a
\nmember of Border Roads Organisation   set up by and under the control of
\nMinistry of Transport of the Government of India and hence, was not a
\nmember\tof  military services.\n<\/p>\n
\tThe  dismissal\tof this petition, needless to  say,  would  not debar
\nthe appellants from seeking the remedy of  recovery  of\t possession from
\nthe  tenant-respondent\tby having  recourse  to\t such other provision of law
\nand  such other Forum, as may be available to them.\n<\/p>\n
\tThe  appeal is dismissed, though, without any  order  as to costs.\n<\/p>\n
\t\t\t\t\t  .. …………………..J
\n\t\t\t\t\t(R.C. LAHOTI)<\/p>\n
\t\t\t\t\t…………………….J.\n<\/p>\n
\t\t\t\t\t (P.VENKATARAMA REDDI)
\nApril  3, 2002.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ombalika Das & Anr vs Hulisa Shaw on 3 April, 2002 Author: R Lahoti Bench: R.C. Lahoti, P. Venkatarama Reddi CASE NO.: Appeal (civil) 913 of 2001 PETITIONER: OMBALIKA DAS & ANR. Vs. RESPONDENT: HULISA SHAW DATE OF JUDGMENT: 03\/04\/2002 BENCH: R.C. Lahoti & P. Venkatarama Reddi JUDGMENT: R.C. Lahoti, J. 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