Civil Appeal No 4567 of 1989
From the Judgment and Order dated 22121988 of the Punjab  Haryana High Court in CR No 1327 of 1987
Gopal Subramanium ND Garg and Rajiv K Garg for the Appellant
JK Nayyar Rajeev Sharma and SK Bisaria for the Respondent
The short question for consideration in this appeal at the instance of the landlord in a proceeding for eviction under the East Punjab Urban Rent Restriction Act is as to whether the appellant before us is a specified landlord as defined in section 2hh of the Act
The High Court has decided against the landlord by relying upon the decision of this Court in the case of DN Malhotra vs Kartar Singh 1988 1 SCC 656
When this matter came before a 2 Judge Bench on 1681988 the following order was made This matter may be listed before a Bench of three Hon ble Judges two weeks hence for consideration of the question in the light of the decision of this Court in DN Malhotra vs Kartar Singh 1988 1 SCC 656 Section 2hh of the Act defines specified landlord  to mean 95 a person who is entitled to receive rent in respect of a building on his own account and who is holding or has held an appointment in a public service or post in connection with the affairs of the Union or of a State
 It is not disputed that the appellant was Reader to the Sessions Judge of Sangrur from where he retired on 30th of September 1981
He was thus holding a post in connection with affairs of a State
He was member of a Mitakshara family and the house in question was tenanted out to the respondent by his father in July 1982 and upon his father dying in the following month the tenant attorned to the appellant
Section 13 A of the Act provides Where a specified landlord at any time within one year prior to or within one year after the date of his retirement or after his retirement but within one year of the date of commencement of the East Punjab Urban Rent Restriction Amendment Act 1985 whichever is later applies to the Controller along with a certificate from the authority competent to remove him from service indicating the date of his retirement and his affidavit to the effect that he does not own and possess any other suitable accommodation in the local area in which he intends to reside to recover posses sion of his residential building or scheduled building as the case may be for his own occupation there shall accrue on and from the date of such application to such specified landlord notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force or in any contract whether expressed or implied custom or usage to the contrary a right to recover immediately the possession of such residential building or scheduled building or any part or parts of such building if it is let out in part or parts    The amendment came into force with effect from 16111985
The appellant applied for eviction on 1351986
Thus within one year of the enforcement of the Amending Act of 1985 the application for eviction was filed following the procedure laid down under the Act
Appellant s conten tion which has been rejected in the Courts below has been that all the ingredients of the definition of specified landlord  are satisfied and he should therefore have been admitted to be a 96 specified landlord and given the benefit of the special procedure
The High Court relied upon the following observa tions in Malhotra s case It has been urged before us on behalf of the respondent at the relevant time ie after retirement of the respondent from service within one year of the date of commencement of the said Act he is the landlord of the appel lant and as such he falls within the defini tion of section 2hh of the said Act and he becomes a specified landlord
This submission in our view cannot be sustained inasmuch as the words specified landlord  as used in section 2hh refer to the person in service of the Union who is a landlord at the time of his retirement from the public service or post in connection with the affairs of the Union or of State
It cannot in any manner include an ex serviceman who was not a specified landlord qua the tenant and the premises on or before the date of his retirement from the service of the Union
This has been very succinctly held by this Court in the case of Mrs Winifred Ross vs Mrs Ivy Fonseca which has been referred to hereinbefore
 Malhotra s case in terms relied upon an earlier decision of this Court in Mrs Winifred Ross vs Mrs Ivy Fonseca 1984 1 SCC 288 in support of its view
It is not disputed that on the ratio laid down by this Court in the two decisions referred to above the High Court had come to the correct conclusion that on the facts the appellant could not be a specified landlord
It is now for consideration whether the cases of Winifred Ross and DN Malhotra have been correctly decided
Winifred Ross case was considering section 13A of the Bombay Rents Hotel  Lodging Houses Rates Control Act of 1947
Section 13A had been brought into the Act in 1975
The said section provided 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 enti tled 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 97 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     b      Dealing with this provision this Court said The essential requirement is that he should have leased out the building while he was a member of the Armed Forces
His widow can also recover the premises of which she is or has become the landlord under clause b subject to fulfilment of the conditions
Having regard to the object and purposes of the Act and in particular Section 13 A 1 it is difficult to hold that Section 13 A 1 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
Acceptance of this argument will expose the very Section 13 A 1 of the Act to a successful challenge on the ground of violation of Article 14 of the Constitution for it that were so a retired military officer who has no house of his own can purchase any building in the occupation of a tenant after his retirement successfully evict a tenant living in it on the ground that he needs it for his use then sell it for a fancy price and again because he has no house of his own he can again acquire another building and deal with it in the same way
There appears to be n0 restriction on the number of times he can do so
It was argued that he would not be able to get the requisite certificate under the Act more than once
A reading of Section 13 A 1 of the Act shows that the certificate should show that the person concerned has been a member of the Armed Forces and that he does not possess any other suitable residence in the local area where he or members of his family can reside
Those 98 conditions being satisfied the certificate cannot be refused
A liberal construction of Section 13 A1 of the Act as it is being pressed upon us would also enable unscrupu lous landlords who cannot get rid of tenants to transfer their premises to ex military men as it has been done in this case in order to avail of the benefit of the said section with a private arrangement between them
It is also possible that a person who has retired from the Armed Forces may after retirement lease out a premises belonging to him in favour of a tenant and then seek his eviction at his will under Section 13 A 1 of the Act     A little later in the same decision this Court said Since a liberal interpretation of Section 13 A 1 of the Act is likely to expose it to a successful challenge on the basis of Article 14 of the Constitution it has to be read down as conferring benefit only on those members of the Armed Forces who were landlords of the premises in question while they were in serv ice even though they may avail of it after their retirement
Such a construction would save it from the criticism that it is discrim inatory and also would advance the object of enacting it namely that members of the Armed Forces should not while they are in service feel worried about the difficulties of a long drawn out litigation when they wish to get back the premises which they have leased out during their service
 In Malhotra s case this Court was called upon to con sider section 13A of the very Act with which we are now con cerned
On the basis of the ratio in Winifred Ross  case this Court came to the conclusion that until the landlord satisfied the test that he was a landlord qua the premises and the tenant at the time of his retirement or discharge from service he would not be entitled to the benefit of section 13A of the Act
It is not disputed that the appellant retired on 30th of September 1981
On the finding the appellant is right in his submission that this was not a case of transfer with an oblique motive but as the property belonged to a Mitakshara father upon his death the property has come to his hands
This feature which is different from the facts appearing in the two reported decisions however would not persuade us to give a different meaning to the definition in section 2hh
In both the cases for good reason this Court came to the conclusion that the public officer 99 should have been a landlord of the premises in question while in service
Admittedly the appellant was not the landlord before he superannuated
We are of the view that the opinion of this Court in Winifred Ross  case is unassailable and therefore the appellant would not be entitled to the benefit of the spe cial procedure in section 13A of the Act
The appeal fails and is dismissed
Parties are directed to bear their own costs
PSS Appeal dismissed


Summary:
The petitioner Madan Lal Anand was detained alongwith two other persons under section 31 of the  1974 COFEPOSA ACT
In the grounds of detention it was inter alia alleged that the detenu had imported polyester filament yarn and polyester fibre in the names of Ms Jasmine and Ms Expo International on the basis of Actual User advance licences obtained under the Duty Exemption Entitlement Certificate Scheme on the condition that they would manufac ture ready made garments out of the imported polyester filament and export the same that they had no intention to manufacture or export the manufactured goods as there was neither any machinery at their so called factory nor any power connection that investigations had revealed that both the firms had sold the imported polyester filament yarn in contravention of the orders and conditions of the advance licences and that the said firms were benami firms and Madan Lal Anand had played a very active and major role for obtaining advance licences in the names of the said firms importing the yarn and selling it in the local market
The three detenu including Madan Lal Anand filed a petition in the High Court of Punjab and Haryana praying for the issuance of a writ of habeas corpus and challenging the validity of the order of detention
The High Court dismissed the petition
Before this Court it was contended on behalf of the detenu that 734 i as the detenu was prevented from complying with the condition of the advance licence within six months of the first clearance by the issuance of an abeyance order by the by
Chief Controller of Imports  Exports the provision of section 1110 of the Customs Act was not violated for the goods could not be confiscated and accordingly there was no question of smuggling within the meaning of section 2e of the COFEPOSA ACT read with section 239 of the Customs Act 1962 ii certain documentsorders including the abeyance order which could influence the subjective satis faction of the detaining authority in favour of the detenu were not placed before him iii while the detaining au thority had relied upon and referred to the confessional statement of the detenu the retraction made by the detenu was not placed before the detaining authority iv the counter affidavit not having been sworn by the detaining authority himself the averments made therein should not be taken notice of v there was delay in considering the representation of the detenu and vi the life of each of the advance licences having expired there was no chance of the detenu now involving himself in smuggling activities
Dismissing the appeal as well as the writ petition this Court HELD 1 In view of clause 0 of section 111 of the if any goods exempted from payment of duty is imported without observing the condition subject to which the exemption has been made it will be a case of smuggling within the meaning of section 2e of the COFEPOSA ACT 740D 2 It was more than certain that the imported goods would not and could not be utilised in accordance with the condition of the advance licence the provision of section 1110 of the was violated on the very importa tion of the goods
There was therefore no substance in the contention that there was no smuggling in this case
741D 3 Even if certain documentsorders had not been placed before the detaining authority that could not in the least affect the subjective satisfaction of the detaining authori ty
742D Kirpal Mohan Virmani vs Tarun Roy  Vakil Singh vs State of Jammu  Kashmir and Kirit Kumar Chaman Lal Kundaliya vs Union of India  referred tO 4 The detenu was not prejudiced for non supply to him of the 735 copies of certain documents and accordingly there was no substance in the contention that there was non application of mind by the detaining authority
745C 5 Even assuming that the ground relating to the con fessional statement made by the detenu under section 108 of the was an inadmissible ground as the subsequent retraction of the confessional statement was not considered by the detaining authority still then that would not make the detention order bad for in the view of this Court such order of detention shall be deemed to have been made separately on each of such grounds
Therefore even exclud ing the inadmissible ground the order of detention can be justified
746A B Prakash Chandra Mehta vs Commissioner  Secretary Government of Kerala   referred to
6 There can be no doubt that a deponent who has no personal knowledge about any fact may on the basis of some other facts make his submission in court
746G 7 Merely because the detaining authority has not sworn an affidavit it will not in all circumstances be fatal to the sustenance of the order of detention
747H PL Lakhanpal vs Union of India  Ors
  Asgar Ali vs District Magistrate Burdwan  Ors and Suru Mallick vs State of West Bengal  referred to
8 There was no laches or negligence on the part of the detaining authority or the other authorities concerned in dealing with the representation of the detenu
The observa tions made by this Court that each day s delay in dealing with the representation must be adequately explained are meant to emphasize the expedition with which the representa tion must be considered and not that it is a magical formu la the slightest breach of which must result in the release of the detenu
749C D Mst
LMS Ummu Saleema vs Shri BB Gujaral   explained
9 The said two firms had really no existence and were the benami concerns of the detenu and the detenu if re leased may indulge in such economic offences in setting up fictitious firms and taking out 736 advance licences in the name of such firms
750B Achla Kakkar vs Administrator Union Territory of Delhi