*HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR +C.R.P.M.P.No.3190 of 2010 and +CIVIL REVISION PETITION No. 4453 of 2009 %30.07.2010 # S.Lachman Singh … Petitioner And $ S. Satnam Singh … Respondent <GIST: >HEAD NOTE: ! Counsel for petitioner : Sri B. Sudhakar Reddy ^ Counsel for respondent : Sri J. Prabhakar ? CASES REFERRED: 1) (2002) 1 Supreme Court Cases 329 2) (2005) 2 Supreme Court Cases 271 3) 1995 Supp (3) Supreme Court Cases 172 4) AIR 1998 Supreme Court 2343 5) AIR 2000 Supreme Court 3076 HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P.M.P.No.3190 of 2010 and CIVIL REVISION PETITION No. 4453 of 2009 ORDER: This revision is preferred by the petitioner-tenant aggrieved by the concurrent findings of the learned Rent Controller and the Appellate Authority ordering eviction of the tenant under Section 10-C (c) of the Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Act, 1960, hereinafter referred to as “the Act”. 2. For the purpose of convenience and to avoid ambiguity in the discussion, the petitioner and the respondent herein are hereinafter referred to as “Tenant” and “Landlord” respectively. 3. The facts, in brief, are that the landlord under notice Ex.P.3 dated 06.04.2007 called upon the tenant to vacate the premises by specifically alleging as follows: “The landlord is now aged 66 years and he is suffering from acute knee problems and other aged related problems. The youngest son of the landlord by name S. Ravinder Singh Chawla has not settled down in life and the landlord has got responsibility to settle him in business by providing him commercial accommodation. The landlord wanted to start his business so that he can pass on the same to his son. The landlord found that the premises bearing Municipal No.15-8-344, ground floor, Chawla Building, Begum Bazar, Feelkhana, Hyderabad, is more suitable since the same is provided with attached bathroom and lavatory. The landlord has got every right to evict the tenant and recover possession from him under Section 1-C(c) of the A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 since the landlord is aged more than 65 years. The right of recovery of possession in respect of the said premises is exercised by the landlord for the first time for non-residential use.” Thereafter, the landlord filed the present eviction petition. In Para-3 of the eviction petition, it is stated as follows: “The landlord is the owner of Mulgi bearing Municipal No.15-8-344, Ground floor, Chawla Building, Begum Bazar, Feelkhana, Hyderabad, and the same is let out to the tenant for commercial purpose and the tenant is carrying on business in the name and style of Delhi-Hyderabad Transport & Company as a Proprietor and the tenant has been paying rent of Rs.1,100/- p.m. to the landlord. The landlord is now aged 66 years and he is suffering from acute knee problems and other aged related problems. The said premises is suitable to the landlord to have business and he has got every right to evict the tenant and recover possession from the tenant under Section 10-C(c) of the Act since the landlord is aged more than 65 years and the right of recovery of possession in respect of the said premises exercised by the landlord for the first time for non-residential purpose. The landlord got issued a legal notice to the tenant for his eviction on 06.04.2007 and the tenant acknowledged the notice and issued a reply notice on 18.04.2007 refusing to vacate the premises.” 4. The tenant filed a counter denying the allegations and stating that the landlord is having several properties in the twin cities and has also kept two mulgies (shop rooms) vacant in the ground floor and that the landlord has deliberately refused to receive the rents from April, 2006, whereupon the tenant had to file R.C.No.235 of 2006 on the file of the IV Addl. Rent Controller, Hyderabad, for depositing the rents into Court and he has been depositing the rents regularly. 5. The landlord was examined as P.W.1 and marked Exs.P.1 to P.5. While Ex.P.1 is the certified copy of driving licence, Ex.P.2 is the certified copy of passport. The aforesaid documents are filed to establish the date of birth of the landlord recorded in the said documents as 22.12.1940 and based thereon, it was alleged by the landlord that he is aged above 65 years and entitled to file the eviction petition under the newly inserted Section 10- C(c) of the Act. Exs.P.3 and P.4 are the notices exchanged between the parties referred to above and Ex.P.5 is the rough sketch plan. The General Power of Attorney Holder of the tenant was examined as R.W.1 and he marked Exs.R.1 General Power of Attorney executed in his favour by the tenant and Ex.R.2 is the certified copy of Irrevocable Power of Attorney bearing document No.2407/1992 executed by S. Balwant Singh Chawla, S. Mangat Singh Chawla and S. Paramjeet Singh jointly in favour of the landlord. The said document is filed and relied upon by the tenant to show that on the date of the said document i.e. 17.11.1992, the age of the landlord is stated to be 47 years and thereby it is further contended that the landlord cannot be aged 65 years to qualify under the aforesaid provision of the Act. Two other documents Exs.X.1 and X.2 were marked. During the cross- examination of P.W.1, he marked Ex.X.1 which is a visiting card of M/s. S.S. Auto Finance, which, according to the tenant, belongs to the sons of the landlord. Ex.X.2 is a photograph with negative with respect to a mulgi belonging to the landlord which is said to have been let out to M/s. C.L. & Sons. Ex.X.3 is also a photograph with negative of an adjacent mulgi which is also said to be vacant. Exs.X.2 and X.3 are marked to show that in the same building, the landlord has two mulgies, which were vacant, and one of which is let out, while the other continues to be vacant. 6. Basing on the aforesaid evidence, the learned Rent Controller came to the conclusion that Exs.P.1 and P.2 being official documents namely driving licence and passport are more authentic than Ex.R.2 and in view of the fact that Exs.P.1 and P.2 were obtained in the year 1996 and 2000 respectively, it cannot be said that the said documents are fabricated for the purpose of present eviction petition filed in the year 2005. The learned Rent Controller, therefore, accepted that the landlord is a senior citizen and has right to take possession of the petition schedule property and allowed the eviction petition, by order dated 30.06.2008. 7. In the appeal preferred by the tenant against the aforesaid order, the lower appellate Court also concurred with the findings of the learned Rent Controller and rejected Ex.R.2 on the ground that by the age of the landlord shown therein, the contention of the tenant that the landlord is only aged 63 years as on the date of the petition, cannot be accepted. The document Ex.R.2 is not proved by examining any person connected with the said document nor the said document is confronted to P.W.1. The lower appellate Court also accepted the date of birth of the landlord as shown in Exs.P.1 and P.2 and in the absence of proper rebuttal evidence on the part of the tenant, came to the conclusion that the landlord was aged about 68 years as on the date of filing of the eviction petition, and as such, he is entitled to seek eviction of the tenant. The lower appellate Court also found that in the amended provision of Section 10-C(c) of the Act the words “ required for use by landlord or his/her family members” are in contradiction to the words “bona fide required” as used in Section 10(3)(a)(iii) and 10(3)(c) of the Act. The lower appellate Court, therefore, felt that in the absence of the tenant establishing any contra evidence or mala fide and keeping in view the suitability of the petition schedule premises as pleaded by the landlord, the tenant is entitled to eviction, as prayed for. 8. In this revision petition, Mrs. B. Neeraja Sudhakar Reddy, learned counsel for the tenant, has elaborately made submissions based upon the evidence on record and has also relied upon the additional document filed before this Court during pendency of this revision. The said document proposed to be produced along with C.R.P.M.P.No.3190 of 2010 is the F.I.R. registered against the landlord on 21.03.2010 subsequent to and during pendency of the revision petition and it deserves to be taken into consideration, and accordingly, the application is ordered and the said document is received as evidence and marked as Ex.R.3 on behalf of the tenant. 9. The learned counsel for the tenant states that the very requirement of the landlord being aged 65 years or more under the amended provision 10-C(c) of the Act is not satisfied in the present case. The eviction petition under the aforesaid provision itself is not maintainable. The learned counsel would also lay emphasis on the conduct of the landlord as admittedly he has refused to receive the rents and thereby driving the tenant to file an application for deposit of rents into Court and further circumstance that admittedly the landlord has several mulgies, which were vacant on the date of eviction petition, and some mulgies, which have fallen vacant during pendency of the proceedings before the Courts below, have been let out by the landlord to other tenants. Thus, the benefit of the amended provision is not available to the landlord, as his requirement is merely fanciful. The learned counsel, therefore, submits that both the Courts below have not appreciated the aforesaid circumstances and did not take into consideration the admission of the landlord in evidence that he did not produce the date of birth certificate while obtaining Exs.P.1 and P.2, clinchingly shows that the date of birth mentioned in the said documents is neither true nor conclusive. The learned counsel supports the aforesaid contention by relying upon the contents of F.I.R. registered against the landlord based upon the complaint of the Regional Transport Officer, Hyderabad, West Zone, dated 19.03.2010 that driving licence was issued in the name of one Satyam Singh Chawla and not the present landlord whose name is Satnam Singh. The learned counsel, therefore, states that the very authenticity of Ex.P.1 driving licence, on which the landlord relies, casts a serious doubt about its genuineness and submits that the impugned orders are liable to be set aside on the aforesaid contentions. 10. The learned counsel for the landlord, on the contrary, contends that the aforesaid F.I.R. was registered by the police based upon the letter of the Regional Transport Officer dated 19.03.2010. The Regional Transport Officer addressed the said letter to the police based upon the complaint of the tenant dated 17.03.2010 and within 48 hours, the complaint dated 19.03.2010 was registered. He also submits that earlier the tenant had filed another complaint with the police on 28.12.2009 by alleging that the landlord had obtained passport and driving licence by playing fraud and that later he filed the present complaint with the Regional Transport Officer. The learned counsel also states that mere registration of F.I.R. does not amount to any proof of the contents of the complaint nor it can be said that the driving licence belongs to any other person, when the licence produced and marked as Ex.P.1 not only mentions the name of the landlord together with his father’s name but also contains the photograph of the landlord. He also submitted that Ex.P.2 passport issued by the Regional Passport Officer also contains the name and photograph of the landlord and it was issued way back on 15.12.2006 (29.08.2000 is the date of old passport). The amended provisions of the Act under A.P. Act, 17 of 2005 came into force with effect from 28.05.2005 and the present eviction petition is filed on 02.05.2007. He submits that it cannot be said that the landlord obtained driving licence on 24.09.1996 and later when he obtained passport on 29.08.2000 which is prior to Ex.P.2 recent passport, he had any inkling that the Act would be amended and such provision would be available for seeking eviction of the tenant. 11. The learned counsel also states that Ex.R.2 certified copy of Irrevocable Power of Attorney executed by third parties in favour of the landlord and the age of the landlord mentioned therein is by itself neither conclusive nor binding, apart from the fact that the said document is not proved in accordance with law. The learned counsel, therefore, submits that the schedule premises being one having attached bathroom and toilet, it was specifically pleaded in para-3 of the eviction petition that it is more suitable and as such the requirement of the landlord cannot be doubted. The learned counsel, therefore, urged that the concurrent findings of both the Courts below do not deserve to be interfered with in this revision petition. 12. In the light of the above contentions, the following questions arise for consideration: 1. Whether on the facts and circumstances of the case, the landlord has established that on the date of eviction petition, his age is 65 years or above? 2. Whether the words “required for use” employed under Section 10-C(c) of the Act are analogous to the bona fide requirement required to be established by the landlord in an application under Sections 10(3)(a)(iii) and 10(3)(c) of the Act? 13. For the sake of convenience, it is appropriate to extract hereunder Section 10-C of the Act which is inserted by amendment under the A.P. Act 17 of 2005: “10-C. Right to recover immediate possession of premises to accrue to a widow: - (1) Where the landlord is, --- a) a widow and the premises let out by her, or by her husband; b) a handicapped person and the premises let out by him; c) a person who is of the age of sixty-five years or more and the premises let out by him; or her; is required for use by him or her or for his or her family or for any one ordinarily living with him or her as the case may be for use he or she may apply to the Court for recovery of immediate possession of such premises. (2) Where the landlord referred to in sub-section (1) has let out more than one premises, it shall be open to him to make an application under that sub-section in respect of any one residential and one non- residential premises each chosen by him. Explanation I:- For the purpose of this section, ‘handicapped person” shall mean a person who is as if being an assessee entitled for the time being to the benefits of deduction under Section 80-U of the Income Tax Act, 1961 (Central Act 48 of 1961). Explanation II:- The right to recover possession under this section shall be exercisable only once in respect of each for residential and for non-residential use.” 14. The Statements and objects under the aforesaid Amendment Act are as follows: “Economic Administration Reform Commission and the National Commission on Urbanisation have recommended reform of the Rent Legislation in a way that balances the interests of both landlord and the tenant and also stimulates future construction. The Government of India have formulated a model rent control law and recommended to the State Governments to undertake amendments to existing rent control laws or enact new laws on the basis of the model law. It is considered necessary and expedient to amend the existing law to provide for regulation of rent and eviction in the spirit of modern economy in a manner more suited to our State, by adopting some provisions of the model rent control law and some of the existing law of rent control in the State. Therefore, it has been decided to amend the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (Act 15 of 1960). The purpose of amendments are to regulate residential rent increases in the State of Andhra Pradesh and to protect tenants from unwarranted rent increases and arbitrary, discriminatory or retaliatory evictions, in order to help maintain the diversity of the living community and to ensure compliance with legal obligations relating to the rental of housing and also to stimulate Private sector investment in rental housing. It is proposed to over come the housing crisis, and to preserve the public place, health and safety, and advance the housing policies with regard to low and fixed income persons, personnel of armed forces, minorities, widows, handicapped and the aged. The following are some of the features of the proposed measure:- (1) The provisions of the Act shall not apply,- (1) to any building the rent of which does not exceed rupees 3,500 per month in the areas covered by Municipal Corporations in the State and rupees two thousand per month in other areas (2) to any buildings constructed or substantially renovated either before or after the commencement of the Act for a period of fifteen years from the date of completion of such construction or substantial renovation. (ii) Right to recover immediate possession to certain specified categories like State or Central Government Employees, Members of Armed Forces, Widows, Aged and the Handicapped. This Bill seeks to give effect to the above decision.” 15. It is significant to notice that the amendment is intended to advance the housing policies with regard to low and fixed income persons, personnel of armed forces, minorities, widows, handicapped and the aged. Obviously, the intention behind the aforesaid provision is for ensuring and providing for immediate needs of the specified group of persons as above. 16. It is also significant to notice that under Explanation- 2, the right to recover possession is given to this group of persons only once with respect to each residential or non- residential usage. Thus, the provision is not intended to be available to such group of persons, as the same shall not apply at multiple points of time and if it is used once, even such persons will not be entitled to seek eviction under the aforesaid provision, except once for residential use and once for non-residential use. 17. The learned counsel for the tenant has relied upon a decision of the Supreme Court in S.N. Kapoor (Dead) by Lrs. V. Basant Lal Khatri and others[1] for the proposition that the special provisions for the benefit of landlord must be afforded a real, proper and effective consideration and they must be strictly construed. Reliance is placed upon para-8 of the judgment which is extracted hereunder: “That the landlord has no other building in New Delhi is not in controversy and it is also a fact specifically noticed also by the Rent Controller. The question that does really arise for consideration is, as to whether the claim of the landlady or the need to occupy the premises at New Delhi, in the circumstances, pleaded or demonstrated could be said to be not bona fide or reasonable merely because the landlady is residing, for the time being, at Bhopal - altogether a different city in a different State also, along with her son and his family notwithstanding her decision to live separately at New Delhi. The need felt by the landlady to do so does appear to be sincere and honest and not a mere pretence only to evict the tenant. No material has been brought on record and no proof has been made by the tenant by any positive material that it is neither genuine nor bona fide or reasonable but a mere excuse to get rid of the tenant. Though the choice or proclaimed need cannot be whimsical or merely fanciful yet certain amount of discretion has to be allowed in favour of the landlady too and Courts should not also impose its own wisdom forcibly upon the landlady to arrange her own affairs, according to their own perception carried away only by the interests or hardship of the tenant and inconvenience that may result to him in passing an order of eviction. In adjudging the claim under Section 14-D what is required to be substantiated is that the landlady is a widow and that she wants the premises for her own residence and that the claim by her is bona fide and not a feigned one. So far as a claim under Section 14(1)(e) is concerned, the very requirement has to be shown not only to be bona fide but the move of the landlord/landlady to seek the eviction of the tenant must be genuine. As far as the claim under Section 14-D is concerned, the widow-landlady's need for her own residence is recognized statutorily to be a valid one, but the move or request made to avail of the special benefit must be shown to be a bona fide and not a pretext only to get rid of the tenant. Viewed in the context of the indisputable facts on record that the widow has no other premises of her own at New Delhi and that she wants to reside away from Bhopal and aloof from her daughter-in-law are by themselves sufficient to sustain her claim. The rejection of the claim seems to be on hyper-technical appreciation of the materials on record and does not constitute a real, proper and effective consideration at all. Therefore, viewed from any angle, we find the need and requirement of the appellant-landlady to be bona fide and consequently an order of eviction shall follow. We allow the claim of the landlady for eviction and the appeal against the order dated 3-7- 2000 shall stand allowed.” 18. Another decision of the Supreme Court in Nathi Devi V. Radha Devi Gupta[2] is relied upon for the proposition that the provisions of this nature have to be strictly construed and that was a case of a widow seeking possession of the premises was held to be required not only to satisfy that she is a widow and requires the premises but also the requirement that the premises was let out by her or by her husband. On the facts of the case, it was found that the widow or her late husband who had acquired the tenanted premises by sale or transfer cannot invoke the provisions of Section 14-D to evict a pre- existing tenant. Based on the above decisions, the learned counsel vehemently contended that not only the landlord must satisfy that he is aged 65 years or more and that the premises is let out by him to the tenant and is required for use by him for his family. According to the learned counsel, neither of the conditions is satisfied in the present case. 19. Ex.P.1 drivining licence and Ex.P.2 passport being official documents are entitled to sufficient weight. The aforesaid documents marked by the landlord when he was examined as P.W.1. A strong reliance is placed upon the following sentences in the cross-examination of P.W.1: “…… I have not submitted my date of birth certificate while obtaining driving licence under Ex.P.1 and also at the time of obtaining Ex.P.2 passport. ……….. It is not true to say that I mentioned wrong date of birth and obtained Exs.P.1 and P.2.” The aforesaid cross-examination is relied upon to contend that non-production of date of birth certificate by the landlord while obtaining Exs.P.1 and P.2 coupled with the age of the landlord mentioned as 47 years in Ex.R.2 and the complaint lodged by the Regional Transport Officer under Ex.R.3 F.I.R. shows that the date of birth recorded in Exs.P.1 and P.2 is not authentic. I am afraid, the aforesaid contention also is not open to be canvassed. A normal presumption of correctness is attached to official documents of this nature. The presumption available against the aforesaid official documents cannot be displaced, except when strong rebuttal evidence is laid which destroys the said presumption. 20. Ex.R.2 produced by the tenant is an Irrevocable Power of Attorney executed by three executants