1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION No. 567 OF 1994 Shri Sudhakar Karbhari Dorge, Age 40 years, Occu. Service, R/o Shivaji Road, Kopergaon, Dist. Ahmedngar. ....Petitioner. Versus Shri Balmukund Kashinath Bajaj, Age 60 years, Occu. Business, R/o H.No. 1303-B, Shivaji Road, Tq. Kopergaon, Dist. Ahmednagar died 1-A] Smt. Ayodhyabai Balmukund Bajaj, Age 85 years, Occu. Household, R/o H.No. 1303-B, Shivaji Road, Kopergaon, Tq. Kopergaon, Dist. Ahmednagar. ....Respondent. Shri V.R. Dhorde, Advocate h/f R.N. Dhorde, Advocate for petitioner. Shri. V.J. Dixit, Senior Counsel for respondent. CORAM : R.K. DESHPANDE, J. DATE : 15th July, 2010. ORAL JUDGMENT : 1. This Writ Petition challenges, the order dated 31/12/1993 passed by the competent authority under Section 13 A1 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (here-in-after 2 referred as ‘said Act’), dismissing the application filed by the petitioner for eviction and possession of the disputed premises from the respondent which was registered as case No. CAN/1089/(40)/89. 2. The facts of the case are as under :- The disputed premises bearing No. 1303-B owned by the petitioner is situated at Kopergaon, Dist. Ahmednagar is rented out to the defendant. The petitioner filed case No. CAN/1089/(40)/89, before the competent authority alleging that the disputed premises was rented out to the respondent for 30 years. It was alleged that the petitioner was a member of Indian Air Force and was ex-service man. He joined the Indian Air Force on 15/11/1965. It was stated that upon partition, the portion in possession of the respondent came to the share of the petitioner. The petitioner wanted the premises for his own occupation, and therefore, filed the application for eviction and possession, some time in the month of November, 1989. It was stated in the application that the necessary certificate, as required by Section 13 A1 (a) (i) of the said Act was being obtained and the application for that purpose was attached along with the main application filed for eviction and possession. 3. The respondent denied the claim of the petitioner, by filing written statement dated 16/12/1989. The point was raised in the reply that the application is not accompanied by certificate and hence the 3 same is liable to be dismissed on that count. Apart from this, the claim for bonafide occupation of the petitioner, is also disputed. 4. It seems that during the pendency of the application before the competent authority, a certificate dated 23/01/1990 as contemplated by Section 13 A1 (a)(i) of the said Act was produced. 5. The competent authority passed an order dated 31/12/1999, dismissing the application holding that the certificate produced on record Exh. 24 was not by the authorised officer, as prescribed under Section 13 A1 (a) (i) of the said Act. It was held that the petitioner could not prove that the certificate was issued by the Air Force Station Commander, as contemplated in the explanation of Section 1(iii) to Sec. 13A1 which was applicable in the instant case. On merits also, the claim was dismissed. Hence the present Writ Petition has been preferred. 6. With the assistance of learned counsels appearing for the parties, I have gone through the record and proceedings. It is not in dispute that the certificate as contemplated by Section 13 A1(a) (i) of the said Act, was not produced along with the application filed in the month of November, 1989 by the petitioner. However, it was stated that the certificate is being obtained and the application for obtaining such certificate already made, was attached. The respondent had raised a 4 point that the application for eviction and possession not accompanied by such certificate, is not maintainable. It was also not in dispute that the certificate was issued on 23/1/1990 and the same was produced in the proceedings before the competent authority. There was no dispute raised, as to the authenticity of the said certificate (Exh. 24) dated 23/1/1990 produced on record. The dispute raised, was in respect of non submission of certificate along with application for eviction. Obviously when the written statement was filed on 06/12/1989 the certificate was not issued. It was issued on 23/1/1990, and hence there was no question of raising such dispute regarding authenticity of such certificate. However, the competent authority has gone into the issue of authenticity of certificate and has recorded finding that the certificate was not issued by the authorised officer, as defined under explanation to Sub Section 2 of Section 13 A1 of the said Act. Such finding without pleading of parties, recorded cannot be sustained. The competent authority has also proceeded to decide the question on merits of the matter regarding the need put-forth by the petitioner, the claim is rejected. However, once the application is found as not maintainable or that certificate is found to have not been issued by the competent authority / authroised officer, the question of going into the merits of the matter does not arise. Hence, findings on merits are also set aside. 7. In the result, the instant Writ Petition succeeds, the order dated 31/12/1993 passed by the competent authority in case No. 5 CAN/1089/(40)/89, is here by quashed and set aside. The matter is remitted back to the competent authority for deciding the case afresh. Since the certificate was produced on record after filing of the written statement, it shall be open for the petitioner to amend the application and also to the respondent to consequentially amend the written statement on record. The competent authority shall permit the parties to lead their evidence in support of their case. The matter be decided within six months from the date of the receipt of writ from this Court. Rule is made absolute in above terms. However, there shall be no order as to cost. [ R.K. DESHPANDE, J. ] SDM*567.94(J)