:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 1553 OF 2008 PETITION NO. 1553 OF 2008 PETITION NO. 1553 OF 2008 Mr. Iqbal Viraney and another ..Petitioners V/s Col. John Donald Stanley ..Respondent Mr. Milind Sathe, Sr.Counsel with Mr. Chetan Akerkar for the petitioners Mr. M.A. Choudhari for the respondent CORAM CORAM CORAM : A.A. SAYED, J. : A.A. SAYED, J. : A.A. SAYED, J. DATE DATE DATE : 2ND MAY, 2008 : 2ND MAY, 2008 : 2ND MAY, 2008 P.C. 1. Rule. By consent rule made returnable forthwith and heard finally. 2. This petition is filed impugning the order dated 26-4-2007 passed by the Additional Commissioner, Konkan Division, under the Maharashtra Rent Control, Act 1999, whereby the revision Application of the respondent came to be partly allowed and the order of the Competent Authority, Konkan Division dated 14-12-2005 was set aside and the matter was remanded to the Competent Authority for fresh decision in the matter. :2: 3. The brief facts of the case are as under: The respondent, is a retired member of the armed forces of Union of India. He is the owner of the suit premises which is a flat in a building known as "Dilkhush", 28, St. Paul Road,Bandra West Mumbai 400 050. He retired from the armed forces in the year 1970 and the suit premises were let out by him to the petitioner under an agreement in the year 1984. In December 2005, the respondent filed an eviction Application under section 23(1)(A) of the Maharashtra Rent Control Act, 1999 (’the said Act’ for short) before the Competent Authority for recovery of possession of the suit premises on the ground of bonafide requirement against the petitioner who is his monthly tenant. The Competent Authority after hearing the parties held that the Application of the respondent was not maintainable under section 23 of the said Act. Aggrieved by the aforesaid order, the respondent filed a Revision Application before the Additional Commissioner, Konkan Division, who by his order dated 26-04-7 set aside the order of the Competent Authority and remanded the matter to the Competent Authority - hence the present petition questioning the order of the Additional Commissioner, :3: Konkan Division. 4. The Ld. Sr. Counsel for the petitioner submitted that the Application of the respondent was not maintainable and the Appellate Authority had erred in setting aside the order of the Competent Authority and remanding the matter to him to decide it afresh. He submitted that the summary procedure as provided under section 23(1)(A) was not available to the respondent inasmuch as the suit premises was let out to the petitioner in 1984, when the respondent had retired in the year 1970 and ceased to be a member of the armed forces. The Ld. Sr. Counsel next contended that section 23(1)(B) provides a limitation of 5 years to the landlord for making the Application. He therefore submitted that in the present case, the respondent having retired as far back as in 1970, the Application being filed in 2004, was time-barred and therefore the Application was not maintainable on this count also. The Ld. Sr. Counsel relied upon the following cases: (1) Bhagwat Bhagwat Bhagwat Dutt Dutt Dutt Rishi V. Ramkumar, Rishi V. Ramkumar, Rishi V. Ramkumar, reported in (1990) SCC 324; (2) Dr. D.N. Malhotra V. Kartar Singh, Dr. D.N. Malhotra V. Kartar Singh, Dr. D.N. Malhotra V. Kartar Singh, reported in (1981) 1 SCC 656; (3) Mrs. Winifred Ross and Mrs. Winifred Ross and Mrs. Winifred Ross and :4: another another another V. Ivy Fonseca and others V. Ivy Fonseca and others V. Ivy Fonseca and others, reported in (1984) 1 SCC 288 (4) Sushilabai Vasudeo Jaeel and Sushilabai Vasudeo Jaeel and Sushilabai Vasudeo Jaeel and others others others V. M.S. Dhillon,Chief Record V. M.S. Dhillon,Chief Record V. M.S. Dhillon,Chief Record Officer, reported in 1979 MH.L.J. 125. 5. The learned Counsel for the respondent on the other hand supported the impugned order and relied upon the case of Shriprasad Vasudeo Vatve and another Shriprasad Vasudeo Vatve and another Shriprasad Vasudeo Vatve and another V. V. V. Narhar Bhargav Karmarkar Narhar Bhargav Karmarkar Narhar Bhargav Karmarkar, reported in 1992 Mh.L.J. 305 and the case of Shivram Anand Shiroo the case of Shivram Anand Shiroo the case of Shivram Anand Shiroor V. Mrs. Radhabai Shantaram Radhabai Shantaram Radhabai Shantaram, reported in Indian Law Reports 1985 Karnataka 41 to submit that the Application was maintainable under section 23(1)(A) of the said Act. 6. I have heard the Ld. Counsel for the parties and perused the material on record including the impugned order. 7. Two points arise for my determination - firstly, whether the Application of the respondent under section 23(1)(A) of the said Act was barred by limitation, the Application for eviction having been filed more than 5 years after the date retirement of :5: the respondent; Secondly, whether the Application was maintainable in view of the fact that at the relevant time when the suit premises were let out, the respondent had already retired and had ceased to be a member of the armed forces. 8. To arrive at any decision, it would be necessary to first examine the relevant provisions of the Maharashtra Rent Control Act, 1999. Chapter V of the said Act contains special provisions for (1) members of the armed forces of the Union, (2) certain scientists, and (3) certain employees of Government and the successor-in- interest of the said persons, to recover possession of the premises required for their occupation. Section 23(1) of the said Chapter V reads as under:- "23. "23. "23. Members of armed forces of the Union, Members of armed forces of the Union, Members of armed forces of the Union, Scientists Scientists Scientists or their successor-in-interest entitled to or their successor-in-interest entitled to or their successor-in-interest entitled to recover recover recover possession of premises required for their possession of premises required for their possession of premises required for their occupation. occupation. occupation. "(1) Notwithstanding anything to the contrary contained in this Act or any contract._ (A) a landlord, who,- (i) is a member of armed forces of the Union, or was such a member and has retired as such (which term shall include premature retirement), or :6: (ii) holds a scientific post in the Department of Atomic Energy of the Central Government or in any of its aided institution (hereinafter in this section referred to as "a scientist"), or was such a scientist and has retired as such (which term shall include premature retirement), and one year has not elapsed since his retirement on the date of making of the application, or (iii) is an employee of the Government of India, Government of any State or Union Territory, Public Sector Undertaking of the Government of India or any State Government (hereinafter referred to as "a Government servant") and has retired as such (which term shall include premature retirement) and one year has not elapsed since his retirement on the date of the application. shall be entitled to recover from his tenant the possession of any premises owned by him on the ground that such premises are bonafide required by him for occupation by himself or by any member of his family, by making an application for the purpose of recovery of possession of the premises, to the Competent Authority; and the Competent Authority shall make an order of eviction on that ground if,- (a) in the case of landlord who is a member of the armed forces of the Union, he produces a certificate signed by the authorised officer to the effect that;- (i) he is a member of the armed forces of the Union, or that he was such a member and has retired as such and (ii) he does not possess any other premises suitable for residence in the local area where the premises are situated; or (b) in the case of landlord who is a scientist ....... :7: (i)..... (ii) ...... (c) in the case of a Government servant.... (i)..... (ii)..... (B) a successor-in-interest who becomes the landlord of the premises owned by any landlord referred to in clause (A), as a result of death of such a landlord while in service or where he is a member, of the armed forces of the Union, within five years of his retirement, or where he is a scientist, or a Government servant, within one year of his retirement, shall be entitled to recover possession of such premises on the ground that such premises are bonafide required for occupation by the successor-in-interest himself or by any member of the family of the deceased landlord, by making an application for the purpose of recovery of possession of the premises, to the Competent Authority; and the Competent Authority shall make an order of eviction on that ground if,- (a) in the case of the successor-in-interest of a member of the armed forces of the Union, he produces a certificate signed by the authorised officer to the effect that,- (i) a successor-in-interest is a widow or any other member of the family of the deceased member of the armed forces of the Union, who died while in service on the date specified in the certificate (or a member of the armed forces of the Union who has retired and who died within five years of his retirement on the date specified in the certificate); and (ii) such a successor-in-interest does not possess any other premises suitable for residence in the local area where such premises are situated; or (b)....(i).....(ii).... :8: (c).....(i)....(ii).... 9. In so far as the issue regarding limitation of 5 years as provided in section 23(1)(B) is concerned, a bare reading of the said section 23(1)(B) clearly discloses that the said period relates to the ’successor-in-interest’ of the landlord of the suit premises and the period of 5 years mentioned therein is in relation to the death of the landlord. The said period of 5 years certainly does not apply to the landlord himself and it cannot be said that a landlord, who is a member of the armed force of the Union, as is, in the instant case, is required to file such Application for bonafide requirement before the Competent Authority within a period of 5 years from the date of his retirement as is sought to be argued by the Ld. Sr. Counsel for the petitioner. 10. It is to be noted that section 23(1)(A) does prescribe a limitation period for landlords. However the limitation applies only to the 2 categories of landlords out of the 3 categories set out in section 23(1)(A). In other words while limitation of 1 year each is provided in the case of a ’scientist’ and in :9: the case of a ’Government servant’ within the meaning of the section, there is no limitation provided in the case of a ’member of the armed forces of the Union’ and the legislature in its wisdom has avoided to prescribe any limitation period insofar as members of the armed forces of the Union is concerned. 11. This issue had also come up for consideration before a single Judge of this Court in the case of Ramchandra Ramchandra Ramchandra Keruji Deokar vs. Raghunath Sankar Keruji Deokar vs. Raghunath Sankar Keruji Deokar vs. Raghunath Sankar Bichakar Bichakar Bichakar reported in 1993 Mh. L.J. 1213 and the Court in that case in para 8 of the ruling observed as follows: "8.It is worthy to note that no provision in section 13-A1 of the Bombay Rent Act provide any limitation for submitting an application under this section to the Competent Authority even if it is to be submitted by successor-in-interest. Five years limitation has not been prescribed for filing an application. Mention of five years is in a reference to the restriction on the extension of the right to apply so far as successor-in-interest of the landlord are person is retired from the Army, he is faced with the difficulty since he has to re-establish himself at the place of his origin from migrated place of service. The difficulties which he is required to face are also faced by his widow or his other member concerned. There is a rational behind this. If a of the family in case he dies during the service or immediately after the retirement. :10: If he gets reasonable time after the retirement, then the same difficulties may not be faced by members of the family who could have been well rehabilitated by a retired army person. Therefore, the legislature thought it fit that the right to apply under this provision should be given only to the successor-in-interest - person retired from Army if the death has occurred within five years of the date of the retirement. A reasonable class is carved out from the successor-in-interest of retired person of Army, and a right is given by the legislature to them. Since the legislature has not fixed any limitation, as was contended by Shri Gatne before me, there is no question of extending the same rule of limitation to the persons retiring from Army and if the legislature in its wisdom has thought it fit not to prescribe any limitation, it would neither be proper nor competent for this Court to add anything under a statute." 12. It may be mentioned here, that the above quoted section 13A1 of the old Bombay Rent Act 1947, is in pari materia with section 23 of the Maharashtra Rent Control Act 1999. 13. In view of the aforesaid discussion, the contention of the Ld. Counsel for the petitioner as regards limitation, stands negated. 14. Insofar as the second issue that the Application of the respondent under section 23 of the said Act was not maintainable, inasmuch as the respondent had :11: inducted the petitioner as a tenant of the suit premises after he had retired as a member of the armed forces of the Union is concerned, I find that this issue, as is rightly pointed out by the Ld. Sr. Counsel for the petitioner, has been squarely covered by the Judgment in the case of Winifred Ross v. Ivy Winifred Ross v. Ivy Winifred Ross v. Ivy Fonseca, Fonseca, Fonseca, (1984) 1 SCC 288. In that case the Hon’ble Supreme Court had elaborately discussed section 13 1A and considered the statement of objects and reasons of the said section and had observed in para 4 and 5 of the said decision as follows: "4. The first question which arises for consideration is whether the plaintiff who had acquired title to the premises in question and became its landlord after he had retired from the service of the Army could maintain the petition under Section 13-A1. T e object of introducing the said section into the Act is contained in the Statement of Objects and Reasons annexed to the amending Bill which later on was passed by the State Legislature. It reads: 8. "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 ha e 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 ex-service personnel find it extremely difficult to regain possession of their premises which they badly :12: 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. 2. 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. 3. 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 of their families and to provide that the court shall be bound to pass a decree for eviction on 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. such ground if such member or widow, as landlord, The Bill is intended to achieve these objects. 5.The object of Section 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. Even the widows of such landlords may :13: under clause ( ) of Section 13-A1 can recover possession of such buildings if they satisfied the conditions mentioned therein. An analysis of clause (a) of Section 13-A1 shows that the person who wishes to claim the benefit of that section 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. 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-A1 it is difficult to hold that Section 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. Acceptance of this argument will expose the very Section 13-A1 of the Act to a successful challenge on the ground of violation of Article 14 of the Constitution for if 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 i 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 no 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-A1 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 :14: suitable residence in the local area where he or members of his family can reside. Those 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 unscrupulous landlord 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-A1 of the Act. In fact the facts involved in the case of Sushilabai Vasudeo Jaeel v.M.S. Dhillo were similar to the above illustration. In that case the plaintiff was a person who had been discharged from the army in the year 1946. Thereafter he was working in the Railways. He had let out a premises belonging to him in 1957. The High Court of Bomb y held that he could not avail himself of the benefit of Section 13-A1 of the Act as he had not let out the building while he was in the army. The High Court found that Section 13-A1 of the Act did not govern the case of a person who had retired long back from the armed forces and was gainfully employed elsewhere and while so employed had let out his premises with open eyes. We fully endorse this view." 15. While dealing with the above case, the Hon’ble Supreme Court has thus referred to the case decided by a Division Bench of this Court in Sushilabai Sushilabai Sushilabai Vasudeo Vasudeo Vasudeo Jaeel Jaeel Jaeel (Supra), which had taken the same view, and which the Hon’ble Supreme Court endorsed. The above view was also reiterated in a 3-Judge Bench of :15: the Hon’ble Supreme Court in the case of Bhagwat Dutt Rishi (supra), as also a two-Judge Bench in the case of Dr. D.N. Malhotra (supra) Dr. D.N. Malhotra (supra) Dr. D.N. Malhotra (supra), which cases have also been relied upon by the Ld. Sr. Counsel for the petitioner. 16. Applying the principles laid down in the above decisions, it is clear that in the instant case the Application of the respondent under section 23 of the Maharashtra Rent Control Act, 1999, would not be maintainable inasmuch as admittedly the respondent in the instant case had retired in the year 1970, while the suit premises were let out to the petitioner in the year 1984. In other words the suit premises having been let out by the respondent to the petitioner after his retirement from the armed forces of the Union, the Application was not maintainable. 17. Insofar as that decisions cited by the Ld. Counsel for the respondent is concerned, on perusal of the same, it clearly discloses that in those cases the Courts were dealing with cases where the issue was as regards the maintainability of the Application when the Landlord had acquired or inherited the suit :16: premises with a sitting tenant and whether in such cases the Application was maintainable and the Courts held that the Application was maintainable in those cases. In the case in hand the question is not as to when the landlord acquired the suit premises, but what point of time the tenancy was created - whether before retirement or after retirement of the landlord. Thus the issue in those cases were entirely different and the said cases cannot be of any assistance to the case of the respondent . 18. Coming to the impugned order though the Competent Authority had rightly held that the Application under section 23 of the respondent was not maintainable inasmuch as the petitioner was not inducted in the suit premises before the retirement of the respondent, the Addl. Commissioner, who is the Appellate Authority had by the impugned order remanded the matter to the Competent