IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No.6763 of 2008 (O&M) Date of Decision : August 28, 2009 Balwinder Singh Minhas .....Petitioner versus Rakesh Budhiraja .....Respondent CORAM : HON'BLE MR.JUSTICE SURYA KANT. Present : Mr.M.L.Sarin, Senior Advocate, with Ms.Hemani Sarin, Advocate, for the petitioner. Mr.R.K.Handa, Advocate, for the respondent -.- 1. Whether Reporters of Local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? --- ORDER Surya Kant, J. This revision petition is directed by the landlord whose eviction petition under Section 13-A of the East Punjab Urban Rent Restriction Act, 1949, as applicable to the Union Territory, Chandigarh (hereinafter referred to as `the Rent Act') filed against the respondent- tenant has been dismissed by the Rent Controller, Chandigarh, vide order dated 22.9.2008. [2] Briefly stated, the facts of the case are that the petitioner is the owner of residential house No.1148, Sector 36-C, Chandigarh since 2.3.1994. C.R. No.6763 of 2008(O&M) 2 The petitioner was a member of the Indian Administrative Service (IAS) and retired on superannuation on 31.10.2004 in the rank of Secretary to the Union of India. [3] The Government of India, Ministry of Home Affairs, in exercise of its powers under Section 2 (5) of the Prevention of Terrorism (Repeal) Act, 2004 (hereinafter referred to as `POTA 2004') issued a notification dated 26.5.2005, constituting a Review Committee for completing the review of pending cases under the Act within one year. The Review Committee was headed by Hon'ble Ms.Justice Usha Mehra, a former Judge of Delhi High Court, and the petitioner alongwith two other former senior functionaries of the Government of India, were appointed as its Members. [4] The notification dated 26.5.2005 appointing the petitioner as a Member of the POTA Review Committee (the relevant extracts) reads as follows:- “The Gazette of India: Extra-ordinary Ministry of Home Affairs Notification New Delhi, the 26th May, 2005. S.O.723 (E) – In exercise of the powers conferred by Sub-section (5) of Section 2 of the Prevention of Terrorism (Repeal) Act, 2004 (26 of 2004) and in supersession of the notification of the Government of India in the Ministry of Home Affairs number S.O.541 (E) dated the 11th April, 2005, except as respects things done or omitted to be done before such supersession, the C.R. No.6763 of 2008(O&M) 3 Central Government hereby constitute one more Review Committee for the purposes of the said Act, as follows: (1) Ms.Justice Usha Mehra, Former Judge of the High Court of Delhi. - Chairperson (2) Shri B.S.Minhas, Former Secretary to the Government of India. - Member (3) Shri R.C.Jha, Former Director-General Central Industrial Security Force. -Member (4) Shri A.A.Ali, Former Special Secretary to the Government of India. - Member. (F.No.1-17014/71/2004-IS-VII) L.C.Goyal, Jt.Secy.” [5] It would be apposite at this stage to refer to Section 2 of the POTA, 2004, which reads as follows: “2. Repeal of Act 15 of 2002 and saving:- (1) The Prevention of Terrorism Act, 2002 (hereinafter referred to as the principal Act) is hereby repealed. (2) The repeal of the principal Act shall not effect- (a) the previous operation of, or anything duly done or suffered under the principal Act, or (b) any right, privilege or obligation or liability acquired, accrued or incurred under the principal Act, or (c) any penalty, forfeiture or punishment incurred ini respect of any offence under the principal Act, or (d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid. and, any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such C.R. No.6763 of 2008(O&M) 4 penalty, forfeiture or punishment may be imposed as if the principal Act had not been repealed; Provided that notwithstanding anything contained in this sub-section or in any other law for the time being in force, no Court shall take cognizance of an offence under the principal Act after the expiry of the period of one year from the commencement of this Act. (3) Notwithstanding the repeal of section 60 of the principal Act, the Review Committee constituted by the Central government under sub-section (1) of that Section, whether or not an application under sub-section (4) of that section has been made, shall review all cases registered under the principal Act as to whether there is a prima facie case for proceeding against the accused thereunder and such review shall be completed within a period of one year from the commencement of this Act and where the Review Committee is of the opinion that there is no prima facie case for proceeding against the accused, then, - (a) in cases in which cognizance has been taken by the Court, the cases shall be deemed to have been withdrawn; and (b) in cases in which investigation are pending, the investigations shall be closed forthwith, with effect from the date of issuance of the direction by such Review Committee in this regard. (4) The Review Committee constituted by the Central Government under sub-section (1) of Section 60 of the principal Act shall, while reviewing cases, have powers of a civil Court under the Code of Civil Procedure, 1908 (5 of 1908) in respect of the following matters, namely:- (a) discovery and production of any document; C.R. No.6763 of 2008(O&M) 5 (b) requisitioning any public record or copy thereof from any Court or office. (5) The Central Government may constitute more Review Committees, as it may consider necessary, for completing the review within the period specified in sub-section (3).” (emphasis supplied). [6] As may be seen, the Review Committee constituted under Section 60 (1) of the Principal Act (since repealed) or to be constituted under Section 2 (5) of the Repealing Act, reproduced above, was assigned the task of reviewing all the cases under the Act “within a period of one year from the commencement” of the POTA, 2004. [7] After his appointment as a Member of the POTA Review Committee, the petitioner rented out his afore-stated residential house (in short `the demised premises') to the respondent-tenant on 30.5.2005. [8] The tenure of the Review Committee to which the petitioner was inducted as a Member came to an end on 21.9.2005 and on expiry, he asked the respondent-tenant to vacate the demised premises as the petitioner needed it for his own use and occupation. However, the respondent-tenant refused to vacate the same. [9] The petitioner thereafter filed the instant eviction petition on 6.9.2006 under Section 13-A of the Rent Act, which enables a `Specified Landlord' to seek eviction of his tenant from a `residential' or `scheduled building' by way of summary procedure subject to fulfillment of the prescribed conditions. [10] The respondent-tenant contested the eviction petition, inter- C.R. No.6763 of 2008(O&M) 6 alia, on the grounds that the petitioner is not his `landlord' as the demised premises was rented out to him by the petitioner's daughter; the eviction petition was filed after one year of the petitioner's retirement on 31.10.2004 and is not maintainable under Section 13-A of the Rent Act; the premises having been let out on 1.6.2005 well after his retirement, the special provisions relied upon by the petitioner are not attracted. [11] The crucial question that arose for determination before the Rent Controller was as to whether or not the petitioner falls under the category of `Specified Landlord' and eligible to recover the immediate possession of the demised premises by way of summary procedure in terms of Section 13-A read with Section 18-A of the Rent Act? [12] The Rent Controller dismissed the petitioner's eviction petition after holding that he has neither been able to prove his `re- employment' as a member of the POTA Review Committee from 26.5.2005 till 21.9.2005 as there was a break period between his retirement from the IAS and appointment as a member of POTA Review Committee, nor has he shown payment of any salary or honorarium during the aforesaid period. [13] Aggrieved, the petitioner has approached this Court. Learned counsel for the parties have been heard and the records of the Rent Controller have been summoned and perused. [14] There is indeed no quarrel that a tenant cannot be summarily evicted under Section 13-A of the Rent Act if he was inducted by the landlord after the later's retirement from service, as ruled by the Hon'ble C.R. No.6763 of 2008(O&M) 7 Supreme Court in Dr.D.M.Malhotra versus Kartar Singh, 1988 (1) P.L.R. 394, as well as by this Court in a catena of decisions relied upon by counsel for the respondent. Since the petitioner let out the demised premises after his retirement from I.A.S. on 31.10.2004, he cannot claim himself a `Specified Landlord' solely being a retiree from the I.A.S. [15] The real controversy, however, appears to be slightly different. The issue involved is, can the petitioner, while working as a Member of the POTA Review Committee, be said to have held an appointment in a public service or post in connection with the affairs of the Union? [16] Section 2 (hh) of the Rent Act defines “Specified landlord” to mean “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”. Similarly, Section 13-A of the Rent Act provides as follows:- “13-A Right to recover immediate possession of residential or scheduled building to accrue to certain persons:- 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 C.R. No.6763 of 2008(O&M) 8 area in which he intends to reside to recover possession 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....” (emphasis supplied). [17] Section 18-A of the Rent Act contemplates summary procedure for disposal of the Eviction Application filed under Sections 13-A or 13-B of the Rent Act, as the case may be. [18] The above referred provisions have been inserted in the Rent Act by Act No.2 of 1985, the statement of Objects and Reasons whereof have taken notice of the representations made by the Defence Personnel and other Central/State Government employees who are facing considerable difficulties in getting their residential houses vacated from the tenants after their retirement. [19] The expression “Specified Landlord” has been defined to mean a person “who is holding or has held appointment in a public service or post in connection with the affairs of the Union or of a State, and is Pari-Materia to the similar expression contained in Article 309 of the Constitution. The term “public service” is of wide amplitude and any governmental activity, beneficial to the public in general with distinct C.R. No.6763 of 2008(O&M) 9 profit motive, falls within its ambit. A `post' under the State is an office or a position to which duties in connection with the affairs of the State are attached, an office or a position to which a person is appointed and which may exist independent of the holder of the post. (ref.: State of Assam versus Kanakchandra Dutta, AIR 1967 SC 884. In other words, the `post' denotes an `office'. The expression 'post' and `public service' to some extent are synonymous and wherever the relationship of master and servant exists between the Government and the appointee to an office or a post, such an incumbent holds a public office or post in connection with the affairs of the Union or the State. A person employed by the Union or a State for the discharge of public duties, other then connected with the defence, is known as an employee in public service and, whether remuneration is paid or not to such an incumbent, is wholly immaterial. [20] While it is near to impossible to define with precision, the litmus test to determine whether or not a person holds or has held an appointment in a public service/post in connection with the affairs of the Union or of a State, the following factors, amongst others, would be relevant for such determination:- (i) the office or post occupied by the person concerned has been created at the expenses drawn from the State exchequer; (ii) the duties attached to such post/office pre-dominantly relate to the administration for public good; (iii) the nature of duties attached to the post are meant to fulfill the State's obligations or aspirations under the Constitution; C.R. No.6763 of 2008(O&M) 10 (iv) the nature of appointment whether regular, temporary or on tenure, is irrelevant. (v) The payment of salary, remuneration or any fee etc. to the appointee is also immaterial; (vi) Whether the appointee holds the post/office under the pleasure of the President or the Governor or is entitled to the protection of Article 311 of the Constitution, is also inconsequential. [21] Applying these broad parameters, it appears to me that the appointment as a Member of the POTA Review Committee constituted under Section 60 of the Principal Act (since repealed) or under Section 2 (5) of the Repealing Act (POTA-2004) amounts to an appointment to a 'public office' in connection with the `affairs of the Union'. The Statutory Committee created under the Act is obligated to perform public duties and the entire expenses incurred on the constitution or functioning of such a Committee are borne by the Union from the consolidated fund. The petitioner while he served as a Member of the POTA Review Committee from 26.5.2005 to 21.9.2005, therefore, held appointment in a public service in connection with the affairs of the Union. [22] At this stage, it may be useful to refer to Section 60 of the Prevention of Terrorism Act, 2002 (since repealed), which used to provide constitution of the Review Committees and appointment of Chairperson/ Member of such Committees and the same (relevant part only) reads as follows: “60. Review Committees:- (1) The Central Government C.R. No.6763 of 2008(O&M) 11 and each State Government shall, whenever necessary, constitute one or more Review Committees for the purposes of this Act. (2) Every such Committee shall consist of a Chairperson and such other members not exceeding three and possessing such qualifications as may be prescribed. (3) A Chairperson of the Committee shall be a person who is, or has been, a Judge of a High Court, who shall be appointed by the Central Government, or as the case may be, the State Government, so however, that the concurrence of the Chief Justice of the High Court shall be obtained in the case of a sitting Judge; Provided that in the case of a Union Territory, the appointment of a person who is a Judge of the High Court of a State shall be made as a Chairperson with the concurrence of the Chief Justice of the concerned High Court. (4) Without prejudice to the other provisions of this Act, any Review Committee constituted under sub-section (1) shall, on an application by any aggrieved person, review whether there is a prima facie case for proceeding against the accused under this Act and issue direction accordingly. xx xx xx xx” [23] Reference may also be made to the Review Committee (Qualifications for Appointment and Other Conditions of Service of the Chairperson and Members) Rules, 2002 framed by the Central Government in exercise of its powers under Section 62 of the POTA-2002 (since repealed). Rule 4 of these Rules-2002 prescribes qualification for appointment of Chairperson and Members of the Review Committees, and reads as follows:- “4. Qualifications for appointment:- (1) The Central Government or, as the case may be, the State Government may, by notification in the Official Gazette, appoint a person as the Chairperson of the Review Committee possessing the qualifications as specified in C.R. No.6763 of 2008(O&M) 12 sub-rule (2) of this rule. (2) A Chairperson of the Committee shall be a person who is, or has been, a Judge of High Court, who shall be appointed by the Central Government, or as the case may be, the State Government, so however, that the concurrence of the Chief Justice of the High Court shall be obtained in the case of a sitting Judge. Provided that in the case of a Union Territory, the appointment of a person who is a Judge of the High Court of a State shall be made as Chairperson with the concurrence of the Chief Justice of the concerned High Court. (3) The Central Government or, as the case may be, the State Government, may by notification in the Official Gazette, appoint a person as a member of the Review Committee who is, or has been an officer not below the rank of a Secretary to the concerned Government or of an equivalent rank.” (emphasis supplied). [24] Section 60 of the Act read with Rule 4 (3) of the Rules-2002 leave no scope to doubt that an officer who is or has been not below the rank of Secretary to the concerned Government or of an equivalent rank, could only be appointed as Member of the POTA Review Committee. The petitioner was also appointed as a Member of the POTA Review Committee as he possessed the requisite eligibility in terms of Rule 4 (3) of the Rules (ibid). [25] Rule 5 of the Rules-2002 has also a direct bearing on the issue involved and provides as follows:- “5. Salary and allowances of Chairperson and other members: (1) The Chairperson of the Review Committee shall be entitled to a monthly salary and allowances at the same rate as is admissible to a Judge of a High Court. (2) The Chairperson of the Review Committee shall be entitled to a rent free accommodation. (3) A member of the Review Committee shall C.R. No.6763 of 2008(O&M) 13 continue to draw such pay and allowances and other facilities as is admissible to the Secretary to the concerned Government. (4) Where a person, who has been a Judge of a High Court is appointed as Chairperson or, as the case may be, a person retired from service under the Government is appointed as a member after such retirement, the salary admissible shall be reduced by the amount of pension equivalent of any other form of retirement benefits.” (emphasis supplied). [26] In view of Rule 5 (3) of the Rules-2002, its stands crystalized that on his appointment as a Member of POTA Review Committee, the petitioner continued to draw the same pay and allowances and other facilities as were admissible to him while he was serving as Secretary to the Central Government. That obviously includes the government accommodation or House Rent Allowance in lieu thereof. [27] Since it was essential to be a serving or retired officer in the rank of Secretary to the Government or equivalent for being appointed as a Member of POTA Review Committee, the appointment of such a retiree, having regard to his rank or the service record possessed by him, shall amount to his `re-employment', may be for a limited period. The appointment of the petitioner as a Member POTA Review Committee, which was essentially on account of his service rendered in the IAS, was, therefore, a case of `re-employment' for all intents and purposes. [28] The expression `retirement' for the purposes of Section 13-A of the Rent Act, necessarily means `cessation from public service or a post' meant for serving the affairs of the Union or of a State. `Retirement' is one of the well recognized modes to terminate the C.R. No.6763 of 2008(O&M) 14 relationship of Master and Servant. The question may, however, still arise as to whether in a case of `re-employment', the `retirement' would relate back to the original date of superannuation or to the expiry of the period of re-employment? In my considered view, once a Government employee has been assigned some other public duty to perform, solely on a consideration of his previous and original service, it shall, in the service jurisprudence, amount to `extension in service' and would essentially mean that the date of `retirement' of such an employee, for the purposes of retiral benefits, also stands extended to the date of expiry of the tenure of his re- employment. The decision by the Hon'ble Supreme Court in (i) State of Karnataka versus K.Vasudeva and others (1994) suppl.(3) SCC 543, and (ii) State of Punjab and others versus Dalbir Kaur Kalyan, (2006) 6 SCC 516, support the afore-stated view point. [29] Section 13-A has been incorporated in the Rent Act with a laudable object to provide the retirees shelter under their own roofs in the late evenings of their lives. Though it may be an exception to the Rent Act, but the said object also translates one of the State`s welfare schemes into reality. The principle of strict interpretation, therefore, may not be attracted to such an equally balancing provision. [30] The petitioner admittedly let out the demised premises during the period of his 're-employment' when he was holding the office of the Member, POTA Review Committee and was entitled to government accommodation or House Rent Allowance, as the case may be. The petitioner, thus, fulfilled the ingredients of a `Specified Landlord' as C.R. No.6763 of 2008(O&M) 15 defined under Section 2 (hh) of the Rent Act. He undisputably filed the eviction petition on 6.9.2006 i.e., within one year of his demitting the office of Member POTA Review committee on 21.9.2005 and as such was entitled to seek eviction of his tenant under Section 13-A read with Section 18-A of the Rent Act, through the summary procedure. [31] This takes us to the next objection raised on behalf of respondent-tenant that the petitioner has withheld his `appointment letter' as a Member of the POTA Review committee. True it is that no such appointment letter is placed on record but the said appointment not even been disputed by the respondent in his preliminary objection No.2 or in para No.1 of the reply on merits of his written statement. On the other hand, the petitioner has placed on record a certificate (Ex.P-1) duly signed by the Under Secretary to the Government of India, certifying that he remained Member, POTA Review Committee from 26.5.2005 to 21.9.2005. The Under Secretary, Mr.M.S.Kalania, produced by the respondent-tenant as a witness (RW-2), has reiterated on oath that the petitioner did work as a Member of the POTA Review Committee for the aforesaid period. He has further deposed that the Appointing Authority of the petitioner was the Home Secretary and the Home Minister, Union of India. [32] The fact of the matter is that the petitioner's appointment as Member, POTA Review Committee, is duly notified in the Official Gazette of the Union of India, dated 26.5.2005 and its uncontroverted copy has now been placed on record as Annexure `A' with this revision petition which is presumed to be genuine in view of Section 81 of the Indian C.R. No.6763 of 2008(O&M) 16 Evidence Act, 1872. [33] Similarly, the second condition laid down under Section 13-A of the Rent Act regarding the certificate to be