1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO.4097 OF 2009 (Radhamohan Badrilal Bajaj vs. Union of India and others) __________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : D.D. SINHA AND F.M. REIS, JJ. DATED : MARCH 23, 2010 Heard Shri Chandurkar, learned Counsel for the petitioner, Shri Voditel, learned Counsel for the respondent no.5, and Smt. Bodade, learned Assistant Government Pleader for the respondent no.6. The petition is directed against the certificate dated 20.11.2002 as well as corrected certificate dated 17.8.2005 issued by the respondent no.3 under Section 23 of the Maharashtra Rent Control Act, 1999. 2 The grievance of the petitioner is two- fold, namely, the competent Authority while issuing certificate did not consider the requirement of Section 23 as well as eligibility of the respondent no.3 vis-a-vis the said provision. It is contended that power or authority to issue certificate has to be exercised after considering the relevant material, evidence on record and in accordance with the procedure stipulated in Section 23 of the Act. It is submitted that the power or authority conferred upon the competent Officer is coupled with the duty to ensure that all the aspects are looked into and considered and it is only thereafter the appropriate certificate is issued, if necessary. It is contended by the learned Counsel for the petitioner that the impugned certificates issued by the competent Authority do not demonstrate that the competent Authority has observed any of these aspects and, therefore, they are liable to be quashed and set aside. In order to substantiate the contentions, reliance is placed on the decision of this Court in Sushilabai Vasudeo Jaeel and others vs. M.S. Dhillon, Chief Record Officer, Record Office, Pune and others 3 (1979 Mh.L.J. 125). Shri Voditel, learned Counsel for the respondent no.5, on the other hand, has supported the impugned certificates issued by the competent Authority and submitted that power exercised by the competent Authority is consistent with the law laid down by the Apex Court in David Joseph Guido vs. A.C. Fernandes {(2000) 9 SCC 179)}. It is contended that respondent no.5, who is a member of Armed Forces, at the time of submission of the application, did not possess any other premises suitable for residence at Akola where the premises in question are situated. It is submitted that the petitioner never disputed either title of the respondent no.5 or landlord-tenant relationship. It is, therefore, contended that the competent Authority taking into consideration these vital aspects as well as scheme of Section 23 of the Act issued the impugned certificates, which are sustainable in law. We have considered the rival contentions canvassed by the respective Counsel for the parties 4 and perused the decisions cited by the learned Counsel for the parties. The Apex Court in para (10) of the judgment in David Joseph Guido (cited supra) has observed thus : “10. A plain reading of the certificate shows that the authority has certified only two facts, namely, that the appellant was a member of the armed forces of the Union and had retired and that he did not possess any other suitable house in the local area where he or any member of his family could reside. The presumption of conclusive evidence applies to the facts stated in the certificate and to no other fact. Evidently ownership of the flat in dispute and relationship of landlord and tenant are not facts stated therein, so it is futile to contend that the presumption extends to those facts also.” Similarly, in para 5(4) of the decision in Sushilabai Vasudeo Jaeel and others (cited supra), this Court has observed thus : “As a rule of evidence, a further provision is made for issuing a certificate by the competent Authority. By the explanation, it has been made clear that for the purposes of this section, any certificate granted by the competent authority shall be conclusive evidence of the facts stated therein. Therefore, the Legislature has chosen a responsible officer like Head of Service or Commanding Officer for performing this duty. 5 The power or authority has to be exercised by these responsible Officers on the basis of their satisfaction and not arbitrarily and mechanically, nor as a matter of course. Certificate cannot be granted for mere asking of it. The power or authority to issue certificate has to be exercised after considering the relevant material. It has to be based on relevant data, evidence or guidelines. Therefore, the power or authority conferred upon the competent officer is coupled with duty and his signature on such a certificate is not a mere formality.” The above referred observations would demonstrate that the Legislature wanted to make special provisions so as to enable the defence personnel to regain possession of their premises. Keeping this object in view, the special provisions were evolved and, therefore, scheme of Section 23 of the said Act will have to be understood in the backdrop of these aspects coupled with the fact that defence personnel, who has submitted application, has to primarily prove that he is a member of the Armed Forces and he does not possess any other premises as required under the provisions of Section 23 of the said Act. 6 Taking into consideration the overall view of the matter, no case is made out for showing indulgence. The petition is dismissed. JUDGE JUDGE khj