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Madhya Pradesh High Court · body

1994 DIGILAW 204 (MP)

Mohan Das v. Deven Das

1994-03-16

K.L.ISSRANI

body1994
ORDER K.L. Issrani, J. 1. The order in this revision petition shall also govern the disposal of Kishore Kumar Magurkar & another Vs. Deven Das C.R. No. 524 of 1993, decided on 16th March, 1994. 2. In these revision petitions the point raised is as to whether an employee of a Municipal Corporation is a Government servent within the meaning of section 23 - J of the M.P. Accommodation Control Act, 1961 ? 3. In these revision petitions admittely the non -applicant Deven Das is a common landlord. He was working as lower Division Clerk in Municipal Corporation, Bhopal and retired on 31.7.1989. After retirement he filed an application before the Rent Controlling Authority, Bhopal under section 23-A of Chapter III for eviction of the applicants-tenants. 4. According to the applicants, the non-applicant is not covered in the definition of the landlord as defined under section 23-J of the M.P. Accommodation Control Act, 1961 (Hereinafter referred to as'the Act'). Therefore, the application before the Rent Controlling Authority is not maintainable. They have, therefore, challenged the impugned order passed by the Rent Controlling Authority on the ground that the Rent Controlling Authority committed an error law in allowing the application of the non-applicant/landlord. The employees of the Municipal Corporation are not Government Servants as the State Government does not come into the picture so far as the recruitment and conditions of services of such employees are concerned. Municipal Council or Corporation is a body corporate and a distinct entity than the State in law. Application for ejectment filed by such retired Municipal Corporation employee, therefore, does not lie before the Rent Controlling authority. For this, learned counsel for the applicants have relied on the decision of this Court reported in Shiv Singh Vs. Krishan Gopal 1986 M.P.R.C.J. 341., as also that of apex Court reported in Union of India Vs. Komal Charan A.I.R. 1992 S.C. 1479. 5. Learned counsel for the non-applicant landlord has opposed the submissions of the learned counsel for the applicants and submitted that such landlords are covered within the definition of section 23-J clause (i) of the Act. According to him any Government including the local-self- Government like Municipal Corporation as defined in Schedule VII, List II, Item 5 given under the Constitution of India is a 'state' because it has powers to impose tax and penalties as is done by the State Government. According to him any Government including the local-self- Government like Municipal Corporation as defined in Schedule VII, List II, Item 5 given under the Constitution of India is a 'state' because it has powers to impose tax and penalties as is done by the State Government. He has relied on Commissioner Vs. Patiram 1986 M.P.L.J. 726. and Asst. Director, C.I. Vs. Harnam Chand A.I.N. 1979 Jammu & Kashmir 33., where the word. 'Government' is defined by Full Bench, but according to him Schedule VII List II, item 5 was taken into consideration in that decision. He therefore, supports-the order passed by the Rent Controlling Authority. 6. In the case of Shiv Singh Vs. Krishan Gopal (supra), the landlord was anemployee as Accounts Officer in Dabra Municipality and retiredon 16.9.1983.Thereafter on 5.10.1993 he filled an application before the Rent Controlling Authority, Dabra under Sec. 23-A of the Act. The tanant had raised an objection that the application was not maintainable because the landlord was not a retired Government servant. The objection was reppelled by the Rent Controlling Authority but allowed by this Court. This Court held that the servant of Minicipal Council is not a Government servant. Thus, he does not fall within the defination of the term "Landlord" as defined under Section 23-J of the Act. 7. The submission of the learned counsel for the landlord herein is that there is difference between the Municipal Council and Municipal Corporation and the Municipal Corporation will be covered in the word "any Government' as defined under clause (i) of section. 23-J of the Act. Section 23-J (i) of the Act is reproduced hereunder for proper understanding :- 23-J Definition of landlard for the purpose of Chapter III-A- For the purposes of this Chapter "Landlord" means landlord who is (1) a retired sarvant of any Government including a retired member of Defence Services, or'' List II of Schedule VII of the Constitution of India is a State List which includes Local Government, that is to say, the constitution and powers of Municipal Corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration. Thus it only means that the Municipal Corporation is authorised to impose certain taxes which conferred on it by the State Legislature upon a local or municipal authority but it does not mean that the State Legislature loses its power to impose a tax on the same subject-matter as long as the authorisation in favour of the local authority subsists or that the subject-matter cannot be taxed by the State Legislature and the local or municipal authority as held in Cantonment Board Vs. W.I. Theatres A.I.R. 1954 Bom. 261. Municipal Corporation in such a case may fall within Art. 12 of the Constitution of India being the State for the purposes of entertaining the petition for and against Municipal Corporation within the meaning of Article 226 or 227 of the Constitution of India, but it cannot be said to be a 'State' otherwise. In Astt. Director, C.I.V. Harnam Chand (Supra), the term "Government" has been defined. Term "Government" also includes Union Government. But the learned counsel for the non-applicant landlord, submits that the aforesaid case does not take into consideration the word "local self-government" as montioned in List II of Schedule VII of the Constitution of India. I do not think that the word "any Government' includes local self-government for the purposes of Government servant, who fall within the purview of definition of Section 23-J of the Act. Municipal employees have their own recruitment rules laying down terms and conditions of their services. Thay arc appointed and terminated by the municipal authorities only. No approval of the State Government is required for the same. Moreover, their salary is also not drawn from the State Exchequer. They are not civil servents. Fundamental rules are not applicable to them. The provisions of article 311 of the Constitution of India are also not attracted in their cases. As such they can not be said to be the Government servant or civil servants. The appointment of Municipal Corporations empolyees is governed by Section 58 of the Municipal Corporation Act, which gives authority to the Corporation to appoint a City Engineer, a Health Officer, a Revenue officer, a Municipal Secretary and an Accounts officer and a Deputy Municipal Commissioner, and such other officers and servants as are necessary for the efficient carrying out of the purposes of this Act. 8. In the present case admittedly the non-applicant landlord was not appointed by the State Govt. 8. In the present case admittedly the non-applicant landlord was not appointed by the State Govt. As such he cannot be said to be an employee of the State Government or Government servant. Union of India Vs. Komal Charan (supra) was case of officers of Municipal Cadet Corps, whose age of retirement was under challenge. It has been held that the fundamental rules are not applicable to the officers appointed even on whole-time basis in National Cadet Corps. N.C.C. Officers employed on whole-time basis are paid exclusively by the Central Government from the Defence Services Estimates. Therefore, the pay of such officers is not debitable to the Civil Estimates, as required by fundamental Rule 2 for the application of the fundamental Rules, it was held that the Fundamental Rules 2 for the application of the fundamental Rules, it was held that the fundamental Rules would not therefore be attracted in their case. Therefore in the present case. Municipal Corporation employee also cannot be said to be Government Servants. That being so, they will not be covered wihtin the definition of Section 23-J of the Act. Case of Commissioner V. Patiram (supra) relied on by the learned counsel for the landlord for the purpose of article 12 of the Constitution of India is also not applicable to the facts of the present case. 9. Consequently, the revision petition is allowed. The impugned order passed by the Rent Controlling Authority Bhopal is hereby quashed. However, there shall be no order as to costs.