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2003 DIGILAW 481 (PNJ)

Deepak Suri v. Commodore K. S. Sandhu

2003-04-01

M.M.KUMAR

body2003
Judgment M.M.Kumar, J. 1. This petition under sub-section (8) of Section 18(A) of East Punjab Urban Rent Restriction (Extension to Chandigarh) Act, 1974 (for brevity `the Act) by the tenant-petitioner Sh. Deepak Suri, challenges order dated 4.2.2003 passed by the Rent Controller, Chandigarh, whereby the tenant- petitioner is ordered to be evicted from the ground floor of H.No. 4, Sector 16-A, Chandigarh, within a period of two months. The ejectment application filed by the tenant-petitioner under Section 13-A of the Act has thus been allowed. 2. The facts in brief are that the landlord-respondent filed ejectment petition under Section 13-A being R.A. No. 350 of 3.8.1990 on the allegation that he purchased half portion of the demised house on 30.7.1998 and he had sought premature retirement with effect from 31.7.1998. The transfer certificate was issued by the Estate Officer on 31.7.1998. On the allegation that there were triable issues, the High Court vide order dated 14.2.2001 granted leave to contest to the tenant-petitioner. It is also admitted case of the parties that Lt. Col. Anup Singh, the vendor of the property is the father of the landlord-respondent, who is vendee of the half portion of the demised house by the sale deed dated 30.7.1998. It has also been accepted that the landlord-respondent is a specified landlord under Section 2(hh) of the Act, which means that the landlord-respondent was holding a post in connection with the affairs of the U.O.I. It is admitted position that there is relationship of landlord and tenant. While allowing leave to contest, the High Court has specifically ordered that no dispute would be raised by the tenant-petitioner about the status of the landlord-respondent by disputing the validity of the certificate dated 10.8.1997 because the validity of the certificate was admitted in the written statement by the tenant-petitioner. The tenant-petitioner contested the ejectment petition on various grounds inter alia by arguing that the transfer of half portion of the demised house, a day before the retirement of the landlord-respondent was a camouflage and that the landlord-respondent was unlikely to occupy the premises. The afore-mentioned pleas of the tenant-petitioner were dealt by the Rent Controller by making the following observation :- "8. The afore-mentioned pleas of the tenant-petitioner were dealt by the Rent Controller by making the following observation :- "8. It may be mentioned at the outset that leave to contest was granted to the respondent by Honble High Court vide order dated 14.2.2001 and it was specifically ordered that petitioner will raise only such pleas as were raised in the application under Section 13-A of Rent Act. It was specifically ordered that plea of the tenant to challenge validity of the certificate dated 10.8.1997 was declined. The respondent has admitted this fact in his written statement, therefore validity of the certificate cannot be looked into by this Court, as pleaded by ld. counsel for respondent. 9. The respondent has alleged that sale deed in favour of the petitioner is a sham transaction because father of petitioner Sh. Anup Singh failed to get eviction order despite litigating for more than 20 years against tenants on both the floors. The petitioner had himself made a request for pre-mature retirement with effect from 31.7.1998 vide letter dated 7.11.1997 Ex. R-1. He got executed the sale deed from his father regarding half portion of the house in dispute on 30.7.1998 i.e. one day prior to his retirement to take benefit of the provisions of the Rent Act, which provide that person retiring should be owner and landlord of the premises. The previous litigation is not denied by the petitioner. Copies of various judgments between Anup Singh and tenants have been placed on file. However, counsel for the petitioner argued that litigation has no effect on the rights of petitioner who had purchased half share and has become specified landlord. He has also repelled the contention of the respondent by getting pre-mature retirement, the petitioner does not become specified landlord. xxx xxxx xxx xxx 10. The sale deed was admittedly executed on 30.7.1998 while petitioner retired on 31.7.1998. It has been pleaded by respondent that even transfer certificate was got from the Estate Officer on the very next date i.e. 31.7.1998, even then the transfer was made in the Estate Officer on 31.7.1998 and therefore petitioner became owner only on that date while he had already retired with effect from 31.7.1998. I do not find force in this contention of the respondent because retirement from 31.7.1998 means that he retired after working full day on 31.7.1998. I do not find force in this contention of the respondent because retirement from 31.7.1998 means that he retired after working full day on 31.7.1998. Moreover sale deed was executed on 30.7.1998 and entries in the Estate Office are not very much material. The title had passed to the petitioner on 30.7.1998 itself and he had become owner of the premises on that date and before his retirement. Therefore, he was specified landlord within the meaning of Section 13-A of the Rent Act. It does not matter if he acquired ownership rights one day or any other time prior to his retirement. Moreover, as held earlier, the tenant cannot challenge the transaction in the rent petition." 3. After rejecting the pleas raised by the tenant-petitioner, the learned Rent Controller held that the landlord-respondent required the demised premises for his bonafide personal use. The view of the Rent Controller on this issue reads as under :- "The petitioner has pleaded that he requires the premises for his bonafide personal requirement. He had filed petition against tenant on the first floor also and same has been allowed vide judgment dated 16.5.2001 Ex. P-5. Petitioner has specifically pleaded that his mother-in-law is living with him and he had two daughters and one son who are to live with him, though one daughter has since been married but he needs a drawing-cum-dining and room for a servant also. The accommodation on first floor is therefore not sufficient for him. It is also well settled that it is for the landlord to see his requirement and tenant cannot dictate the terms in this regard. Moreover the petition has been filed under Section 13-A of the Rent Act. Once the ingredients of Section 13-A are made out, it is not of much importance if the landlord needs entire premises for his bonafide necessity." 4. Mr. Chetan Mittal, learned counsel for the tenant-petitioner has argued that the basic reasons, and objects, which have led to the incorporation of Section 13-A have to be kept in view while interpreting Section 13-A. According to the learned counsel, the hardship of the employees holding a post in connection with the affairs of U.O.I. or of a State was the underlying object when Section 13-A of the Act was enacted. The legislature never contemplated that such a right could be wielded by an unscrupulous landlord by misusing his status as a Government employee to get an order of eviction by purchasing a property few days before his retirement. In support of his submission, the learned counsel has placed reliance on a judgment of the Supreme Court in the case of Winfred Ross v. Ivy Fonseca, 1984(1) RCR(Rent) 117 (SC) : AIR 1984 SC 459 and argued that the Supreme Court refused to accept the argument that a member of the Armed Forces, who became owner of the rented property after his retirement could successfully eject his tenant. In that case the landlord lost his petition because the Supreme Court felt that a retired military officer, who has no house of his own could purchase a building in occupation of a tenant after his retirement, successfully evict such a tenant on the ground that he needed it for his use, then sell it for a price and he could again acquire a building and deal with it in the same way. The learned counsel has also pointed out that in his application seeking premature retirement dated 7.11.1997 with effect from 31.7.1998, the reason for seeking premature retirement specified by the landlord-respondent is that he wanted to generate more income in order to pay instalment of a flat, which he had purchased in Bombay and for that purpose wanted to say at Bombay. According to the learned counsel, this disclosure by the landlord-respondent further shows that he is likely to stay in Bombay and would have no objection to occupy the demised premises in Chandigarh. 5. Having heard the learned counsel and perusing the record, I am of the considered view that this petition is liable to be dismissed because this Court while allowing the revision petition of the tenant-petitioner granted him leave to contest had specifically ordered that the tenant-petitioner would not raise any challenge to the validity of the certificate dated 10.8.1997, which shows that the landlord-respondent is a member of public service discharging duties in connection with the U.O.I. The relationship of landlord and tenant can also not been denied. It is also clear that the landlord- respondent became the owner of half portion of the demised premises on 30.7.1998 when he still was in service. It is also clear that the landlord- respondent became the owner of half portion of the demised premises on 30.7.1998 when he still was in service. Therefore, it cannot be said that he acquired the status of landlord after his retirement and the plea of camouflage cannot be accepted. 6. The basic object contemplated by Section 13-A is to mitigate the hardship of a landlord, who has rendered service on a post in respect of U.O.I. or of a State by giving him a right to recover immediate possession of a residential building or a scheduled building or any part of such building if it is let out in part or parts. Section 13-A reads as under :- "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 alongwith 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 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." 7. The substantive ingredient of Section 13-A of the Act requires that the landlord within one year after the date of his retirement could apply to the Rent Controller. He is required to produce a certificate of a competent authority showing that he is covered by Section 2(hh) and that he was discharging his duty on a post in connection with the affairs of the U.O.I. or of a State. He is required to produce a certificate of a competent authority showing that he is covered by Section 2(hh) and that he was discharging his duty on a post in connection with the affairs of the U.O.I. or of a State. He is further required to file an affidavit stating that he did not own and possess any other suitable accommodation in the local area. The provision has been tempered with a non obstante clause which would imply that despite any other provision, this section would be available to a landlord covered by Section 2(hh). 8. The reasons and objectives would also show that it is only to help employees belonging to the State or the Central Government and the defence personnel to get immediate possession of the residential building or a scheduled building. The statement of objectives and reasons appended to Section 13-A of the Act read as under :- "Statement of objects and reasons : There have been representations that defence personnel and other Central and State Government employees are facing considerable difficulties in getting their residential houses vacated from tenants. The existing provisions of the East Punjab Urban Rent Restriction Act, 1949 do not provide any immediate relief to such employees. Cases have come to the notice of the State Government where such personnel are forced to face protracted litigation in courts involving considerable hardship and financial loss. The Kendrya Sainik Board also been pressing the State Government to provide relief in this regard. With a view to mitigate the hardship being faced by defence personnel and other Central and State Government employees, there is a need to amend the East Punjab Urban Rent Restriction Act, 1949 providing summary procedure for eviction of tenants from the residential and scheduled buildings of defence personnel and other Central Government and State Government employees on the eve of their retirement for their personal occupation and enabling such employees to get such buildings vacated from tenants within one year prior to or within one year and after the date of their retirement or after their retirement within one year of the date of commencement of this legislative measure. In the case of death of such a person the benefit of seeking eviction through summary procedure is also proposed to be granted to his widow or widower as the case may be, a child or a grand child or a widowed daughter-in-law who has dependent upon him. Further safeguarding against misuse, the Bill also makes a provision for imprisonment and fine in case such a person after having evicted a tenant/tenants through summary procedure does not occupy the building within three months or lets out it or any portion thereof within three years of such eviction and evicted tenant has also been made entitled to restoration of possession of the building in question." 9. Sh. Chetan Mittal, learned counsel for the tenant-petitioner has based his argument on the judgment of the Supreme Court is Winifred Rosss case (supra) that if a landlord is permitted to acquire proprietary right in a rented building, a day before his retirement then he would stand on par with a landlord, who had acquired right after his retirement and such a transaction should be held to be a camouflage. At first blush the argument looks attractive but on close examination I find the same without any merit. The judgement of the Supreme Court in Winifred Rosss case (supra) would apply to a case where the landlord had acquired proprietary rights after he ceases to hold a post in connection with the affairs of a State or U.O.I. However, such is not a case in the present petition. If the argument of the learned counsel for the tenant-petitioner is accepted, then it would lead to chaos and confusion. If the landlord had purchased property, a month or year before his retirement, then the same argument could be raised. The legislature in its wisdom has specified an objective method by providing an objective criteria, where the specified landlord would be a person, who is entitled to receive rent in respect of the demised premises of his own account and who is holding or has held an appointment in public service or post in connection with the affairs of U.O.I. or of a State. Therefore, the observation of the Supreme Court in Winifred Rosss case would not be attracted to the facts of the present case. Therefore, the observation of the Supreme Court in Winifred Rosss case would not be attracted to the facts of the present case. The following para of the judgment would show that the judgment would apply to a case where the status of landlord was acquired after retirement and thus the benefit of summary procedure was not made available to the landlord :- "Since a liberal interpretation of Section 13-A1 of the Act is likely to expose it to a successful challenge on the basis of Article 14 of the Constitution, it has to be read down as conferring benefit only on those members of the Armed Forces who were landlord of the premises in question while they were in service even though they may avail of it after their retirement. Such a construction would save it from the criticism that it is discriminatory and also would advance the object of enacting it, namely, that members of the Armed Forces should not while they are in service feel worried about the difficulties of a long drawn out litigation when they wish to get back the premises which they lessed out during their service. Persons in the position of the landlord in the present case cannot, therefore, maintain a suit under Section 13-A of the Act. The High Court was, therefore, right in rejecting the above contention." 10. The other argument the landlord-respondent does not bonafide require the premises would also not require any detailed consideration because in para 14 of the judgment as extracted above, the learned Rent Controller in detail has dealt with the afore-mentioned submission. It is admitted position that the landlord-respondent does not have any residential house in the local area of Chandigarh. Therefore, availability of a flat in Bombay would not constitute a valid ground to decline the relief to the landlord-respondent. 11. Moreover, the penal provision has been made in Section 19(2-A) of the Act providing that if a specified landlord fails to occupy the building for a continuous period of three months from the date of the eviction or lets out the whole or any part of it in contravention of sub-section (4-A) of Section 13 of the Act then he could be punished with imprisonment for six months or fine. It is further evidence that under Sub-section (4-A) of Section 13 the tenant has been given a right to re-occupy the demised premises in case the landlord fails to occupy such premises. If the argument of the learned counsel for the tenant-petitioner is accepted then neither Section 19(2-A) nor Section 13(4-A) would ever come in play. There are adequate checks and balances created by the legislation after weighing equities on both sides. In Zenobiba Bhanot v. P.K. Vasudeva, 1996(1) RCR(Rent) 72 (SC) : 1995(6) SCC 770 their Lordships of the Supreme Court considered Section 13-A of the Act. Highlighting various features of Section 13-A of the Act their Lordships observed as under :- "The title of Section 13-A states that the right is given to a "specified landlord" to recover immediate possession of residential or scheduled building. The Statement of Objects and Reasons also states that the summary procedure for eviction of tenants from the residential and scheduled buildings is provided in Section 13-A. The crucial words in Section 13-A clearly point out that, where a specified landlord, at any time within one year .....applies to the Rent Controller ....to recover possession of his residential building for his own occupation...., there shall accrue, on and from the date of such application to such specified landlord..., a right to recover immediately the possession of such residential building.... or any part or parts of such building, if it is let out in part or parts. The provisions of the statute are clear. The right is given to a "specified landlord" to recover immediate possession of the residential building. He should have retired from the service and should file an affidavit that he does not own and possess any other suitable accommodation to reside. In such a case, he can require possession of his residential or scheduled building for his own occupation. The right is given to the landlord notwithstanding any other provision in the Act or any other law or any contrary to the contraries, to recover immediately the possession of such residential building. If such residential building is let out in parts, the landlord is given the option to recover immediately the possession of such residential building itself or any part or parts of such building, in cases where it is let out in part or parts. If such residential building is let out in parts, the landlord is given the option to recover immediately the possession of such residential building itself or any part or parts of such building, in cases where it is let out in part or parts. In cases where the building is let out in parts, the parts so let out, will form part of the building itself. All that the second proviso provides is that the said right shall not enable the landlord to recover possession of more than one residential or scheduled building inclusive of any part or parts thereof, if the building is let out in part or parts. There are no words in Section 13-A of the Act to import the idea that if a residential building is let out in parts, each part will become a residential building thereby fettering the "specified landlord" to avail the concession only from a part. Section 13-A, which gives a special right to the landlord, is to enable him to exercise the right to recover the residential building for his own occupation, if he does not own or possess any other suitable accommodation. In interpreting the section, it is a far-cry to state, that the question as to whether the accommodation with the landlord after taking possession from one of the tenants is sufficient for his personal requirement or not, is not to be gone into in such proceedings. The right is given to the landlord, in case where he does not own or possess any other suitable accommodation to recover possession of his residential building. If the building is let out in parts, any or all such parts can also be recovered, since the part or parts let out, form part of the building. Section 13-A clearly points out that the landlord has an option to get the recovery (the immediate possession) of the said residential building or any part or parts of such building, in a case where the building is let out in parts. The option so given to the landlord by the concluding words in the opening clause of Section 13-A, in cases where the building is let out in part or parts, either to recover the whole building or to recover in part or parts thereof is reinforced by the second proviso. The option so given to the landlord by the concluding words in the opening clause of Section 13-A, in cases where the building is let out in part or parts, either to recover the whole building or to recover in part or parts thereof is reinforced by the second proviso. By no stretch of reasoning, the second proviso to section 13-A can be construed as nullifying the main provision of Section 13-A and, in particular, the concluding words in the opening clause of Section 13-A whereby the option is given to the landlord to recover the possession of residential building itself or any part or parts thereof in cases where the building is let out in part or parts. We hold that the reasoning and conclusion to the contrary in the two reported judgments of the Punjab and Haryana High Court and also in the judgment under appeal dated 20.7.1992 are clearly erroneous and unjustified. On the other hand, the reasoning contained in the order of reference dated 26.11.1990, appeals to us, as reasonable and fair and the same is in accord with the legislative intent and the language of Section 13-A of the Act. We set aside the judgment of the Division Bench of the Punjab and Haryana High Court dated 20.7.1992 appealed against therein and allow the appeals." (Emphasis in original) 12 For the reasons stated above, this petition fails and the same is dismissed. The tenant-petitioner is granted two months time from today to vacate the premises and hand it over to the landlord-respondent.