Latika Sharad Joshi v. Additional Divisional Commissioner
2024-05-08
ANIL SATYAVIJAY KILOR
body2024
DigiLaw.ai
JUDGMENT : (Anil Satyavijay Kilor, J.) 1. Heard. 2. RULE. Rule made returnable forthwith. Heard finally by consent of the parties. 3. This matter pertains to eviction of tenant i.e. petitioner No.2 by the landlord, respondent No.3 from the suit house. The petitioners by way of the present petition, raising a challenge to the order dated 16/06/2023 passed by the Additional Divisional Commissioner, Nagpur and Revisional Authority under the Maharashtra Rent Control Act, 1999, Nagpur Division, Nagpur in Revision Case No.120/RC- 44/2021-22 arising out of order dated 18/05/2021 passed by the respondent No.-2, directing the petitioners to vacate the suit premises. 4. The case of the respondent No.3/Landlord is as under : a) The Respondent No. 3 is the owner of the house property, which is comprised of a cement concrete construction of a single-story structure bearing Municipal House No. 266 situated at Ward No. 68 at Plot No. 41-K. Bharat Nagar, Nagpur. It consists of five rooms, and the same total area measures approximately 1200 sq. feet. b) The respondent No. 3 is a retired Air Force person, and he was a member of the armed forces of the Union of India (Indian Air Force) from 1996 until he retired in 1991 as Wing Commander. The said property was acquired by him in 1982, when he was in the Air Force Service. Subsequently, he built a house on it in 1984-85. After retiring in 1991, he rented the house to the petitioners in 1992, expecting to move back to Nagpur soon. c) The Petitioners were inducted as tenants in the disputed property and occupied it on February 15, 1991. It is submitted that after shifting to Mumbai, the respondent No.3 found that the weather in Mumbai was not suitable for his health. Also, the respondent No.3 desired to settle in Nagpur, which is his home city. However, at that point in time, the suit house was already occupied by the petitioners. The Respondent No.3 does not have any property owned by him as such to reside at, except for the suit house in Nagpur. d) Respondent No.3 was required to approach the learned Rent Controller, Nagpur, for permission to terminate the tenancy of the petitioners under the provisions of the CP & Berar Letting of Houses and Rent Control Order, 1949.
The Respondent No.3 does not have any property owned by him as such to reside at, except for the suit house in Nagpur. d) Respondent No.3 was required to approach the learned Rent Controller, Nagpur, for permission to terminate the tenancy of the petitioners under the provisions of the CP & Berar Letting of Houses and Rent Control Order, 1949. Accordingly, permission was granted to Respondent No. 3 vide order dated 27/07/1996, and some of the orders arising out of the said relevant proceedings came under challenge before the Hon'ble High Court of Judicature at Bombay and Bench at Nagpur via WP Nos. 3454/2007 and 74/2008. e) The Hon'ble High Court was pleased to dispose of the said petitions vide order dated 21.04.2008, wherein the 'Minutes of Orders' have been recorded. As per the orders passed in the said writ petitions, Respondent No. 3 has withdrawn all the earlier proceedings initiated in consonance with the provisions of the C.P. & Berar Letting of Houses and Rent Control Order, 1949. f) Thereafter, the Respondent No.3 had approached the Competent Authority, seeking directions from the petitioners to vacate the disputed house and deliver the vacant possession thereof to the Respondent No.3 as contemplated under Section 23 of the Maharashtra Rent Control Act, 1999 (hereinafter referred to as "the Act of 1999"). In view of the old age and tough conditions in Mumbai, Respondent No.3 desired to settle at the only house he owns in Nagpur, and he needs the disputed house property for his own bona fide needs. The learned competent authority allowed the application in favour of Respondent No.3 vide order dated 16/12/2016. g) Feeling aggrieved by the above order, dated 16/12/2016, the petitioners filed a revision application before the first respondent, i.e., the Additional Divisional Commissioner, in terms of Section 44 of the Act of 1999. The Revisional Authority, vide order dated 02/03/2017, remanded the matter back for fresh consideration. Thereupon, the order of the Revisional Authority was challenged by Respondent No.3 before this Hon'ble Court by way of Writ Petition No.3986/2017; the same was dismissed by this Hon'ble Court vide order dated 03/05/2019. h) In view of the order dated 03/05/2019 of this Hon'ble Court, the original proceeding was once again opened by the learned competent authority for a fresh inquiry.
h) In view of the order dated 03/05/2019 of this Hon'ble Court, the original proceeding was once again opened by the learned competent authority for a fresh inquiry. The Learned Competent Authority, vide order dated May 18, 2021, allowed the application of Respondent No.3, and directions were issued to the Petitioners to vacate the suit premises and hand over possession thereof to Respondent No. 3 within 90 days. i) Feeling aggrieved by the said order, the petitioners had approached the Revisional Authority under Section 44 of the MRC Act. The above revision application was decided by the learned revision authority, i.e., Respondent No. 1, vide order dated 16/06/2023, rejecting the revision application of the petitioners. Hence this petition. 5. I have heard the learned counsel for the respective parties. 6. Shri Khapre, learned Senior Advocate for the petitioners argues that: i) The impugned order of the Respondent No. 1 i.e Revisional Authority is illegal, arbitrary and passed without application of mind. ii) The learned Revisional Authority failed to consider the case of the petitioners as regards the admissibility, contents and execution of the certificate issued by the Station Commander. In support of his submission the learned counsel for the petitioners have placed reliance on the judgment of the Hon'ble Supreme Court of India in the case of Bank of India ..vs.. Allibhoy Mohammed, reported in AIR 2008 Bom. 81 and a Division Bench judgment of this Court in the case of Omprakash Berlia ..vs.. Unit Trust of India, reported in 1983 Mh.L.J. 339. iii) Since, the Competent authority did not brought legal representative of Smt. Latika Joshi, despite the knowledge of her death, the petitioners claim that the tenancy proceedings ought to be abated wholly. iv) The Competent Authority failed to appreciate that the burden to prove ownership rests solely on the shoulders of the person asserting it, whereas the petitioners have denied the title of the respondent No. 3 regarding the disputed property and the respondent No. 3 had not proved his ownership over the house and did not bring on record any document of title. v) The application under Section 23 of the Act of 1999 was liable to be dismissed solely on the ground that the Respondent No.3 had not proved ownership, which is mandatory requirement under Section 23, also the findings on the issue of bona fide need are perverse in nature.
v) The application under Section 23 of the Act of 1999 was liable to be dismissed solely on the ground that the Respondent No.3 had not proved ownership, which is mandatory requirement under Section 23, also the findings on the issue of bona fide need are perverse in nature. To fortify above submissions, the learned counsel for the petitioners has placed reliance on the judgment of the Hon'ble Supreme Court of India in the case of Avtar Singh vs.. Gurdial Singh, reported in 2006 (12) SCC 552 , Union of India ..vs.. Vasavi Coopo. Housing Society Ltd., reported in (2014) 2 SCC 269 and a judgment of Coordinate Bench of this Court in the case of Col. Vijaysinh Gopalrao Ghorpade ..vs.. Namdeo Yeshwant Chavan, reported in (1996) 2 Bom CR 569. vi) The finding by the competent authority stating that there is no limitation for filing an application under Section 23 for the members of the armed forces is wrong on the face of Sec 23(1)(A). It is submitted that law demands exercise of any right within a reasonable period of time and on the contrary in this case the respondent No.3 had approached the Court after 17 years of his retirement. vii) The learned competent authority erred in reading the document Article A-3 in evidence. Similarly, erred in relying upon the alleged mortgage deed, Exhibit No. A-17, for conferring ownership of the subject property. viii) It is a settled principle that a Mortgage Deed is not a document of title. ix) The petitioners claim that by merely putting a document on record does not satisfy the requirement of section 23 of MRC Act or the Evidence act, it can only be produced when it is proved accordance with the provisions of Indian Evidence Act. In support of his submissions the learned counsel for the petitioners has placed reliance on the judgments of the Hon'ble Supreme Court of India in the cases of Sait Tarajee Khimchand and others. ..vs.. Yelamarti Satyam and others, reported in AIR 1971 SC 1865 , LIC ..vs.. Ram Pal Singh, Bisen, reported in 2010(4) SCC 491 and a judgment of this Court in the case of Durgashankar ..vs.. Babubhai, reported in 2003 (2) Mh.L.J. 576 . x) Section 23(2)(1)(iii) contemplates certificate of commanding officer or the head of the services or the station commander of the retired officer.
Ram Pal Singh, Bisen, reported in 2010(4) SCC 491 and a judgment of this Court in the case of Durgashankar ..vs.. Babubhai, reported in 2003 (2) Mh.L.J. 576 . x) Section 23(2)(1)(iii) contemplates certificate of commanding officer or the head of the services or the station commander of the retired officer. However, the certificate has not been issued by the authorized officer as contemplated in the above section. The said certificate was issued without any enquiry and verification of facts and reports. xi) The Learned Competent Authority ought to have seen from the evidence that Respondent No.3, by choice and desire and with a view to settle permanently, had shifted to Mumbai after his retirement, which is clear from the facts that he and his wife took employment in Mumbai, which demonstrates that they had settled in Mumbai and wish to stay there for life and had no desire to shift to Nagpur. Therefore, it is clear that Respondent No. 3 and his family are in no bona fide need of the disputed premises. 7. Shri Deshpande, learned counsel for respondent No.3 argues as under: a) There is no limitation provided under Section 23 of the Act of 1999, in relation to a member of Armed Forces of Union. Hence, the application filed by the respondent No.3 was not time-barred for not filing it within one year from his retirement. b) The order of eviction would not vitiate on the ground that legal heirs of the petitioner No.1 were not brought on record in view of the fact that the petitioner No.2 was staying with the petitioner No.1 and since the petitioner No.2 was party to the petition there is no need to bring LRs of petitioner No.1 on record. For the said reason even the proceeding cannot be treated as abated. c) In view of Section 23(2) of the Act of 1999, which gives conclusiveness to the certificate, such certificate can be read in evidence. In support of this submission the learned counsel for the respondent No.3 has placed reliance on the judgment of the Hon'ble Supreme Court of India in the case of Kanta ..vs.. C.K.S. Rao, reported in (1998)1 SCC 403 and Cheeranthoodika ..vs.. Parambur, reported in (2002) 2 SCC 417.
In support of this submission the learned counsel for the respondent No.3 has placed reliance on the judgment of the Hon'ble Supreme Court of India in the case of Kanta ..vs.. C.K.S. Rao, reported in (1998)1 SCC 403 and Cheeranthoodika ..vs.. Parambur, reported in (2002) 2 SCC 417. d) In the first round of litigation, from Rent Controller till this Court, the petitioners admitted the fact that they are the tenant and respondent No.3 is their landlord. In that view of the matter, a presumption under Section 116 of the Indian Evidence Act lies in favour of the respondent No.3 and thereby the petitioners are precluded from denying the ownership of the respondent No.3 in respect of the suit house. In support of this submission the learned counsel for the respondent No.3 has placed reliance on the judgment of the Hon'ble Supreme Court of India in the case of Kamaljit ..vs.. Sarabjit, reported in (2014)16 SCC 472 . e) The Revisional Authority has passed the reasoned order and recorded the findings point-wise. The Revisional Authority has not committed any error in dismissing the revision. f) Both the Authorities below have concurrently held in favour of the respondent No.3 and this Court, while entertaining the writ petition under Articles 226 and 227 of the Constitution of India, can interfere only in case of perversity committed by the Authorities below. In the present matter, in absence of any perversity committed by both the authorities below, this Court may not interfere with the impugned order. In support of this submission, the learned counsel for the respondent No.3 has placed reliance on the judgment of the Hon'ble Supreme Court of India in the case of Celina ..vs.. Ulhas, reported in (2010)1 SCC 217 and Arun Kumar Keshari ..vs.. Ganesh, reported in (2011) 15 SCC 666 . 8. In light of the above referred rival submissions, I have perused the record and the impugned orders. 9.
Ulhas, reported in (2010)1 SCC 217 and Arun Kumar Keshari ..vs.. Ganesh, reported in (2011) 15 SCC 666 . 8. In light of the above referred rival submissions, I have perused the record and the impugned orders. 9. It is a settled law that the benefit conferred under Section 23 of the Act of 1999 to recover possession of the premises from tenant by resorting to a summary remedy, is conferred only on those members who were landlords of the premises in question while they were in service even though they may avail of it after their retirement, I am of the opinion that before adverting to the arguments made at the bar, it would be appropriate to consider two dates namely the date of induction of the petitioners as tenants and the date of retirement of the respondent No.3. 10. Admittedly, in the first round of litigation, in all the proceedings filed by the petitioners, namely, the appeal against the order of the Rent Controller, the Civil Revision Application and the Writ Petition before this Court, consistently it was the case of the petitioners that they were inducted as tenants by the respondent No.3 in the month of February 1991. Whereas, undisputedly, the respondent No.3 retired on 30th April 1991 i.e. after the petitioners were inducted as tenants. Hence, it can be held that respondent No.3 can maintain the application under Section 23 of the Act of 1999. 11. Now, since the issue of limitation is raised and argued in this petition by the petitioner and as it goes to the root of the matter to decide the jurisdiction of the Competent Authority, let us first examination the same. It is submitted that the application filed by the respondent No.3 under Section 23 of the Act of 1999 was barred by limitation as it was beyond one year. It is submitted that for a member of Armed Forces the time period prescribed for filing application under Section 23 of the Act of 1999 is one year from his retirement. 12. For this purpose, it would be beneficial to consider the object and reasons for enacting such provision. Under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 similar provision namely Section 13-A(1) was there. While considering the object of introducing the said Section the Hon'ble Supreme Court of India in the case of Winifred Ross ..vs..
12. For this purpose, it would be beneficial to consider the object and reasons for enacting such provision. Under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 similar provision namely Section 13-A(1) was there. While considering the object of introducing the said Section the Hon'ble Supreme Court of India in the case of Winifred Ross ..vs.. Ivy Fonseca, reported in (1984) 1 SCC 288 , has observed thus: "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 have 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 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 pro- visions 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.
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 pro- visions 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 such ground if such member or widow, as landlord, 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. The Bill is intended to achieve these objects." 13. Let us now take into consideration the authorities reiterating the Principles of Interpretation. 14. The Hon'ble Supreme Court of India in the case of Nathi Devi ..vs.. Radha Devi Gupta, reported in (2005) 2 SCC 271 has observed thus : "13. The interpretative function of the court is to discover the true legislative intent. It is trite that in interpreting a statute the court must, if the words are clear, plain, unambiguous and reasonably susceptible to only one meaning, give to the words that meaning, irrespective of the consequences. Those words must be expounded in their natural and ordinary sense. When the language is plain and unambiguous and admits of only one meaning, no question of construction of statute arises, for the Act speaks for itself. Courts are not concerned with the policy involved or that the results are injurious or otherwise, which may follow from giving effect to the language used. If the words used are capable of one construction only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act.
If the words used are capable of one construction only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. In considering whether there is ambiguity, the court must look at the statute as a whole and consider the appropriateness of the meaning in a particular context avoiding absurdity and inconsistencies or unreasonableness which may render the statute unconstitutional. 14. It is equally well settled that in interpreting a statute, effort should be made to give effect to each and every word used by the legislature. The courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. A construction which attributes redundancy to the legislature will not be accepted except for compelling reasons such as obvious drafting errors. (See State of U.P. v. Dr. Vijay Anand Maharaj, Rananjaya Singh v. Baijnath Singh, Kanai Lal Sur v. Paramnidhi Sadhukhan, Nyadar Singh v. Union of India, J.K. Cotton Spg. and Wvg. Mills Co. Ltd. State of U.P. and Ghanshyamdas v. CST.) 15. It is well settled that literal interpretation should be given to a statute if the same does not lead to an absurdity. 16. In Nasiruddin v. Sita Ram Agarwal9 this Court stated the law in the following terms: (SCC p. 589, para 37) "37. The court's jurisdiction to interpret a statute can be invoked when the same is ambiguous. It is well known that in a given case the court can iron out the fabric but it cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of the provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It cannot rewrite or recast legislation. It is also necessary to determine that there exists a presumption that the legislature has not used any superfluous words. It is well settled that the real intention of the legislation must be gathered from the language used. It may be true that use of the expression 'shall or may' is not decisive for arriving at a finding as to whether the statute is directory or mandatory.
It is well settled that the real intention of the legislation must be gathered from the language used. It may be true that use of the expression 'shall or may' is not decisive for arriving at a finding as to whether the statute is directory or mandatory. But the intention of the legislature must be found out from the scheme of the Act. It is also equally well settled that when negative words are used the courts will presume that the intention of the legislature was that the provisions are mandatory in character." 17. Even if there exists some ambiguity in the language or the same is capable of two interpretations, it is trite that the interpretation which serves the object and purport of the Act must be given effect to. In such a case the doctrine of purposive construction should be adopted. (See Swedish Match AB v. Securities & Exchange Board of India) 18. In High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat this Court held: (SCC p. 733, paras 35-36) "35. The court while interpreting the provision of a statute, although, is not entitled to rewrite the statute itself, is not debarred from 'ironing out the creases'. The court should always make an attempt to uphold the rules and interpret the same in such a manner which would make it workable. 36. It is also a well-settled principle of law that an attempt should be made to give effect to each and every word employed in a statute and such interpretation which would render a particular provision redundant or otiose should be avoided." 15. Now coming to the principal question, what is the limitation provided for filing the application by a member of the Armed Forces under Section 23 of the Act of 1999. For this purpose, it would be appropriate and beneficial to refer to the relevant part of Section 23 of the Act of 1999, which read thus: "23. Members of armed forces of the Union, scientists or their successor-in interest entitled to recover possession of premises required for their occupation.
For this purpose, it would be appropriate and beneficial to refer to the relevant part of Section 23 of the Act of 1999, which read thus: "23. Members of armed forces of the Union, scientists or their successor-in interest entitled to recover possession of premises required for their 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 (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 of 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 bona fide 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 a landlord who is scientist, he produces a certificate signed by an officer of the Department of Atomic Energy of, or above, the rank of Deputy Secretary to Government to the effect that,- (i) he is presently holding a scientific post in the Department of Atomic Energy or in any of its aided institutions specified in the certificate or he was holding such post and has now retired with effect from the date specified in the certificate; and (ii) he does not possess any other suitable residence (excluding any residential accommodation provided by Government) in the local area where the premises are situated; (c) in the case of a Government servant, he produces a certificate signed by the Head of Department or the Head of the office, or the Chief Executive of the Public Sector Undertaking, by whatever designation called, to the effect that,- (i) he is presently holding the post in that Department, Office or Public Sector Undertaking or he was holding such post and has now retired with effect from the date specified in the certificate; and (ii) he does not possess any other suitable residence (excluding any residential accommodation provided by Government or Public Sector Undertaking) in the local area where the premises are situated; (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 bona fide 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 of 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) in the case of a successor-in-interest of a scientist, he produces a certificate signed by an officer of the Department of Atomic Energy of, or above, the rank of Deputy Secretary to Government, to the effect that,- (i) the successor-in-interest is a widow or any other member of the family of the deceased scientist who died while in service on the date specified in the certificate (or of a scientist who has retired and who died within one year of his retirement on the date specified in the certificate); (ii) such successor-in-interest does not possess any other suitable residence (excluding any residential accommodation provided by Government) in the local area where such premises are situated; or (c) in the case of a successor-in-interest of a Government servant, he produces a certificate signed by the head of his Department, Head of the office, or the Chief Executive, by whatever designation called, of the Public Sector Undertaking, to the effect that,- (i) the successor-in-interest is a widow or any other member of the family of the deceased Government servant, who died while in service on the date specified in the certificate (or of a Government servant who has retired and who died within one year of his retirement on the date specified in the certificate); and (ii) such successor-in-interest does not possess any other suitable residence (excluding, any residential accommodation provided by Government or the Public Sector Undertaking) in the local area where such premises are situated.
(2) Any certificate granted under sub-section (1) shall be conclusive evidence of the facts stated therein. Explanation. - For the purposes of this section, - (1) "authorised officer", in relation to a member of the armed forces of the Union, means the commanding officer or head of services, including,- (i) in the case of an officer retired from the Army, the Area Commander, (ii) in the case of an officer retired from the Navy, the Flag officer Commanding-in-Chief, Naval Command, and (iii) in the case of an officer retired from the Air Force, the Station Commander;" (emphasis supplied) 16. Section 23(1)(A) of the Act of 1999, conferred benefit to recover possession of premises from tenant by resorting to a summary remedy. The above provision speaks and deals with three distinct and separate categories of landlords namely, (i) a landlord who is a member of armed forces of the Union, (ii) a landlord who holds a scientific post in the Department of Atomic Energy of the Central Government or in any of its aided institution ("Scientist"), and (iii) a landlord who is an employee of the Government of India, Government of any State or Union Territory, Public Sector Undertaking of the Government of India or of any State Government. ("Government Servant") 17. From the language of Section 23(1)(A) of the Act of 1999, it is evident that, the time period of one year is provided for the above referred categories (ii) and (iii). Whereas, for the category No.(i) i.e. for a member of the Armed Forces there is no time limit prescribed. 18. The learned counsel for the petitioners tried to impress upon this Court that, the time period prescribed for 'Scientist' i.e. one year is applicable to the members of the Armed Forces too and according to him, Clauses (i) and (ii) of Section 23(1)(A) of the Act of 1999 are not separate clauses for the purpose of limitation. 19. I do not find favour with this argument as it would lead to anomaly. The reasons which are refraining me to agree with such proposition, are as under: a) The legislature while specifying the limitation and other requirements for filing application under Section 23 of the Act of 1999, has intentionally separated all the three categories.
19. I do not find favour with this argument as it would lead to anomaly. The reasons which are refraining me to agree with such proposition, are as under: a) The legislature while specifying the limitation and other requirements for filing application under Section 23 of the Act of 1999, has intentionally separated all the three categories. Though the limitation provided for a 'Scientist' and a 'Government Servant' is one year from the date of retirement, despite the same the legislature has mentioned both the categories of landlords separately. The reason being that the requirement for all the three categories in relation to the contents of the certificate, the Authorized Officer and the limitation as regards the successor of all three categories of landlords, are different and distinct. b) To fortify the above referred point, the most important aspect is that for a member of Armed Forces no requirement is stipulated under the said provision to specify in the certificate the date of his retirement. This is so for the reason that no limitation is provided for a member of Armed Forces and hence, there is no need to compute the limitation. c) However, since limitation of one year is provided for a 'Scientist' or a 'Government Servant', for the purpose of computation of limitation, it is mandatory to specify the date of retirement of such Scientist or a Government Servant, in the certificate. d) For the successor of a Scientist and a Government Servant, the time period as provided for a 'Scientist' or a 'Government Servant' is the same i.e. one year. However, for successor of a member of Armed Forces, the time period provided is five years from the date of death of such member, if he dies when he was in service or in case such member retires and dies within five years. 20. Hence, it is held that there is no time period prescribed for the member of Armed Forces for filing the application under Section 23 of the Act of 1999. It is therefore held that the application filed by the respondent No.3 under Section 23 of the Act of 1999 was not time barred. 21. Let us move to consider the submission of the petitioners that the certificate issued by Commanding Officer cannot be read in evidence as he did not enter into the witness box to prove the same.
It is therefore held that the application filed by the respondent No.3 under Section 23 of the Act of 1999 was not time barred. 21. Let us move to consider the submission of the petitioners that the certificate issued by Commanding Officer cannot be read in evidence as he did not enter into the witness box to prove the same. At this stage, therefore, before adverting to the law in this regard, it would be appropriate to refer to the certificate, which is reproduced herein under: TO WHOM SOEVER IT MAY CONCERN On perusal of the Retired Officers Identity card No. 122752, and other service documents produced by Wing Commander R.V. Shrikhande, Retd., I certify that Wg Car R.V. Shrikhande was a member of Indian Air Force as a commissioned officer and retired on 30 April 1991. I have perused the sworn affidavit affirmed by Wg Cdr R.V. Shrikhande before the Executive Magistrate Nagpur on 29 th June 2007 stating that he owns a house on the Plot No 41, Kinhede layout, Bharat Nagar, Nagpur being the House No. 266 in ward no. 68 in the records of Nagpur Municipal Corporation, Nagpur and that he has no other land or building or any residential property in the entire Nagpur District. Based on his affidavit I certify that he does not possess any other premises suitable for residence in the local area where the premises are situated This certificate is issued on request made by Wg Cdr R.V. Shrikhande Retd to enable him to initiate legal proceedings u/s 23 of the Maharashtra Rent Control Act, 1999. Seal Sd/-. (KH Suresh) Group Captain Station Commander 411 Air Force Station Date : 28 Aug 07.” (emphasis supplied) 22. It is imperative to note that, the object and reasons for enacting the said provision referred herein above, made the legislature to give conclusiveness to the certificate under Section 23(2) of the Act of 1999. 23. The Hon'ble Supreme Court of India had an occasion to consider the admissibility of such certificate in law, in the case of Kanta Udharam Jagasia ..vs.. C.K.S. Rao, reported in (1998) 1 SCC 403 , the Hon'ble Supreme Court observed thus: "18.
23. The Hon'ble Supreme Court of India had an occasion to consider the admissibility of such certificate in law, in the case of Kanta Udharam Jagasia ..vs.. C.K.S. Rao, reported in (1998) 1 SCC 403 , the Hon'ble Supreme Court observed thus: "18. A look at Section 31-F will show that the legislature deviating from the normal procedure otherwise provided in the Act by enabling the aggrieved parties to approach the appellate court has provided a limited jurisdiction to the High Court against the order of the competent authority. Under this provision, the High Court is not expected to go into the matter as an appellate authority reappreciating the evidence, as has been done by the High Court in the present case. With respect, we may say that the High Court has considered the issue as if it was deciding the original suit. The legislature has expressly provided that any certificate granted under sub- section (1) of Section 13- A1 shall be conclusive evidence of the facts stated therein [vide sub-section (2) extracted above]. Nevertheless, the High Court went beyond the certificate and substituted its own reasoning for not accepting the certificate. First of all, the Presidential Order appointing the appellant (supra) as a Scientific Officer as notified in the Gazette was brought to the notice of the High Court and in spite of that the High Court found as follows: "It is no doubt true that Section 13-A1(2) does make the facts stated in the certificate conclusive evidence of the facts stated therein. However, when it is shown that the applicant, by virtue of the duties that she is performing in the BARC, cannot be included in the category of a Scientific Officer, it would be always open to a court to consider whether the applicant was an officer to whom the legislature intended to confer the said benefit. Merely because the BARC, who are the employers of the applicant, have chosen to style the applicant a Scientific Officer would not detract from the power or the jurisdiction of the Court from finding out whether the applicant is in fact a Scientific Officer to whom the benefit of the said provision is to be extended.
Merely because the BARC, who are the employers of the applicant, have chosen to style the applicant a Scientific Officer would not detract from the power or the jurisdiction of the Court from finding out whether the applicant is in fact a Scientific Officer to whom the benefit of the said provision is to be extended. To cite an extreme example, to illustrate my point of view, in case BARC issue a certificate in favour of a peon employed in its office that he is a Scientific Officer would it on account of the conclusiveness which is given to it by sub-section (2), come in the way of the Court to hold that he is not a Scientific Officer. In my view, that cannot be the construction that can legitimately be given to the said provision. This would be so even if as has been pointed out by Shri Abhyankar that the appointment of the applicant, as is seen from the aforesaid Gazette, is made by the President of India." 19. We are unable either to appreciate the example given by the High Court or to accept the conclusion reached by the High Court. Likewise, the High Court found fault with the certificate in stating that the appellant was "an owner of accommodation at 42, Sindhi Society, Chembur Road, Bombay-400 071", without appreciating that Flat No. 3, which is the suit premises, is within this Plot No. 42 and the parties were not in doubt about the premises or about the Society whose name is given in the certificate. The High Court was not justified in finding fault with the certificate by pointing out minor mistakes, viz., in not giving the full details. The High Court was also not right in finding that the certificate was not acceptable for the additional reason that it was issued under colourable exercise of power and with a mala fide intention. We do not find that any such case was put forward or made out before the competent authority. 20. We have already noticed the special provisions made in the Act under Section 13-A1 as well as under Part II-A of the Act and the reason for introducing the said provisions. In one sense the question regarding the conclusive nature of contents contained in the certificate issued as required under Section 13-A1 is no longer res integra.
20. We have already noticed the special provisions made in the Act under Section 13-A1 as well as under Part II-A of the Act and the reason for introducing the said provisions. In one sense the question regarding the conclusive nature of contents contained in the certificate issued as required under Section 13-A1 is no longer res integra. This Court in Shivram Anand Shiroor v. Radhabai Shantram Kowshik had occasion to consider the scope of Section 13-A1 as introduced in the year 1975 before the same was amended in 1977 and 1986. However, as regards the conclusiveness of the certificate there is no change in the section. Chinnappa Reddy, J. speaking for a Bench of three Judges, while repelling a contention that the Bombay Rent Act is a welfare legislation designed among other matters, to protect tenants from harassment and unreasonable eviction by landlords and it should, therefore, be interpreted in a broad and liberal spirit so as to further and not to constrain the object of the Act, observed as follows: (SCC pp. 593-94, para 3) "Notwithstanding the expressed legislative bias in favour of the tenant, the legislature itself made a serious departure from the general rule so as to lean in favour of landlords who are or were members of the armed services, and who because of the exigencies of their service were not able to occupy their own premises during the course of their service. Section 13-A1 was enacted, relaxing the rigour of Section 13 in favour of a landlord who is or was a member of the armed forces. It is now provided that if he produces a certificate in the manner prescribed it shall be taken as established, without further proof that he is presently a member of the armed forces. of the Union or that he was such member and is now a retired ex-serviceman and that he does not possess any other suitable residence in the local area where he or any member of his family can reside. All that he has to further prove is that he bona fide requires the premises for occupation by himself or any member of his family. The certificate is conclusive proof that he does not possess any suitable residence in the local area, but not that he bona fide requires the same for occupation by himself or any member of his family.
The certificate is conclusive proof that he does not possess any suitable residence in the local area, but not that he bona fide requires the same for occupation by himself or any member of his family. There may be cases where he does not possess any other suitable residence in the local area and yet he does not bona fide require the premises for occupation by himself or any member of his family, being comfortably settled elsewhere with no need or pressure to move. But as soon as he establishes that he bona fide requires the premises for occupation for his family, he is entitled to recover possession and does not have to further prove that greater hardship would be caused to him than to the tenant if a decree for possession is not granted. It is of course, implicit that the person producing the certificate is the landlord. It is further implicit that the person mentioned in the certificate presently or previously a member of the armed forces was at a simultaneous point of time both landlord and member of the armed forces. "The Bench has noticed an earlier decision on this provision, namely, Winifred Ross v. Ivy Fonseca4." (emphasis supplied) 24. Thus, it is evident from the above referred observations that if such member produces a certificate in the manner prescribed, it shall be taken as established, without further proof that he is presently a member of the Armed Forces of the Union or that he was such a member and is now retired Ex-Serviceman and that he does not possess any suitable residence in the local area where he or any member of his family can reside. 25. It is further evident that, all that such member has to prove is that he bona fide requires the premises for occupation by himself or any member of his family. As soon as he establishes that he bona fide requires the premises for occupation for his family, he is entitled to recover possession and does not have further proof that greater hardship would be caused to him than to the tenant if a decree for possession is not granted. 26. The Coordinate Bench of this Court in the case of Harjit Singh (Brigadier)..
26. The Coordinate Bench of this Court in the case of Harjit Singh (Brigadier).. vs. Rangmahal Theatre and another, reported in 2007 SCC OnLine Bom 1123, dealt with the similar argument as made in the matter at hand, to the effect that as per well established principles of law the certificate must be proved by the witness who should identify the signature of a person who had signed it and on failure of the same the certificate is not proved. This Court rejected the said argument and held thus: "11. Sub-section (2) of section 13A reads as follows:- "(2) Any certificate granted under sub-section (1) shall be conclusive evidence of the facts stated therein. Explanation:- For the purposes of this section,- (1) "authorised officer", in relation to a member of the armed forces of the Union, means his commanding officer or head of service, including- (i) in the case of an officer retired from army, the area Commander," 12. From this legal provision, it is clear that the certificate granted under sub-section (1) shall be conclusive evidence of the facts stated therein and the authorised officer in relation to an officer retired from the army is his commanding officer or head of service including the Area Commander. In the present case, the necessary certificate was issued by the Major General, General Officer Commanding, Madhya Pradesh, Bihar and Orissa under whom the present applicant was serving as Brigadier at the time of retirement. 13. Section 79 of the Evidence Act reads as follows:- "79. Presumption as to genuineness of certified copies. The Court shall presume [to be genuine] every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact and which purported to be duly certified by any officer [of the Central Government or of a State Government, or by any officer in the State of Jammu and Kashmir] who is duly authorized thereto by the central Government]: Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. The Court shall also presume that any officer by whom any such document purports to be signed or certified held. when he signed it, the official character which he claims in such paper." 14.
The Court shall also presume that any officer by whom any such document purports to be signed or certified held. when he signed it, the official character which he claims in such paper." 14. From this, it is clear that the Court shall presume to be genuine every document purporting to be a certificate which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer of the central Government who is duly authorised the Central Government. Not only this, section 79 also provides that the Court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in such paper. As the certificate issued under section 13A(1)(2) is declared to be a conclusive evidence, it becomes admissible in law and the commanding officer or head of service including the area Commander is the authorized officer to issue such a certificate. In view of the provisions of section 79, the Court is bound to presume the certificate issued by the area Commander or the commanding officer, to be genuine and the Court is also bound to presume that the officer by whom such document purports to be signed was, in fact, holding that official character when he signed it. The learned Competent Authority rejected the certificate issued by the Major General, General Officer Commanding, Madhya Pradesh in favour of the plaintiff on the ground that no witness was examined to prove the signature on the certificate. According to the Competent Officer, as per the well-established principles of law also the certificate produced on record must be proved by the witness who should identify the signature of a person who had signed it. He observed that inspite of production of certificate, the applicant has failed to examine any witness in this behalf and therefore, that certificate is not proved as per the provisions of law. It appears that the Competent Authority was totally ignorant about the legal provisions contained not only in section 13A1 but also in section 79 of the Indian Evidence Act. To this extent, the observations and findings of the Competent Officer are not correct." (emphasis supplied) 27.
It appears that the Competent Authority was totally ignorant about the legal provisions contained not only in section 13A1 but also in section 79 of the Indian Evidence Act. To this extent, the observations and findings of the Competent Officer are not correct." (emphasis supplied) 27. Section 23(1)(A)(a) of the Act of 1999 stipulates that a landlord who is a member of the Armed Forces of the Union, shall produce a certificate signed by the Authorized Officer to the effect : 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 is situated. 28. The certificate, reproduced herein above, shows the compliance of Section 23(1)(A)(a) and Section 23(2)(1)(iii) of the Act of 1999, as the certificate was signed by the Commanding Officer and it states that the respondent No.3 was a member of Indian Air Force as a Commissioned Officer and does not possess any other premises suitable for residence in the local area where the premises is situated. 29. Thus, in the matter at hand there is a presumption of genuineness of the certificate and in absence of any evidence contrary produced by the petitioners in rebuttal, the argument that the said certificate is based on an affidavit of the respondent No.3 and no independent inquiry was conducted by the officer who issued such certificate, is misconceived and hence, rejected. In the backdrop of the above referred observations, the petitioners cannot derive any support from the judgment of the Division Bench of this court in the case of Sushilabai Vasudeo Jaeel ..vs. M.S.Dhillon, reported in 1979 Mh.L.J. 125. 30. Moreover, it is to be noted that the petitioner never disputed the fact that the respondent No.3 was a member of the Indian Air Force or he does not possess any other premises suitable for residence in the local area where the suit premises is situated. In the circumstances, the submission of the petitioner cannot be accepted that the certificate was mechanically issued. For the reasons recorded herein above, the judgment in the case of Bank of India ..vs.. Allibhoy Mohammed (supra) and Omprakash Berlia (supra) are not applicable to this case and hence, of no help to the petitioners. 31.
In the circumstances, the submission of the petitioner cannot be accepted that the certificate was mechanically issued. For the reasons recorded herein above, the judgment in the case of Bank of India ..vs.. Allibhoy Mohammed (supra) and Omprakash Berlia (supra) are not applicable to this case and hence, of no help to the petitioners. 31. Moving to the next submission, it is argued that the respondent No.3 has failed to establish and prove his ownership as regards the suit house. It is submitted that the burden lies on the respondent No.3 to establish the title. It is submitted that admission of the title by the tenant would not confer the title over the owner but he has to establish it. 32. In this connection, it is to be noted that in the first round of litigation after the order was passed by the Rent Controller, Nagpur, granting permission to the respondent No.3 to terminate the tenancy of the petitioners as per provisions of Clause 13 (3)(i)(ii)(vi) of C.P. & Berar Letting of Houses and Rent Control Order, 1949, the petitioners filed an appeal under Section 21 of Rent Control order 1949. 33. In para 2 of the said appeal, the petitioners pleaded that the appellants are the tenants and the respondent No.3 is the landlord of the premises. In para 3 it is pleaded that the appellants were inducted as tenants in the month of February 1991 on monthly rent of Rs.2,000/- by the respondent No.3. It is further pleaded that since then the appellants have been in actual possession of the tenanted premises, continuously and uninterruptedly. 34. Similarly, in Civil Revision Application No. 708 of 2002, before this Court challenging the order dated 02/05/2002, passed in execution proceedings, it was stated by the petitioners that "The applicants are the tenants, while the non-applicant is the landlord, in respect of residential house, which is in the occupation of the applicants since the year 1991." 35. In Writ Petition No.74 of 2008 filed by the petitioners before this Court, again it was pleaded that "The appellants are the tenants and the second respondent is the landlord of the premises." It was further pleaded that the petitioners were inducted as tenants in the month of February 1991 as monthly tenants on the rent of Rs.2,000/- per month. 36.
36. However, in the second round of litigation, whereunder the respondent No.3 filed an application under Section 23 of the Act of 1999, for eviction of the petitioners, in reply the petitioner first time denied the ownership of respondent No.3 and the fact that the petitioner were inducted as tenants on 15/02/1991. 37. From the above referred facts, it is evident that the petitioners never raised any dispute about the ownership in the first round of litigation, up to this Court. However, only after initiation of the second application under Section 23 of the Act of 1999, the petitioners started denying the ownership of the respondent No.3. 38. The Hon'ble Supreme Court of India in the case of Kamaljeet Singh ..vs.. Sarabjeet Singh, reported in 2014(16) SCC 472 while dealing with the presumption under Section 116 of the Indian Evidence Act, has held thus : "15. There is considerable authority for the proposition both in India as well as in UK that a tenant in possession of the property cannot deny the title of the landlord. But if he wishes to do so he must first surrender the possession of the property back to him. He cannot, while enjoying the benefit conferred upon him by the benefactor, question the latter's title to the property. Section 116 clearly lends itself to that interpretation when it says: "116. Estoppel of tenant and of licensee of person in possession.- No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given." 16. A three-Judge of this Court in Sri Ram Pasricha v. Jagannath reiterated the principle that a tenant in a suit for possession was estopped from questioning the title of the landlord under Section 116 of the Evidence Act. The title of the landlord, declared this Court, even otherwise irrelevant in a suit for eviction of the tenant.
A three-Judge of this Court in Sri Ram Pasricha v. Jagannath reiterated the principle that a tenant in a suit for possession was estopped from questioning the title of the landlord under Section 116 of the Evidence Act. The title of the landlord, declared this Court, even otherwise irrelevant in a suit for eviction of the tenant. The only exception to the rule of estoppel as stated in Section 116 (supra) may be where the tenant is validly attorned to the paramount title-holder of the property or where that the plaintiff landlord had, during the intervening period, lost his title to the property. We are not, however, dealing with a case where the respondent tenant claims that the property is vested in anyone else who could be described as the paramount title-holder or there was any extinction of the title of the appellant on any count whatsoever since the induction of the respondent as a tenant into the premises. We need not, therefore, be detained by any one of those considerations. What is important is that so long as a jural relationship exists between the respondent tenant and the appellant and so long as he has not surrendered the possession of the premises in his occupation, he cannot question the title of the appellant to the property. The inevitable inference flowing from the above proposition would be that (vis-à-vis the respondent) the appellant was and continues to be the owner of the premises in question since the year 1992 when the respondent was inducted as a tenant. Reckoned from the year 1992 the appellant has established his ownership of the premises for a period of five years before the filing of the eviction petition thereby entitling him to invoke the provisions of Section 13-B of the East Punjab Urban Land Restriction Act, 1949. 17. We must before parting remind ourselves that Section 13-B is a beneficial provision intended to provide a speedy remedy to NRIs who return to their native places and need property let out by them for their own requirement or the requirement of those who are living with and economically dependent upon them. Their position cannot, therefore, be worse off than what it would have been if they were not Non-Resident Indians.
Their position cannot, therefore, be worse off than what it would have been if they were not Non-Resident Indians. If ordinarily a landlord cannot be asked to prove his title before getting his tenant evicted on any one of the grounds stipulated for such eviction, we see no reason why he should be asked to do so only because he happens pens to be a Non-Resident Indian. The general principles of the Evidence Act including the doctrine of estoppel enshrined in Section 116 are applicable even to the tenants occupying properties of the Non-Resident Indians referred to in the Act. 18. The upshot of the above discussion is that the courts below fell in manifest error in holding that the appellant landlord was obliged to prove his title to the property, no matter the tenant clearly admits the existence of jural relationship of landlord and tenant between him and the appellant. We have, in the circumstances no hesitation in reversing the view taken by the courts below and in decreeing the eviction petition." (Emphasis supplied) 39. It is thus, a well-settled law that the tenant should not be allowed to launch his landlord in some inequitable situation taking undue advantage of the possession that he got and any probable defect in the title of his landlord. Enjoyment by permission is the foundation of the Rule that a tenant shall not be permitted to dispute the title of his landlord. Once the complete relationship of the landlord and the tenant is established, the Rule of Estoppel comes into operation and prevents the tenants from denying the authority and title which they admitted to rest in the landlord who inducted them into the possession of the property in dispute. He can deny his title after he gives up the possession having thus restored the status quo ante. 40. In the present matter, admittedly, in the first round of litigation, the petitioners never disputed the ownership of the respondent No.3 but, disputed the same first time in the second round. It is imperative to note that there is no denial to the fact that the respondent No.3 inducted the petitioners in the suit premises as tenant and the petitioner No.2 is paying rent to respondent No.3.
It is imperative to note that there is no denial to the fact that the respondent No.3 inducted the petitioners in the suit premises as tenant and the petitioner No.2 is paying rent to respondent No.3. In the circumstances, in the matter at hand, as two requisites are fulfilled i.e. permission and possession, Section 116 of the Indian Evidence Act comes into play estopping the petitioner- tenant from disputing the title of the landlord- respondent No.3. 41. The learned counsel for the petitioners has placed reliance upon the judgment of the Coordinate Bench of this Court in the case of Col. Vijaysinh Ghorpade ..vs.. Namdeo Chavhan, reported in 1995 SCC OnLine Bom. 375 to impress upon this Court that for filing the application under Section 23 of the Act of 1999, two requirements are to be fulfilled by the landlord i.e. (i) relationship of landlord and tenant and (ii) ownership of the premises. 42. The Hon'ble Supreme Court of India in the case of Kamaljit Singh (supra), while reversing the similar view as taken by Coordinate Bench of this Court in the case of Col. Vijaysinh (supra), has observed that the Courts below fell in manifest error in holding that the appellant landlord was obliged to prove his title to the property, no matter the tenant clearly admits the existence of jural relationship of landlord and tenant between him and the appellant. The Hon'ble Supreme Court of India, by observing so, reversed the said view taken by the Courts below while decreeing the eviction petition. 43. In the circumstances, the argument that in the layout map, at the bottom, there is an endorsement that the plot was sold to the father of the respondent No.3, hence, the respondent No.3 is not the owner and the argument that the Mortgage Deed would not create title in favour of the respondent No.3, need to be rejected. 44. Furthermore, in light of the above referred observations, the judgments cited by the learned counsel for the petitioners in the case of Col. Vijay Sinh (supra), Awtar Singh (supra), Union of India ..vs. Vasavi Cooperative Housing Society (supra), LIC ..vs.. Rampal Singh Bisen (supra), Durgashankar..vs. Babubhai (supra) and Sait Tarajee Khimchand (supra) are of no help to the petitioner as they are distinguishable on facts and on the point of law involved in the present matter. 45.
Vijay Sinh (supra), Awtar Singh (supra), Union of India ..vs. Vasavi Cooperative Housing Society (supra), LIC ..vs.. Rampal Singh Bisen (supra), Durgashankar..vs. Babubhai (supra) and Sait Tarajee Khimchand (supra) are of no help to the petitioner as they are distinguishable on facts and on the point of law involved in the present matter. 45. Moving further to examine the argument made by the petitioners that since the respondent No.3 failed to bring on record the legal heirs of the petitioner No.1 after her death, the proceeding got abated, it would be appropriate and relevant for this purpose to refer to Section 7(15)(d) of the Act of 1999, which reads thus: "Section 7(15) "tenant" means any person by whom or on whose account rent is payable for any premises and includes,- (a) such person,- (i) who is a tenant, or (ii) who is a deemed tenant, or (iii) who is a sub-tenant as permitted under a by the permission or consent of the landlord, or contract or (iv) who has derived title under a tenant, or (v) to whom interest in premises has been assigned or transferred as permitted, by virtue of, or under the provisions of, any of the repealed Acts; (b) a person who is deemed to be a tenant under section 25; (c) a person to whom interest in premises has been assigned or transferred as permitted under section 26; (d) in relation to any premises, when the tenant dies, whether the death occurred before or after the commencement of this Act, any member of the tenant's family, who, (i) where they are let for residence, is residing, or (ii) where they are let for education, business, trade or storage, is using the premises for any such purpose, with the tenant at the time of his death, or, in the absence of such member, any heir of the deceased tenant, as may be decided, in the absence of agreement, by the court. Explanation. The provisions of this clause for transmission of tenancy shall not be restricted to the death of the original tenant, but shall apply even on the death of any subsequent tenant, who becomes tenant under these provisions on the death of the last preceding tenant. 46.
Explanation. The provisions of this clause for transmission of tenancy shall not be restricted to the death of the original tenant, but shall apply even on the death of any subsequent tenant, who becomes tenant under these provisions on the death of the last preceding tenant. 46. The definition of the word 'tenant' makes it clear that in relation to any premises when the tenant dies, whether the death occurred before or after the commencement of this Act, any member of the tenant's family where they are let for residence is residing with the tenant at the time of his death, or, in the absence of such member, any heir of the deceased tenant would be treated as a tenant. 47. The Coordinate Bench of this Court had an occasion to consider the said provision in the case of Dharamvir Joshi ..vs.. Jayanta Patwardhan, reported in 2016 (1) All Mr. 140 wherein it is held thus : "14. If the definition of expression 'tenant' as contained in Section 7(15)(d) of the Rent Act and the definition of the same expression as contained in Section 5(11)(c) of the 1947 Act is compared, then, insofar as the material aspects are concerned, there is no material difference. 15. The Apex Court in case of Vasant P. Pandit vs. Dr. Anant T. Sabnis, (1994) 3 SCC 481 , has in terms held that bequeath of tenancy rights under the 1947 Act is impermissible. The relevant discussion is contained in paragraphs 14, 15 and 16, which read thus: 14. From a plain reading of Section 5(11)(c)(i) it is obvious that the legislative prescription is first to give protection to members of the family of the tenant residing with him at the time of his death. The basis for such prescription seems to be that when a tenant is in occupation of premises the tenancy is taken by him not only for his own benefit but also for the benefit of the members of the family residing with him. Therefore, when the tenant dies, protection should be extended to the members of the family who were participants in the benefit of the tenancy and for whose needs as well the tenancy was originally taken by the tenant.
Therefore, when the tenant dies, protection should be extended to the members of the family who were participants in the benefit of the tenancy and for whose needs as well the tenancy was originally taken by the tenant. It is for this avowed object, the legislature has, irrespective of the fact whether such members are 'heirs' in the strict sense of the term or not, given them the first priority to be treated as tenants. It is only when such members of the family are not there, the 'heirs' will be entitled to be treated as tenants as decided, in default of agreement, by the court. In other words, all the heirs are liable to be excluded if any other member of the family was staying with the tenant at the time of his death. ..." (emphasis supplied) 48. In the matter at hand, admittedly, on the date of death of petitioner No.1 or for that matter from the date of induction of the petitioners as tenant in the suit premises, the petitioner No.2 was residing with the petitioner No.1. Therefore, the petitioner No.2 is the tenant after the death of petitioner No.1 and since he was party to the proceeding, the proceeding cannot be held as abated. 49. Moving to the last submission that the Revisional Authority failed to record reasons while dismissing the revision, therefore, the matter needs to be remanded back. I do not find substance in this submission for the reason that on perusal of the impugned order passed by the Revisional Authority, I am of the opinion that the Revisional Authority has recorded the reasons on every aspect, independently, may be not in detail. 50. It is a settled law that the need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge. 51. Even if for a moment, the argument is accepted that the sufficient reasons are not recorded by the Revisional Court, even then I am not agreeable with the submission that for the said reason the matter needs to be remanded back to the Revisional Court. 52.
51. Even if for a moment, the argument is accepted that the sufficient reasons are not recorded by the Revisional Court, even then I am not agreeable with the submission that for the said reason the matter needs to be remanded back to the Revisional Court. 52. It is a settled law that where evidence on record is sufficient the Appellate Court may determine the case finally. It would largely depend upon the nature of dispute, the nature of the extent of evidence that may have to be appreciated, the complexity of the issue that arise for determination and whether the remand is going to result in avoidable prolongation of the litigation between the parties. It is not the healthy practice to remand a case unless it is necessary to do so as it makes the parties to wait for the final decision on a case for the period which is avoidable. Therefore, only in rare situations, a case should be remanded. (As held by the Hon'ble Supreme Court of India in the cases of Mayadevi ..vs.. Rajkumari Batra, reported in (2010) 9 SCC 486 and Zarif Ahmed ..vs.. Mohammad Farooq, reported in (2015) 13 SCC 673 ). 53. Admittedly, the respondent No.3 is litigating the matter from last 33 years after his retirement. Hence, to avoid prolongation, for any reason such mode of remand is not advisable in this case. 54. In the result, as there is no merit in the present writ petition, it deserves to be dismissed and accordingly, it is dismissed. The parties to bear their own costs. 55. At this stage, Shri Agnihotri, learned counsel for the petitioners prays to continue the interim order granted by this Court on 08/08/2023 for another period of six weeks. 56. Shri Deshpande, learned counsel for the respondent No.3 strongly opposes the prayer and submits that the respondent No.3 is litigating the matter from last 33 years. 57. Considering the fact that the stay is operating for a considerable period, I am of the opinion that no prejudice will be caused if it is continued for another four weeks. 58. Accordingly, the interim order dated 08/08/2023 shall continue for another period of four weeks. 59. It is made clear that on expiry of such period, the interim order would stand automatically vacated.