BHAGWAT DUTT RISHIversusRAM KUMAR

                              BHAGWAT DUTT RISHI                                      A
                                     v.
                                 RAM KUMAR

                                 NOVEMBER 8, 1989

                  [RANGANATH MISRA, P.B. SAWANT AND                                   B
                         K. RAMASWAMY, JL]

I            East Punjab Urban Rent Restriction Act, 1949: Ss. 2(hh) &
        13A-Eviction-Public Officer becoming landlord after superannua-
        lion-Whether 'specified landlord'-Whether entitled to eviction.

               Section 13A of the East Punjab Urban Rent Restriction Act, 1949
                                                                                      c
        lays down the procedure for a 'specified landlord' to seek immediate
        recovery of possession of his residential ·building 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, which-              D
        ever is later. Section 2(hb) of the Act defines 'specified landlord' to
        mean a person who is entitled to receive rent in respect Gf a building on
        his own account and who is holding or has held an appointment in a
        pu°blic service or post in connection with the affairs of the Union or of a
        State.
                                                                                      E
              The appellant, who was holding a post in connection with the
        affairs of the State, had retired on September 30, 1981. He was member
        of a Mitakshara family. The house in question was tenanted out to the
        respondent by his father in July 1982 and upon his father dying in the
        following month the tenant attorned to the appellant. The amendment
        came into force with effect from November 16, 1985. The appellant             F
        applied for eviction on May 13, 1986. He sought benefit of the special
        procedure laid down in s. 13A of the Act on the ground that all the
        ingredients of the definition of 'specified landlord' were satisfied. The
        courts below rejected the contention. The High Court relying on the
        ratio laid down by this Court in D.N. Malhotra v. Kartar Singh. [1988]
        1 SCC 656 and·Mrs. Winifred Ross v. Mrs. Ivy Fonseca, [1984] l SCC            G
        288 held that the appellant could not be a 'specified landlord' .
.   -
              Dismissing the appeal by special leave,

             HELD: Until the landlord satisfies the test that he was a landlord
        qua the premises and the tenant at the time of his retirement or dis-         H

                                            93
     94          SUPREME COURT REPORTS                [1989] Supp. 2 S.C.R.

A charge from service, he can not be a 'specified landlord' as defined in
  s. 2(hh) of the East Punjab Urban Rent Restriction Act, 1949. [98F, 94F]

           In the instant case, the appellant was not the landlord of the
     premises in question before he superannuated. He would not, therefore,

B
     be entitled to the benefit of the special procedure laid down iu s. 13A of
     the Act. [99A-B]                                                             I
          D.N. Malhotra v. Kartar Singh, [1988] I SCC 656 and Mrs.
     Winifred Ross v. Mrs. Ivy Fonseca, [1984] 1SCC288, applied.

           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4567
     of 1989.
c
         From the Judgment and Order dated 22.12.1988 of the Punjab &
     Haryana High Court in C.R. No. 1327 of 1987.

           Gopal Subramanium, N.D. Garg and Rajiv K. Garg for the
o Appellant.
         J.K. Nayyar, Rajeev Sharma and S.K. Bisaria for-the Res-
     pondent.

           The Judgment of the Court was delivered by
E
           RANGANATH MISRA, J: Special leave granted.

           The short question for consideration in this appeal at the
     instance of the landlord in a proceeding for eviction under the East
     Punjab Urban Rent Restriction Act is as to whether the appellant
F    before us is a specified landlord as defined in s. 2(hh) of the Act. The
     High Court has decided against the landlord by relying upon the deci-
     sion of this Court in the case of D.N. Malhotra v. Kartar Singh, [ 1988]
     1 SCC 656. When this matter came before a 2-Judge Bench on 16.8. 1988
     the following order was made:

Cl                     "This matter may be listed before a Bench of three
                 Hon'ble Judges two weeks hence for consideration of the
                 question in the light of the decision of this Court in D.N.
                 Malhotra v. Kartar Singh, [1988] 1SCC656."

           Section 2(hh) of the Act defines 'specified landlord' to mean:
H
                 B.D. RISH! v. RAM KUMAR !MISRA, J.]                      95

            "a person who is entitled to receive rent in respect of a
                                                                                A
            building on his own account and who is holding or has held
            an appointment in a public service or post in connection
            with the affairs of the Union or of a State."

      It is not disputed that the appellant was Reader to the Sessions
Judge of Sangrur from where he retired on 30th of September, 1981.              B
He was thus holding a post in connection with affairs of a State. He
was member of a Mitakshara family and the house in question was
tenanted out to the respondent by his father in July, 1982, and upon his
father dying in the following month the tenant attomed to the
appellant.

      Section 13-A of the Act provides:                                         c

            "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              D
            (Amendment) Act, 1985, whichever is later, applies to the
            Controller along with a certificate from the authority com-
            petent 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 posses-         E
            sion 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             F
            usage to the contrary, a right to recover immediately the
            possession of such residential building or scheduled build-
            ing or any part or parts of such buildingif it is let out in part
            or parts: ........... "

      The amendment came into force with effect from 16.11.1985.                G
The appellant applied for eviction on 13.5.1986. Thus, within one year
of the enforcement of the Amending Act of 1985, the application for
eviction was filed following the procedure laid down under the Act.
Appellant's contention which has been rejected in the Courts below
has been that all the ingredients of the definition of 'specified landlord'
are satisfied and he should, therefore, have been admitted to be a              H
    96                                               [1989] Supp. 2 S.C.R.
               SUPREME COURT REPORTS

    specified landlord and given the benefit of the special procedure. The
                                                                                1
A
    High Court relied upon the following observations in Malhotra's case:

                "It has been urged before us on behalf of the respondent at
                                                                                4
                the relevant time i.e. after retirement of the respondent
                from service within one year of the date of commencement
B               of the said Act he is the landlord of the appellant and as
                such he falls within the definition of section 2(hh) of the
                said Act and he becomes a specified landlord. This submis-
                sion, in our view, cannot be sustained inasmuch as the
                words 'specified landlord' as used in section 2(hh) refer to
                the person in service of the Union who is a landlord at the
              · time of his retirement from the public service or post in
c               connection with the affairs of the Union or of State. It
                cannot in any manner include an ex-s\:riceman who was not
                a specified landlord qua the tenant and the premises on or
                before the date of his retirement from the service of the
                Union. This has been very succinctly held by this Court in
D               the case of Mrs. Winifred Ross v. Mrs. Ivy Fonseca, which
                has been referred to hereinbefore."

         Malhotra's case in terms relied upon an earlier decision of this
    Court in Mrs. Winifred Ross v. Mrs. Ivy Fonseca, [1984] 1SCC288 in
    support of its view.
E
          It is not disputed that on the ratio laid down by this Court in the
    two decisions referred to above the High Court had come to the cor-
    rect conclusion that on the facts the appellant could not be a specified
    landlord. It is now for consideration whether the cases of Winifred
    Ross and D.N. Malh.otra, have been correctly decided.
F
         Winifred Ross, case was considering s. 13A of the Bombay
    Rents, Hotel & Lodging Houses Rates Control Act of 1947. Section
    13A had been brought into the Act in 1975. The said section provided:

                "Notwithstanding anything contained in this Act,-
G
                      (a) a landlord who is a member of the armed forces
                of the Union, or who was such member and is duly retired
                (which term shall include premature retirement), shall be
                entitled to recover possession of any premises, on the
                ground that the premises are bona fide required by him for
H               occupation by himself or any member of his family (which
_,
                     B.D. RISH! v. RAM KUMAR /MISRA, J.]                   97

                term shall include a parent or other relation ordinarily
                                                                                 A
                residing with him and dependent on him); and the Court
                shall pass a decree for eviction on such ground if the land-
                lord, at the hearing of the suit produces a certificate signed
                by the Head of his Service or his Commanding Officer to
                the effect that-
                                                                                 B
                      (i) he is presently a member of the armed forces of
                the Union or he was such member and is now a retired
                ex-S'erviceman;

                      (ii)

                      (b)                                                        c
     Dealing with this provision this Court said:

                "The essential requirement Is that he should have leased
                out the building while he was a member of the Armed D
                Forces. His widow can also recover the premises of which
                she is or has become the landlord under clause (b) subject
                to fulfilment of the conditions. Having regard to the object
                and purposes of the Act and in particular Section 13-Al, it
                is difficult to hold that Section 13-A 1 can be availed of by
                an ex-member of the Armed Forces to recover from a E
                tenant possession of a building which he acquires after his
                retirement. Acceptance of this argument will expose the
                very Section 13-A 1 of the Act to a successful challenge on
                the ground of violation of Article 14 of the Constitution for
                it that were so, a retired military officer who has no house
                of his own can purchase any building in the occupation of a F
                tenant after his retirement, successfully evict a tenant living
                in it on the ground that he needs it for his use, then sell it
                for a fancy price and again because he has no house of his
                own, he can again acquire another building and deal with it
                in the same way. There appears to be no restriction on the
                number of times he can do so. It was argued that he would G
                not be able to get the tequisite certificate under the Act
                more than once, A reading of Section 13-A 1 of the Act
                shows that the certificate should show that the person con-
                cerned has been a member of the Armed Forces and that
                he does not possess any other suitable residence in the local
                area where he or members of his family can reside. Those H
    98          SUPREME COURT REPORTS                 [1989] Supp. 2 S.C.R.

                conditions being satisfied the certificate cann9t be refused.
A
                A liberal construction of Section 13-A I of the Act as it is
                being pressed upon us, would also enable unscrupulous
                landlords who cannot get rid of tenants to transfer their
                premises to ex-military men, as it has been done in this
                case in order to avail of the benefit of the said section with
B               a private arrangement between them. It is also possible
                that a person who has retired from the Armed Forces may
                after retirement lease out a premises belonging to him in
                favour of a tenant and then seek his eviction at his will
                under Section 13-A I of the Act .............. "

    A little later in the same decision this Court said:
c
                "Since a liberal interpretation of Section 13-A I 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
D               Forces who were landlords 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
E               worried about the difficulties of a long drawn out litigation
                when they wish to get back the premises which they have
                leased out during their service."

          In Malhotra's case, this Court was called upon to considers. 13A
    of the very Act with which we are now concerned. On the basis of the
F   ratio in Winifred Ross' case, this Court came to the conclusion that
    until the landlord satisfied the test that he was a landlord qua the
    premises and the tenant at the time of his retirement or discharge from
    service, he would not be entitled to the benefit of s. 13A of the Act.

        It is not disputed that the appellant retired on 30th of September,
G 1981. On the finding the appellant is right in his submission that this
  was not a case of transfer with an oblique motive but as the prope~ty
  belonged to a Mitakshara father, upon his death the property has come
  to his hands. This feature which is different from the facts appearing in
  the two reported decisions, however, would not persuade us to give a
  different meaning to the definition ins. 2(hh}. In both the cases, for
H good reason this Court came to the conclusion that the public officer
                B.D. RISH! v. RAM KUMAR [MISRA, l.]                      99

should have been a landlord of the premises in question while in              A
service. Admittedly, the appellant was not the landlord before he
superannuated.

      We are of the view that the opinion of this Court in Winifred
Ross' case is unassailable and, therefore, the appellant would not be
                                                                              B
entitled to the benefit of the special procedure in s. 13A of the Act.

      The appeal fails and is dismissed. Parties are directed to bear
their own costs.

P.S.S.                                                 Appeal dismissed.