Dalip Singh vs M.K Chauhan and Others

Bhawani Singh, J.—This petition arises out of the order dated November 28, 1988 of Rent Controller (I), Shimla. The Petitioner has been ordered to be evicted from the premises in his occupation on the ground of non-payment of arrears of rent; and also on the ground that the land-lord, an army officer, was serving under special conditions and required the premises for the occupation of his family members. The arrears of rent are stated to have been paid within the stipulated period, therefore, the only ground that survives for determination relates to issues No. 1, 3 and 5 as framed by the trial court and the learned Counsel appearing for the Petitioner also concentrates his assault around these issues.

The facts, in brief, are that the Resondent presented a petition under the H.P. Urban Rent Control Act (hereinafter to be referred to as the Act) on the grounds that he is serving in the Army under special conditions and, therefore, required the premises for the occupation of his family members after re-con-struction/renovation and also that the Petitioner was in arrears of rent The Petitioner contested the petition and asserted that the Resondents got into the ownership of the premises collusively with the intention to succeed in getting the premises vacated from the Petitioner and the transfer in favour of the Resondent was not, therefore, bonafide. It was also disputed that the Resondent was serving under such conditions which entitled him to get the benefit of these special provisions u/s 14(3)(iii) of the Act. Regarding the point of arrears of rent, it is contended that the rent of the premises is Rs. 20/- per month inclusive of all taxes which the Petitioner was ready to pay. An objection as to the maintainability of this petition has also been taken but was not pressed before the Rent Controller. The proceedings ultimately resulted in the aforesaid order of eviction of the Petitioner.

Sh. P.K. Sharma, learned Counsel appearing for the Petitioner has contended that the present petition should not have been filed u/s 14, the same should have been filed u/s 14(3)(a)(iii) of the Act There is no substance in this argument. Simply because the main provision of the Act. Section 14 has been used; it does not mean that the petition has not been filed in accordance with law. It is the substance of the application and the substantive provision of law under which the same has been filed which is to be seen. Therefore, there is no substance in this submission of Sh. Sharma. Moreover, such an objection has not been raised before the Rent Controller and it cannot be permitted to be raised for the first time by way of this objection and the same is, therefore, rejected

It is further submitted that the premises against which eviction is sought have not been clearly identified. It is asserted, that there is vagueness on this aspect of the matter. There is no pleading on this aspect nor could there by any as there is no dispute on this aspect of the case. The Resondent is clear; the Petitioner is clear and so also the court which has passed the impugned order. The relevant documents produced on this aspect by the Resondent make things absolutely clear and beyond the pale of controversy. The only doubt entertained by the Petitioner appears to be as to the owner/landlord of the property '' and his assertion is that the property had been in the ownership of Kanwar Madan Singh and he was ready to pay the rent whoso-ever happens to be the owner of the same.

It is further contended by Sh. P.K. Sharma that the Resondent was neither serving under special conditions at the time of the presentation of the petition nor at this stage to enable him to seek the benefit of the special provisions in favour of such an army personnel under the Act and the certificate (Ex.P. E) issued u/s 3 of the Indian Soldiers (Litigation) Act, 1925, cannot be relied upon being only a photo copy of the original. Shri Bhupinder Singh, who appears for the Resondent, has submitted that the original copy of the certificate (Ex. P-E) was filed before the Court and after perusal of the same and on the direction of the Court, the photo copy thereof was submitted. It is further contended that certificate, in question, is conclusive evidence as to the service conditions of the Resondent. A reference to 1969 (IV) R.C.J. 373, Raj Kumar v. Major Gurmitinder Singh has been made. It is relevant to quote para 7 of this judgment :

The next argument of the learned Counsel was that the certificate. Exhibit P-1, of the Commanding Officer produced by the Resondent was not in order and, consequently, the landlord" could not take advantage of the provisions of law by which the Act had been amended in 1966 to provide for accommodation for the families, of the members of the armed forces of the Union of India. By virtue of the amendment made in the Act by the East Punjab Urban Rent Restriction Amendment Act, 1966, the following sub-paragraph was inserted after sub-paragraph (i) of Paragraph (a) in Sub-section (3) of Section 13 of the Act:

(i-a) In the case of a residential building if the landlord is a member of the armed forces of the Union of India and requires it for the Occupation of his family and if he produces a certificate of the prescribed authority, referred to in Section 7 of the Indian Soldiers (Litigation) Act 1925, that he is serving under special conditions within the meaning of Section 3 of that Act.

Explanation - For the purposes of this sub-paragraph;

(1) the certificate of the prescribed authority shall he conclusive evidence that the landlord is serving under special conditions; and

(2) "Family" means such relations of the landlord as order nearly live with him and are dependent upon him.

From a reading of this newly in served provision, it would be clear that if the landlord was a member of the armed forces of the Union of India and required the residential building belonging to him for the occupation of his family, then he could get the same vacated, if he produced a certificate of the prescribed authority referred to in Section 7 of the Indian Soldiers (Litigation) Act, 1925, that he was serving under special conditions within the meaning of Section 3 of that Act. It was further made clear in the Act that the Certificate of the prescribed authority would be conclusive evidence that the landlord was serving under special conditions. In the present case, it was not disputed that the Resondent was a member of the armed forces of the Union of India. It was also conceded that the Resondent''s wife would be covered by the word family occurring in this newly inserted sub-paragraph, because the explanation thereto had defined the word as meaning "such relations of the landlord as ordinarily live with him and are dependent upon him." The only argument raised by the learned Counsel was that the certificate, Exhibit P-1, did not fulfill the conditions laid down in the sub-paragraph, inasmuch as it had to state that the Resondent was serving under special conditions within the meaning of Section 3 of the Indian Soldiers (Litigation) Act, 1925, and the certificate in the present case merely said that the Resondent was serving under war conditions. Exhibit P-l, which is signed by the Officer Commanding, runs thus:

"Certificate

(Under Indian Soldiers Litigation Act, 1925).

Certified that IC-14796 Major Gurmeet Inder Singh Grewal s/o Shri Devinder Singh Grewal is - serving in the 5th Bn. Brigade of the Guards under War conditions.

It is to be seen whether from this certificate it could be said that the Resondent was serving under special conditions within the meaning of Section 3 of the Indian Soldier''s (Litigation) Act, 1925. The said section reads as under :

For the purposes of this Act, an Indian Soldier shall be deemed to be or as the case may be, to have been serving

(a) under special conditions when he is or has been serving under war conditions, or overseas or at any place beyond India.

(b) under war conditions when he is or has been at any time during the continuance of any hostilities declared by the Central Government by notification in the Official Gazette to constitute a state of war for the purposes of this Act or at any time during a period of six months thereafter:

(i) serving out of India,

(ii) under order to proceed on field service,

(iii) Serving with any unit which is for the time being mobilised, or

(iv) serving under conditions which, in the opinion of the prescribed authority, preclude him from obtaining leave of absence to enable him to attend a Court as a party to any proceeding, or when he is or has been at any other time serving under conditions service under which has been declared by the Central Government by notification in the Official Gazette to be service under war conditions and.

According to this section, an Indian soldier would be deemed to have been serving under special conditions when he was or had been serving under war conditions. Exhibit P-1 says that the Resondent was serving under war conditions. Consequently, he would be deemed to be serving under special conditions, It was contended by the learned Counsel for the Petitioner that there were no war condition in India at the time when the certificate was issued, inasmuch as there was no declaration of war by the Central Government published in the Gazette and he referred to the provisions of Clause (b) of Section 3 in that behalf. This argument ignores the explanation added to the sub-paragraph in Section 13 of the Act, which land down that the certificate of the prescribed authority would be conclusive evidence that the landlord was serving under special conditions. It was not suggested that the certificate in the instant case was not issued by the prescribed authority or was not genuine one. That being so, they said certificate had to be taken as conclusive evidence of the fact that the Resondent was serving under special conditions. This argument also, the reform, fails."

With reference to the present case, it is pertinent to reproduce the certificate (Ex. P-E) as well:

"Certificate

[Authority. The Indian Soldier (Litigation) Rules, 1938, Rule 3].

(1) Under the provisions of the Indian Soldiers (Litigation) Act, 1925 (Act No. IV of 1925), it is certified that IC-26599W Lieutenant Colonel Mohan Krishan Chauhan Son of Late Sh. S.D. Chauhan of District Shimla, Himachal Pradesh is

(a) The Commanding Officer of 122 Infantry Battalion (TA);

(b) Serving under special conditions as prescribed in Clauses (a) and (b) of Section 3 of the said Act, i.e. the Indian Soldiers (Litigation) Act, 1925 (Act No. IV of 1925) Authority Army Headquarters. Signal No. 3474531/TA 2 dated 30 Oct., 1987. (Contents of letters not to be disclosed due to security reasons).

(c) Under the provisions of Sub-clause (iv) of Clause (b) of Section 3 of the above mentioned act due to exigencies of service is allowed to be represented by a personal duly authorised by him in the court case concerning his residence, Theog House, located in Khasra Number 262/2 in Mauza Sanjauli of District Shimla, Himachal Pradesh.

It is also certified that:

(a) The officer has completed 20 years of nuhimumpen-sioaabte service period.

(b) in the eventuality of proceeding on pension prematurely as seated by the officer wishes to settle at Shimla and expressed desire to renovate the House for his personal residential purpose at the earliest possible.

(c) He has an old ailing mother, who is under treatment and stays with him.

It is also certified that the above facts are true to the best of my knowledge as has been ascertained from the various records available about the officer and also from there personal statements, of the Officer in my presence.

No. Sd/-

Station Cannanore(U. Damodaran)

Dated: 14 Nov. 87 Colonel, Station Commander

Dated: 14 Nov. 87 Carmanore

It can, therefore, be said that in the absence of any evidence to the contrary having been placed on the record by the Petitioner, it is clear that the Resondent is working in the Army under special conditions as prescribed under clauses (a) and (b) of Section 3 of the Indian Soldiers (Litigation) Act, 1925 and is therefore entitled to the benefit of the provisions of Section 14(3)(iii) of the H.P. Urban Rent Control Act and the plea of the learned counsel for the Petitioner, therefore, is devoid of any merit.

Adverting to the second aspect of this issue, it is in evidence that the Resondent requires the premises for the occupation of his family after its renovation/re-Constructions the building is stated to be very old. It is in evidence that the Municipal Corporation, Shimla, has vide communication dated 1-7-1988 (Ex. P-F) accorded permission to the Resondent for the repairs ox the house at Engine Ghar, Sanjauli. It is in evidence that whenever the Resondent comes to Shimla he stays with his father-in-law and the house in question requires extensive repair being about hundred years old. The'' Petitioner (R. W1) admitted in his statement that he came to know about the owner-ship of the Resondent when he received a notice. He further states that Kan war Madan Singh who used to receive the rent from him stopped receiving the same since January, 1987. He was prepared to pay the rent and that the building is all right and worth living. No wherein his statement the Petitioner has challenged either the maintainability of the petition or the genuine-ness'' of the certificate (Ex. P.E) or the bonafide requirement of the Resondent. He has also not stated about the collusive, deliberate and mala fide transfer of the premises as asserted in the reply The result, therefore, is that the Resondent has succeeded in establishing that he is the landlord serving in the Indian Army under special conditions as certified and it is also proved that the premises in question are needed by him for the occupation of his family after making repairs/renovation and there is no lack of bonafide in the transfer of this property in his favour by his father-in-law as a similar transfer by gift has been made in the name of Professor V. V: S. Dogra and Mrs, Shakuntala Dogra as well. The learned Rent Controller (I), Shimla has very exhaustively dealt with every aspect of this case and I uphold his conclusions, findings and order.,

The result, therefore, is that there is no merit in this petition and the same is accordingly dismissed leaving the parties to bear their own cost.