Dinkar Vishwanath Panse vs Jayant Vasant Joglekar

A.V. Savant, J.—This is a Revision Application filed under Sub-section (2) of Section 31F of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short, the "Bombay Rent Act") seeking to challenge the order dated 5th August, 1989 passed by the Competent Authority, Pune Division, Pune, in proceedings u/s 13A1 of the said Bombay Rent Act. This Revision Application raises the question as to the scope of the powers of this Court in a revision under Sub-section (2) of Section 31F of the Bombay Rent Act. Section 13A1 incorporates a special procedure in favour of the members of the Armed Forces of the Union, scientists and their successors-in-interest who are entitled to recover possession of the premises bona fide required for their occupation or for occupation by any member of their family. The premises are a two room tenement in the House belonging to the Respondent situate at 48/2, Paud Road, Erandwane, Pune. The respondent, admittedly, is now serving as a Lt. Colonel in the Indian Army. He had applied to the Housing Society for purchase of the plot and the structure which stood in the name of the previous owner Smt. Damle. On 28th April 1985 the Society passed Resolution No. 8 recording the fact that Smt. Damle had desired to transfer the said plot along with the structure and it was decided to permit the respondent to take over the said plot and the structure. Accordingly, on the 5th March, 1986 the respondent purchased the said plot and the structure from Smt. Damle. Admittedly, the petitioner is the tenant in the suit premises from 1974 or thereabout.

The case of the respondent is simple. He says that he is a Member of the Armed Forces of the Union. He is posted at different places having regard to the exigencies of his service. The parents and brothers of the respondent are settled in Pune. His wife belonged to Pune and her parents are also settled in Pune. Having regard to the frequent transfers of Army Officers, the respondent thought it desirable to keep his family in Pune basically for the purpose of education of his children. He has a daughter born on 3rd March, 1976 and a son born on 2nd March, 1981. He gave notice to the petitioner on 29th August, 1988 pointing out his difficulties and sought possession of the premises on terminating the tenancy with effect from 1st September, 1988. On the petitioner''s failure to comply with the said notice, the application has been filed on 8th March, 1989. He was holding the rank of a Major at that time.

The petitioner opposed the application and contended that the respondent was not entitled to apply for possession of the suit premises under the said provisions of Section 13A1. The petitioner denied the respondent''s contention that he wanted to keep his family in Pune. The petitioner also questioned the bona fides of the respondent and pointed out that the respondent had other premises available in Pune and referred to the bungalow named ''Vasant Prabha'' in the Sankalp Co-operative Housing Society, Pune, which in fact belongs to the respondent''s brother Arvind, who is also an Army Officer. In short, the petitioner denied the claim of the respondent on all counts.

At the trial, the respondent examined himself and stated categorically that he and his wife both belonged to Pune. The respondent further stated that his parents and two brothers were also settled in Pune and they had their separate residences. The respondent contended that for some time in the past he was posted at a non-family station. The respondent made it clear that he had purchased the property at Pune with the sole intention of keeping his children at Pune for the purpose of their education. He also referred to the desirability of avoiding frequent changes in the residence of the children affecting the factor of their domicile which is relevant in educational matters. He referred to the fact that his wife''s parents were also settled in Pune and hence, he bona fide required the premises for the residence of his children and wife at Pune. He referred to the fact that he had tried to book a Flat through the Army Housing Welfare Organisation in Pune in 1979. But on account of certain financial difficulties he had to subsequently cancel his membership and got a refund of the amount of about Rs. 14,000/- which he had paid to the said organisation towards the instalment of the price of a flat at a somewhat remote place at Kondhwa.

The petitioner examined himself pointing out that when the respondent purchased the property from Smt. Damle, he had desired to add a floor over the structure and that there was no bona fide requirement of the suit premises by the respondent. The petitioner also deposed that the fact that the respondent had booked a Flat through the Army Housing Welfare Organisation and had withdrawn his membership affected the respondent''s bona fides. The petitioner deposed that the respondent was comfortably housed in ''Vasant Prabha'' in the Sankalp Co-operative Housing Society at Paud Road and hence, there was no pressing need for the respondent to apply for possession of the premises in dispute. The petitioner also examined Shri Shankar Parshuram Vaishampayan at Exh. 36, who is the Secretary of the Society where the suit property is situated to bring on record the fact that the respondent has included the name of his brother Arun as a joint member along with him in respect of the suit property.

In the light of the above position the Competent Authority framed the necessary issues arising out of the pleadings and answered the issues in favour of the respondent. It has been held that:

(i) the Competent Authority had the necessary jurisdiction to entertain the application;

(ii) the respondent did require the premises bona fide for the residence of the members of his family and eventually for his own residence after retirement;

(iii) that the respondent had produced a valid and legal certificate in accordance with the provisions of Section 13A1(1)(A)(a) to the effect that he was a member of the Armed Forces of the Union and that he did not possess any other premises suitable for residence in, the local area where the premises were situate.

In view of the above findings, the Competent Authority came to the conclusion that the respondent was entitled to obtain the possession of the premises in dispute. The application of the respondent was accordingly granted on 5th August, 1989. It is the correctness of this order which is being challenged before me in this revision under Sub-section (2) of Section 31F of the Bombay Rent Act.

I have heard both the learned Counsel at some length viz. Shri Shivade for the petitioner tenant and Shri Lonkar for the respondent landlord. Shri Shivade for the petitioner, has contended that it was true that the Supreme Court in the case of Shivram Anand Shiroor Vs. Radhabai Shantram Kowshik and Another, has referred to the object behind the enactment of Section 13A1 of the Rent Act which contained a special provision in favour of the members of the Armed Forces of the Union. But nevertheless, the question of bona fides of the landlord would always be a question of fact depending upon the evidence on record in a given case. He contended that it was true that Sub-section (2) of Section 13A1 made the certificate granted u/s 13A1(1)(A)(a) conclusive evidence of the facts stated therein, viz.

(i) that the applicant was a member of the Armed Forces; and

(ii) that he did not possess any other premises suitable for residence in the local area where the premises were situate.

But nevertheless, he contends, that the question of bona fides has to be gone into. He also invited my attention to a decision of this Court in the case of Tukaram Dhondopant Bhure v. Lt Colonel Vijaysinh Gopalrao 1989 M.R.C.J. 628 on the question of the necessity of the Competent Authority to independently apply its mind to the question of bona fide requirement despite the production of the certificate by the landlord. He also invited my attention to another decision of this Court in the case of Ram Sadashiu Shinde v. Khanderao Chintaman Panse 1990 M.L.J. 421, in support of the said contention. Secondly, Shri Shivade contended that the conduct of the respondent shows total lack of bona fides inasmuch, in the first place, he had applied for a Flat at Kondhwa through the Army Housing Welfare Organisation in the year 1979 and had even contributed a very small sum before he purchased the suit property on 5th March, 1986. According to Shri Shivade, the withdrawal of his membership by the respondent in 1987 was not bona fide and reflects on the claim of the respondent in the present proceedings. The respondent having withdrawn his membership of the society floated by the Army Housing Welfare Organisation, at Kondhwa, was not eligible to claim the benefit of the provisions of Section 13A1 of the Bombay Rent Act. Thirdly, Shri Shivade contended that the respondent was comfortably housed in ''Vasant Prabha'', a bungalow in the Sankalp Cooperative Housing Society, which as stated earlier, belonged not to the respondent but to his brother Arvind, who is himself a Colonel in the Army. According to the petitioner, the fact that the respondent was occasionally staying at ''Vasant Prabha'' and had put his name-plate outside the bungalow ''Vasant Prabha'' showed that he had a right to occupy the said bungalow ''Vasant Prabha'' and hence, he was not at all in need of the premises, much less of there being any bona fide need of the suit premises on the part of the respondent or the respondent''s family. He next contended that the inclusion of the name of Arun, the brother of the respondent, as a joint member in the records of the Society in respect of the premises in dispute, clearly negatives the respondent''s claim and at any rate the respondent was, therefore, not eligible to apply u/s 13A1 of the Rent Act. He also contended that in the suit property there were three tenements of two rooms each; one tenement held by the present petitioner, another held by Shri Bhalerao, who is the petitioner in C.R.A. No. 807 of 1989 which is the companion C.R.A., and the third tenement held by one Shri Trivedi. These three tenements constitute the suit property at Paud Road. It must be stated that the total area of all the three tenements put together is just around 700 sq. ft. Under the impugned order, the claim of the respondent has been allowed in full in respect of all the three tenements. Whereas the petitioner and Bhalerao, who is the petitioner in C.R.A. No. 807 of 1989, have approached this Court, Trivedi has submitted to the impugned order and has handed over possession of the two rooms of 10'' � 10'' each. Shri Shivade, therefore, contends that the need, if any, of the children of the respondent must be deemed to have been satisfied. Lastly, he contended that the present proceedings were initiated on the 8th March, 1989, but on the 23rd June, 1989 the respondent had issued a notice to the petitioner pointing out the fact that the Pune Municipal Corporation had called upon him to forthwith repair the premises in accordance with the provisions of Section 264(1) of the Bombay Provincial Municipal Corporation Act, 1949, and that the respondent had therefore, called upon the petitioner to vacate the premises which were required for the purpose of repairing and reconstructing the dilapidated portion of the building. The respondent had promised to restore the premises back to the petitioner, subject to his paying the increased rent in accordance with the provisions of the Bombay Rent Act. Shri Shivade contended that issuance of such a notice during the pendency of the proceedings amounts to waiver and hence, the present proceedings were not tenable in law.

As against this, Shri Lonkar, the learned Counsel appearing on behalf of the respondent contends that, in the first place this is a revision under Sub-section (2) on Section 31F of the Bombay Rent Act and the scope of such a revision would be extremely limited. He contended that it was not open to this Court to re-appreciate the evidence and interfere merely because this Court may think that possibly the Judge who heard the case may have arrived at a conclusion which this Court would not have arrived at. He further contends that there is no error of law pointed out which has resulted in miscarriage of justice, nor is there any grievance made that the trial was not proper or was not in accordance with law. He also emphasised the fact that Sub-section (1) of Section 31F bars an Appeal. In short, the contention of Shri Lonkar is that jurisdiction of this Court in revision under Sub-section (2) of Section 31F of the Bombay Rent Act was extremely limited. To say that there has been no miscarriage of justice and that the trial was in accordance with law. It will be evident from the above that, in the first place, an Appeal is barred by virtue of Sub-section (1) of Section 31F. The result is that no Appeal can lie against the order for recovery of possession of any premises made by the Competent Authority in the facts of the present case. It is true that Sub-section (2) of Section 31F enables this Court to call for the records of the case for satisfying itself that an order made in any case by the Competent Authority is "according to law". Shri Lonkar contended that in the scheme of the provisions of Section 31F the jurisdiction of this Court under Sub-section (2) of Section 31F is extremely limited. He invited my attention to a decision of this Court rendered by Beaumont, C.J., in the case of Bell and Co. Ltd. v. Waman Hemraj 40 B.L.R. 125. That was a revision u/s 25 of the Provincial Small Cause Courts Act, 1887, where the wording of the relevant Section 25 is similar to the wording of the present Sub-section (2) of Section 31F. Shri Lonkar further invited my attention to a decision of the Supreme Court in the case of Hari Shankar and Ors. v. Rao Girdhari Lal Chowdhury AIR 1963 SC 698. This was a case of a revision u/s 35 of the Delhi and Ajmer Rent Control Act, 1952 and the question which fell for consideration of the Supreme Court was as to the scope of the powers of interference in a revision u/s 35 of the said Delhi Act. Shri Lonkar placed strong reliance on the observations of the Supreme Court in Paras 8, 9 and 10 of the said Supreme Court decision appearing at page 701 of the Report. It may be mentioned here that the Supreme Court has expressed its full concurrence with the observations of Beaumont, C.J., in the Bell and Co. is case, 40 Bom. L.R. 125.

As to the question of jurisdiction u/s 3F(2), Shri Shivade did try to rely upon the observations of Sugla, J. in C.R.A.. No. 189 of 1989 decided on December 5, 1989, where pursuant to the directions of the Supreme Court remanding the matter to the High Court, this Court considered the question of bona fide requirement and held in favour of the landlord. However, in fairness to the learned Single Judge, it must be stated that the attention of the learned Single Judge (Sugla, J.) was neither invited to the decision of Beaumont, C.J. reported in 40 Bom. L.R. 125 nor to the decision of the Supreme Court in Hari Shankar''s case AIR 1963 SC 698.

Without prejudice to the above contention as to the limited scope of powers of Revision, Shri Lonkar further contended that Section 13A1 contains a special provision in favour of a member of the Armed Forces. He relies on the very Judgment on which Shri Shivade sought to rely viz. in Shivram Anand Shiroor Vs. Radhabai Shantram Kowshik and Another, to suggest that despite the general bias in favour of a tenant under the scheme of the said Bombay Rent Act, as far as the scheme of Section 13A1 is concerned, the intention has been expressed by the legislative in clear terms and having regard to the statement of objects and reasons of the amending enactment, as observed by the Supreme Court, the cases of the defence services personnel, due to their social obligations and disability, do need a different treatment than that accorded to other landlords and hence, the special provision has to be considered accordingly. On the question of bona fides, Shri Lonkar contends that, in the first place, the bungalow ''Vasant-Prabha'' does not belong to the respondent, but admittedly it belongs to his brother Arvind who is himself a highly placed Army Officer having his own family. It is because the respondent does not have any other permanent place of residence in Pune that he, at times, temporarily resides with his brother Arvind at ''Vasant-Prabha'' in the Sankalp Co-operative Housing Society. However, the respondent is purely at the mercy of his brother Arvind and has no right whatsoever to continue to occupy and keep his children in ''Vasant-Prabha''. He further contends that the name of Arun was undoubtedly entered as a joint member, but the proceedings of the Society would show that as far as the nominee in respect of the suit property is concerned, the respondent has entered his wife''s name as a nominee and that too, under a document to which Arun himself is a witness. It was only for the sake of convenience, having regard to the respondent''s position as an Army Officer, that Arun''s name was entered as a joint member. It is nobody''s case that Arun had paid any part of the consideration paid to Smt. Damle for purchase of the suit property and admittedly, the entire consideration has been paid by the respondent. Arun, therefore, has no proprietary right whatsoever and the respondent alone is the owner of the house in dispute. The inclusion of the name of Arun, therefore, no way affects the competence of the respondent to initiate the proceedings u/s 13A1 of the Bombay Rent Act. Shri Lonkar further contends that, it may be that, he may not have been posted at Pune so far, but that is a factor which is beyond his control, he being an Army Officer. But he contends that the suitability of the city of Pune for the purpose of education of his children having regard to the fact that the parents of both the spouses come from Pune and their relatives are settled in Pune cannot at all be doubted. Regarding the withdrawal of the membership of the Kondhwa Society sponsored by the Army Housing Welfare Organisation he contends that it was not financially viable for the respondent to pay the amount demanded towards the price of the Flat and, therefore, he preferred to withdraw the small contribution of Rs. 14,000/- made by him. Shri Lonkar has invited my attention to a decision of the Supreme Court in the case of Yudhister v. Ashok Kumar 1987 2 All I.R.C.J. 238 and contended that the mere fact that the landlord held some other premises as an owner and had disposed them of initiating proceedings for eviction on the ground of bona fide requirement was not fatal to the case of the landlord. He invited my attention to certain observations of the Supreme Court in Para 14 of the said Judgment at page 245 of the Report to the effect that in suggesting any limitation on the right of the landlord to dispose of his Flat, the Act may expose itself to the vice of unconstitutionality. He also invited my attention to a decision of this Court in the case of Shri Subodh Chandra Chakravorty v. Smt. Kailash Kumari and another 1987 M.R.C.J. 81, which was a case u/s 13A1 of the Bombay Rent Act. Pointing out the distinction between the approach to a. ease falling u/s 13(1)(g) of the Bombay Rent Act and the one falling u/s 13A1, this Court held that if a member of the Armed Forces says that he wanted to keep a member of his family at a particular place like, for instance, Bombay, in view of his frequent transfers and if there was nothing to doubt such assertion, it would be difficult for the Court to doubt such a natural claim and say that the claim is not bona fide. My attention was also invited to another decision of this Court in the case of Colonel Mohan N. Gurubaxani v. New Standard Engineering Co. Ltd. 1991 M.R.C.J. 506, where in a Petition u/s 13A1 of the Bombay Rent Act, it was observed that if the petitioner has made out a case for possession of the premises in Bombay where his wife and children wanted to stay for education of the children, it was difficult to find fault with the attitude of an Army Officer who wanted to provide accommodation to his wife and children for the purpose of their education in Bombay.

Shri Lonkar then contended that the Notice given by the respondent to the petitioner on the 23rd June, 1989 calling upon the petitioner to vacate the premises to enable the respondent to carry out the repairs in the dilapidated portion was given pursuant to Notice No. 955 dated 13th June, 1989 issued, by the Pune Municipal Corporation, which notice was served on the respondent on the 19th June, 1989. The respondent, therefore, contended that it was in accordance with the provisions of Sub-section (3)(a) of the amended Section 9 of the Bombay Rent Act that he had claimed the increase in the Rent on account of improvements and/or special additions that were to be effected in the premises. This would therefore not affect the bona fides of the respondent. Shri Lonkar further contended that it was true that the two rooms in the possession of Trivedi were surrendered to the respondent last year during the pendency of this petition. However, the said two rooms would not be sufficient to meet the requirements of the petitioner''s family. It cannot be forgotten that the respondent today is holding the rank of a Lt. Colonel in the Army and the two rooms admeasuring 10'' � 10'' each, would be hardly sufficient even for the limited purpose of accommodating his two children at Pune for the purpose of education.

Having heard the Counsel for the parties and perused the entire material on record, 1 find no substance in any of the contentions raised by Shri Shivade. On the other hand, I am inclined to accept the contentions raised by Shri Lonkar. My reasons are as follows:

In the first place, on the question of jurisdiction there is great substance in the contention raised by Shri Lonkar regarding the scope of the powers of this Court in a revision under Sub-section (2) of Section 31F of the Rent Act. Since arguments have been advanced in details on this point, I propose to decide this issue. Section 31F of the Bombay Rent Act reads as under:

31F. (1) No appeal shall lie against an order for the recovery of possession of any premises made by the Competent Authority in accordance with the procedure specified in Section 31E.

(2) The High Court may, at any time suo motu or on the application of any person aggrieved, for the purpose of satisfying itself that an order made in any case by the Competent Authority u/s 31E is according to law, call for the record of that case and pass such order in respect thereto as it thinks fit:

Provided that, no powers of revision at the instance of person aggrieved shall be exercised unless an application is presented within ninety days of the date of the order sought to be revised.

Shri Lonkar has invited my attention to the provisions of Section 25 of the Provincial Small Cause Courts Act, 1887. Section 25 of the said 1887 Act reads as under:

The High Court for the purpose of satisfying itself that a decree or order made in any case decided by a Court of Small Causes was according to law. may call for the case and pass such order with respect thereto as it thinks fit. (Emphasis supplied)

Dealing with the scope of the powers of this Court in a revision u/s 25 of the Provincial Small Cause Courts Act, 1887, Beaumont, C.J., in 40 Bom. L.R. 125 (supra) observed in Bell and Co.''s case as under:

In my opinion that section ought not to be construed as giving the parties a right of appeal on points of law. The object of Section 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law. The section does not enumerate the cases in which the Court may interfere in revision, as does Section 115 of the Civil Procedure Code, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at.

(Emphasis supplied)

What is important is the fact that the Supreme Court also had occasion to consider the scope of the powers of the High Court u/s 35(1) of the Delhi and Ajmer Rent Control Act, 1952 in Hari Shankar''s case AIR 1963 SC 698. Section 35(1) of the said Delhi Act of 1952 reads as under:

The High Court may, at any time, call for the record of any case under this Act for the purpose of satisfying itself that a decision made therein is according to law and may pass such order in relation thereto as it thinks fit.

(Emphasis supplied)

Dealing with this phrase ''according to law'', the Supreme Court observed thus in Para 8 of its Judgment at page 701 of the Report:

(8) The phrase "according to law" refers to the decision as a whole, and is not to be equated to error of law or of fact simpliciter. It refers to the overall decision, which must be according to law which it would not be, if there is a miscarriage of justice due to a mistake of law. The section is thus framed to confer larger powers than the power to correct error of jurisdiction to which Section 115 is limited. But it must not be overlooked that the section in spite of its apparent width of language where it confers a power on the High Court to pass such order as the High Court might think fit, is controlled by the opening words, where it says that the High Court may send for the record of the case to satisfy itself that the decision is "according to law". It stands to reason that if it was considered necessary that there should be a rehearing, a right of appeal would be a more appropriate remedy, but the Act says that there is to be no further appeal

(Emphasis supplied).

In Para 9 of the Judgment, the Supreme Court dealt with the Judgment of Beaumont, C.J., in 40 Bom. L.R. 125 and after quoting a passage from the Judgment of Beaumont, C.J., the Supreme Court observed as under :

This observation has our full concurrence.

Thereafter, in Para 10 of the Judgment, the Supreme Court observed as under:

(10) What the learned Chief Justice has said applies to Section 35 of the Act, with which we are concerned. Judged from this point of view, the learned Single Judge was not justified in interfering with a plain finding of fact and more so, because he himself proceeded on a wrong assumption.

It is no doubt true, as contended by Shri Shivade, the Sugla, J., had an occasion to consider this question in C.R.A. No. 189/89, decided on 5th December, 1989. It must be stated in fairness to the learned Judge that his attention was not invited to either the decision of this Court of Beaumont, C.J., in 40 Bom. L.R. 125, or to the decision of the Supreme Court in Hart Shankar''s case AIR 1963 SC 698 (supra). Secondly, the learned Judge was dealing with a matter remanded by the Supreme Court. In the light of the decision of the Supreme Court in Shivram Anand Shiroor''s case, Sugla, J., was dealing with a matter where the Supreme Court has observed as under:

Heard Counsel. Special leave is granted. The matter, in my opinion, is covered by the decision of this Court in Shivram Anand Shiroor Vs. Radhabai Shantram Kowshik and Another, . It is, therefore, not necessary to keep the matter pending any longer. I allow the appeal. In reversal of the order of the High Court dated 3.5.1989 (sic) the matter stands remitted to the High Court for disposal in accordance with law, and on the merits, in particular on the question of bona fide requirement of the landlord. The appeal is disposed of accordingly.

It was in this peculiar background that Sugla, J., has observed that it was not possible to accept the contention that the limitation to the Court''s jurisdiction u/s 115 of the CPC has any bearing on the question of jurisdiction u/s 31F of the Rent Act. The learned Judge further observed as under:

Moreover, as pointed out by the learned Counsel, this Court in the present proceeding is exercising jurisdiction under a remand order. The Supreme Court''s Judgment is clear. This Court has been specifically directed to consider the question of bona fide requirement of the landlord. Assuming that there is any merit in the contention of Shri Dalvi, it is not possible for this Court to refuse to decide the question of bona fide requirement of the landlord.

With respect, I do not think that the ratio of the decision delivered by Sugla, J., can apply to the facts of the present case. Relying upon the observations of Beaumont, C.J., in Bell and Co.s case and the clear enunciation of law laid down by the Supreme Court in Hari Shankar''s case AIR 1963 SC 698, I do not think that I would be justified in re-appreciating the entire evidence on record and holding that merely because I thought that possibly the Competent Authority who heard the case, may have arrived at the conclusion which I would not have arrived, my interference would be justified. Having regard to the limitations on the revisional jurisdiction as indicated by Beaumont, C.J., in Bell and Co.''s case and by the Supreme Court in Hari Shankar''s case, in my view no case is made out whatsoever for exercising the powers of revision so as to disturb the finding of fact arrived at by the Competent Authority in the present case. I am, therefore, of the view that there is no merit in the contention of Shri Shivade in this behalf and the objection raised by Shri Lonkar as to the limited scope of jurisdiction of this Court in a revision under Sub-section (2) of Section 31F must be upheld.

Bearing in mind the above limitation and the powers of this Court in a revision application u/s 31F(2) of the Bombay Rent Act, let me consider the contentions of the rival parties on merits. In the first place, I must refer to the decision of the Supreme Court in Shivram Anand Shiroor''s case. The Supreme Court has in Para 3 of the Judgment, at page 789, of Shivram Anand Shiroor Vs. Radhabai Shantram Kowshik and Another, reproduced the statement of objects and reasons of the Amending Act which reads as under:

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.

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 provisions 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.

(Emphasis supplied)

The Supreme Court has observed in the said Para 3 as under:

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.

(Emphasis supplied)

It is, thus, clear that this is a special provision in favour of the landlord, who is a member of the Armed Forces of the Union and it makes a clear departure from the rest of the scheme of the Rent Act, which is undoubtedly a welfare legislation meant to protect the tenants from harassment and illegal eviction by landlords. However, the scheme of Section 13A1 makes a significant departure from the scheme of Section 13(1)(g) of the Bombay Rent Act. Sub-section (2) of Section 13A1 provides that any certificate granted under Sub-section (1) shall be conclusive evidence of the facts stated therein, namely of the facts-

(i) that the respondent is a member of the Armed Forces; and

(ii) that he does not possess any other premises suitable for residence in the local area where the premises are situate.

There is no controversy before me that the respondent has produced such a certificate on record. All that requires to be established by him, therefore, as observed by the Supreme Court in Shivram Shiroor''s case, is that he bona fide requires the premises for occupation by himself or by any member of his family. It is not necessary to consider the question of hardship in a case falling u/s 13A1 as in a case falling u/s 13(1)(g) of the said Act. Section 13(2) of the said Bombay Rent Act can have no application to a case u/s 13A1 of the Act.

In this behalf, Shri Lonkar is justified in contending that the Competent Authority has on appreciation of the entire evidence on record arrived at a categorical finding that the respondent wanted to keep his children and wife at Pune for the purpose of their education. The respondent has categorically stated in his evidence that not only his parents and brothers, but even the parents of his wife were settled in Pune. He stated that rather than subject the children to frequent transfers creating problems of domicile in admission to educational institutions, he would prefer to keep his children at Pune. I find nothing unnatural in such a claim which is absolutely bona fide. If a father, out of concern for the education of his children, selects a place like Pune where his parents, brothers, his wife''s parents are settled, I think this is a clear case of bona fide requirement being established by the respondent. In this behalf, I would refer to the observations of Daud, J., in the case of Shri Subodh Chandra Chakravorty v. Smt. Kailash Kumari and Anr. 1987 M.R.C.J. 81 where, in somewhat similar circumstances, a claim for the premises in Bombay was upheld by this Court. Similarly, I may usefully refer to the Judgment of I.G. Shah, J., in the case of Colonel Mohan N. Gurubaxani v. New Standard Engineering Co. Ltd. 1991 M.R.C.J. 506, where also the applicant wanted to have possession of his premises in Bombay on the ground that Bombay was convenient for the education of children. One can well appreciate the concern of the parents for the education of the children. In the present case, the respondent''s daughter is now 16 years old and his son is now 11 years old. As stated earlier, the daughter is born on the 3rd March, 1976 and the son is born on 2nd March, 1981. This is a crucial period in the life the children as far as their education is concerned. Selecting a place like Pune, which is known for its educational background, particularly when one''s own parents, brothers and wife''s parents are Staying in the same city, is, in my view, a most natural reaction of a father who has some concern for the education of the children. I am, therefore, in agreement with the view expressed by the Competent Authority that the respondent''s claim for possession of the premises on the ground of the children''s education at Pune is absolutely bona fide.

Shri Shivade did try to question the bona fides of the respondent by referring to the fact that at Kondhwa a Flat could have been available to the respondent through the Army Housing Welfare Organisation. It is relevant to note in this behalf that though the respondent enrolled himself as a member of the Society in respect of the Kondhwa Flat as far back as in 1979, by 1987 he had only paid a meagre sum of Rs. 14,000/-. His letter dated 1st September, 1986 addressed to the Managing Director of the Army Housing Welfare Organisation is in response to the letter dated 17th June, 1986 calling upon him to pay the amount if he was to avail of the allotment of the Flat. The respondent expressed his financial inability in view of the fact that he would not be able to raise the funds and that the loan from the Housing Development Finance Corporation was restricted to Rs. One Lakh only. The respondent, therefore, requested for a refund of the amount of Rs. 13,300/- out of the amount paid by him.

As stated earlier, the respondent purchased the suit property on 5th March, 1986. Even before the present proceedings were initiated on the 8th March, 1989, the respondent had ceased to have any interest in the Kondhwa Flat. In this behalf, Shri Lonkar is justified in placing reliance on the observations of the Supreme Court in the case of Yudhister v. Ashok Kumar 1987 2 All I. R.C.J. 238. In Yudhister''s case, the landlord had purchased a house near Kabir Bhavan (apart from the suit house) on 10th July, 1971, but had sold the same on 7th August, 1972. He had applied for ejectment in January, 1974 in respect of the premises in dispute which were acquired by him on 11th October, 1971. There was some controversy as to whether the other house near Kabir Bhavan which was acquired on the 10th July, 1971 and was sold on 7th August, 1972 was vacant or not. It appears that the Supreme Court held that Kabir Bhavan house was not vacant. However, in Para 14 of the Judgment, the Supreme Court observed that it was not able to accept the contention that by sale of the other house, the Respondent-landlord had disentitled himself to ask for the relief because he had the choice of another residential building at his disposal. The Supreme Court did hold that such a reading of the provisions of Section 13(3)(a)(i) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 would expose itself to the vice of unconstitutionality and observed that though it was true that the Rent Act was a beneficial legislation, it must be read reasonably and justly and if more limitations were imposed upon the right to hold the property, then, it would expose itself to the vice of unconstitutionality. I, therefore, find that the respondent''s failure to pursue his membership in the Kondhwa Society sponsored by the Army Welfare Housing Organisation cannot affect the respondent''s bona fides in the facts and circumstances of the present case. There is, thus, no merit in this contention of Shri Shivade.

Shri Shivade''s next contention was that the mere fact that Arun''s name was entered as a joint member was itself sufficient to cast doubts on the bona fides of the respondent. It is not possible to accept this contention. In the first place, the evidence on record shows that the amendment of the Society''s bye-laws permitting the inclusion of a name of a joint member was to enable some members to authorise someone to look after the Society''s affairs in their absence. This is clear from the Resolution dated 27th April, 1988 which is on record. Secondly, in the scheme of the provisions of the Maharashtra Co-operative Societies Act, 1960, the word "member" has been defined in Section 2(19) to mean a person joining in an application for the registration of a Co-operative Society which is subsequently registered, or a person duly admitted to membership of a society after registration and includes a nominal, associate or sympathiser member. The evidence in this behalf shows that by an application made by the respondent he wanted the name of his brother Arun to be included in accordance with Rule 20, Sub-rule (1) of the Maharashtra Co-operative Societies Rules. Sub-rule (1) of Rule 20 says that a Society may admit joint members provided they make a declaration in writing that the person whose name stands first in the share certificate shall have a right to hold and all the liabilities would be borne jointly and severally by them as provided in the Acts, Rules and byelaws. What is more important, however, is the evidence on record in the shape of the application for nomination where on the 9th August, 1987 the respondent had informed the Society that, on his death, his nominee would be his wife Smt. Alka Jayant Joglekar. What is further more important is that Arun is himself a signatory to this application submitted by respondent Jayant. There is not even a whisper in the evidence that Arun had contributed anything towards the consideration for the house. Admittedly, the entire consideration has been paid by the respondent to Smt. Damle. In this view of the evidence on record, it is not possible to contend that the mere inclusion of the name of Arun as a joint member with the respondent would in any manner disentitle the respondent to claim the benefit of the provisions of Section 13A1 of the Bombay Rent Act. It is also not possible to accept Shri Shivade''s contention that the mere inclusion of Arun as a joint member, in the above mentioned facts and circumstances, would cast a doubt on the bona fides of the claim of the respondent.

It is then contended that the respondent has at his disposal his brother''s bungalow called ''Vasant Prabha'' in the Sankalp Society. There is no controversy that this bungalow belongs to the respondent''s brother Arvind, who is himself a Colonel having his family to look after. The respondent has been allowed to stay in that bungalow as and when he is in Pune. Indeed he is at the mercy of his brother and he cannot claim any right much less his wife and children could claim any right to occupy any part of the bungalow ''Vasant Prabha''. When the respondent himself has his house in Pune and needs it for his bona fide requirement, including the requirement of his children''s stay in Pune for education, it is difficult to drive the respondent to his brother and leave him at his mercy. There is, therefore, no merit in the contention that the respondent is comfortably housed in his brother''s bungalow ''Vasant Prabha''.

The argument of Shri Shivade that two rooms have been obtained from Trivedi does not impress me either. As stated earlier, the respondent is today holding the rank of a Lt. Colonel in the Army. He wants his children and wife to be decently housed in the city of Pune where his wife and brothers are well settled; so are his wife''s parents. Expecting his children to live in the two small rooms of 10'' � 10'' each would be unfair to the respondent and to the children. Thus, in spite of the fact that the respondent has obtained possession of two rooms admeasuring 10'' � 10'' each from Trivedi, I do not find anything to doubt the bona fides of the respondent when he says that he wants the possession of the suit premises also from the petitioner. As stated earlier, apart from the petitioner, there is one Mr. Bhalerao, who is the petitioner in C.R.A. No. 807 of 1989 and the area of all the three tenements viz. two rooms from Trivedi, two rooms of petitioner Panse and the remaining two rooms of petitioner Bhalerao is around 700 sq. ft. The respondent eventually himself wants to settle down in Pune and, therefore, it is difficult to say that his need of getting possession of the entire premises is not bona fide.

The contention of Shri Shivade on the point of waiver based on the Notice dated 23rd June, 1989 has to be stated merely for the purpose of being rejected. In the first place, no notice of termination is necessary in the scheme of the provisions of Section 13A1 of the Rent Act. The doctrine of waiver contemplated by Section 113 of the Transfer of Property Act would not at all be applicable to the facts of the present case. What has to be appreciated is the reasons for issuing the said. Notice and Shri Lonkar is justified in pointing out that it was because of the Notice issued by the Pune Municipal Corporation u/s 264(1) of the Provincial Municipal Corporation Act on 13th June, 1989, received by the respondent on the 19th June, 1989, that the respondent issued the notice on 23rd June, 1989 to the petitioner. The sequence of these events is quite significant. If the Pune Municipal Corporation was pressurising the respondent-landlord to carry out essential repairs in respect of the dilapidated portion of the suit house, the respondent had no choice but to call upon the petitioner to vacate for the purpose of enabling the respondent to carry out the said repairs. As and when the respondent did that, he was entitled to call upon the petitioner to increase the rent in accordance with the provisions of Section 9 of the Rent Act. Sub-section 3(a) of Section 9 of the Rent Act reads as under:

(3)(a) The landlord shall also be further entitled to make an account of special or heavy repairs made in accordance with the provisions of this sub-section, a temporary increase in the rent of premisesby an addition to the rent in the manner prescribed at a rate not exceeding eighteen per cent of the standard rent; and the increase of rent shall be payable from the date of completion of the repairs till the amount thereof expenditure for such repairs together with simple interest at ten per cent per annum on such amount is recovered from the tenant.

(Emphasis supplied)

In view of the above provision, I do think that the issuance of the notice dated 23rd June, 1989 in any way operates as a waiver of the right accrued to the respondent to ask for possession of the suit premises in the facts and circumstances of the case.

I have heard both the Counsel at some length. They have taken me through the evidence on record and I find no error of law or jurisdiction in the impugned order. Having perused the entire material on record, including the evidence led by the parties, I do not find anything to warrant interference in the limited jurisdiction under Sub-section (2) of Section 31F of the Bombay Rent Act. There is, thus, no substance in this revision application and the same is liable to be rejected.

Accordingly, Rule in this C.R.A. is discharged. There will, however, be no order as to costs.

At this stage, Shri Shivade prays for time to vacate. Shri Lonkar opposes. However, having regard to the facts and circumstances of the case, in my view, interests of justice would be met by granting some indulgence to the petitioner in the nature of granting time to vacate, subject to the usual conditions. The conditions are that the petitioner must file his undertakings to this Court, as also must produce the undertaking by all the '' adult members in his family in the usual terms. In the event of the petitioner and all the adult members in his family filing the said undertakings in this Court on or before Thursday, the 9th April, 1992, the decree for eviction will not be executed till the end of this year. It is, however, made clear, that in the event of the petitioner failing to file the said undertakings by himself and by all the adult members in his family in the usual form, the respondent is free to proceed in accordance with law after the 10th April, 1992. The matter be, therefore, placed for further directions on Friday, the 10th April, 1992.

Subject to the above, Rule is discharged with no order as to costs. Certified copy of this Judgment to issue expeditiously on payment of usual charges.