Madhukar Katkade vs Sampatrao T. Patrikar

K.L. Shrivastava, J.

This revision petition u/s 23-E of the M.P. Accommodation Control Act, 1961 (for short ''the Act'') is directed against the order dated 14-7-1987 passed by the Rent Controlling Authority, Indore (for short ''the Authority'') whereby it has been directed that the application dated 5-3-1964 u/s 23-A of the Act filed by the petitioner be sent to the Civil Court of competent jurisdiction.

Circumstances giving rise to the revision petition are these. It is not in dispute that the petitioner is in the employment of the M.P. Government as a teacher and from 1963 onwards he is all along posted at Indore. During his posting here, he let out the suit accommodation situate at Indore to the non-applicant on 6-5-1981.

According to the petitioner, in his family circumstances, he wanted to shift to the area where the suit accommodation is situate and when one of his tenants vacated a portion of his building in July 1963, he has shifted to the same. The non-applicant did not vacate the accommodation which forms a part of that building and, therefore, the application u/s 23-A of the Act.

During the pendency of the proceedings, the petitioner amended the application in 1985 by stating that no government quarter has been allotted to him nor is he entitled to one. He is not being paid any house rent as his wife who is also a government servant is already receiving such rent.

The non-applicant filed an application alleging that the petitioner is not ''landlord'' within the meaning of Section 23-J of the Act and that the provisions in Chapter III-A of the Act are not available to a landlord who already has in his possession a part of the building belonging to him. Reliance for this submission was placed on the decision in S.P. Jain''s case, AIR 1987 SC 222.

The learned Authority by the impugned order held that the petitioner let out the accommodation in question to the non-applicant during his posting at Indore and it is not that he has been posted to Indore after the tenancy. Also relying on the aforesaid Supreme Court decision it has held that the petitioner is not entitled to invoke the summary remedy before him. In this view it has sent the application to the Civil Court of competent jurisdiction.

The contention of the learned counsel for the petitioner is that he is ''landlord'' within the meaning of Section 23-J (V) of-the Act and in view of the provision embodied in Section 11-A of the Act which confers exclusive jurisdiction to the Authority, his application could not be sent to the Civil Court. He has further urged that the provision which the Supreme Court was examining in the case cited above is not to be found in the Act and that decision is clearly distinguishable.

The contention of the non-applicant''s learned counsel is that on the material on record the impugned order is clearly sustainable.

The point for determination is whether the revision petition deserves to be allowed.

The Act is a welfare legislation. Clauses (e) and (f) of sub-section (1) of Section 12 of the Act contain grounds for eviction of tenant on the basis of bona fide requirement of accommodation for residential and non-residential purposes respectively. For the purpose of eviction a suit has to be filed in a Civil Court.

The Act was amended by the Amendment Act of 1983 primarily providing for expeditious trial of eviction cases by summary procedure on the ground of bona fide requirement and the aforesaid clauses were omitted and a new Chapter III-A in the Parent Act containing Sections 23-A to 23-I, in order to provide for eviction of tenants on the ground of bona fide requirement etc. was added. The net result of the amendment made by the Amendment Act of 1983 was that the grounds of bona field requirement of the landlord which were earlier contained in clauses (e) and (f) of sub-section (1) of Section 12 of the Parent Act were inserted in Section 23-A and proceedings for eviction of the tenants on these grounds lay before the Authority governed by the special procedure provided in the newly added Chapter III-A and the pending suits and proceedings were governed by Section 12 of the Amendment Act.

As the new forum provided by the Amendment Act of 1983 was being misused by certain landlords, with a view to restrict the benefit of the new forum only to the specified categories of landlords like retired government servants, widows and handicapped persons etc. the Legislature amended the Parent Act by MP. Accommodation Control (Amendment) Ordinance, 1985 (Ordinance No. 1 of 1985) and this Ordinance was subsequently replaced by M.P. Accommodation Control (Amendment) Act 1985 (No. 7 of 1985). The Amendment Act of 1985 inserted a new Section 23-J in Chapter III-A of the Parent Act providing a restrictive definition of ''Landlord''.

Section 11-A has been inserted in Chapter II of the Act and lays down that the provisions of that Chapter so far as they relate to matters specially provided in Chapter III-A shall not apply to the landlord defined in Section 23-J of the Act.

In order to test the correctness of the petitioner''s contention it is necessary to advert to Section 23-J (V) of the Act It reads thus:--

23-J. Definition of landlord for the purpose of Chapter III-A. -- For the purposes of this Chapter "landlord" means a landlord who is -- (V) a servant of any Government including a member of defence services who, according to his service conditions, is not entitled to Government accommodation on his posting to a place where he owns a house or is entitled to such accommodation only on payment of a penal rent on his posting to such place." (emphasis supplied)

It may be pointed out that as held in Asif Ali Vs. Rahandomal, , the word ''owner'' as used in clauses (e) and (f) of sub-section (1) of Section 12 of the Act does not postulate an absolute ownership.

In the instant case it has not been pleaded that according to his service conditions the petitioner is not entitled to Government accommodation on his posting to a place where he owns a house or is entitled to such accommodation only on payment of penal rent. Therefore, on the pleadings as they stand, the petitioner does not fall within the aforesaid definition of ''landlord'' and is, therefore, not entitled to take recourse to the summary remedy in Chapter III-A of the Act and has to go to the general forum of the Civil Court.

It may be pointed out that in passing the impugned order the Authority has placed reliance on the decision in S.P. Jain Vs. Krishna Mohan Gupta and Others, . This decision relates to the interpretation of Section 24-B and 24-C of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972 (No. 13 of 1972) and is clearly distinguishable. Therein a landlord, a member of military services was in possession of ground floor of the building forming a separate unit and was held not entitled to take recourse to the urgency provisions in the sections referred to above for getting the portion of the premises in the occupation of tenant vacated.

The special forum and the special procedure, it appears is intended only for such government servant who is posted at the place where the accommodation is situate, and handicapped by service conditions of the kind requires the same bona fide for occupation for residence for himself or for any member of his family as defined in the Act. It may not be necessary that the letting must be during his posting elsewhere. Reference at this stage may also be made to the decision in Smt. Kamala Sharma''s case, 1988 MPRCJ 278 wherein the aforesaid definition of the expression ''landlord'' has been widely interpreted without relating it to the place where the accommodation in question is situate. Such an interpretation may expose the provision to the vice of discrimination and, therefore, to constitutional invalidity. It may be noted that a government servant not covered by the restrictive definition is not at all deprived of the remedy against his tenant He is free to avail himself of the general provision embodied in Section 12 of the Act. Support for the view regarding invalidity is available in the decision in Mrs Winifred Ross and Another Vs. Mrs Ivy Fonseca and Others, , which has been followed in the decisions in Badriprasad vs. Chimanlal 1987 MPRCJ 66, and Ramesh Chandra Sharma vs. Madhav Rao, 1987 MPRCJ 56.

In Winifred''s case (supra), a retired military officer had become landlord under a gift deed and the term ''landlord'' as used in the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 came up for interpretation. In paragraph 9 of the decision the Supreme Court observed thus:--

Since a liberal interpretation of Section 13-A1 of the Act is likely to expose it to a successful challenge on the basis of Article 14 of the Constitution, it has to be read, down as conferring benefit only on those members of the Armed Forces who were 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 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. Persons in the position of the landlord in the present case cannot therefore, maintain a suit u/s 13-A1 of the Act

In paragraph 10 thereof it has expressly been stated that no opinion is expressed regarding a transferee landlord who is a member of Armed Forces.

In the decision in B. Johnson Vs. C.S. Naidu, , it has been held that Section 23-J of the Act has to be construed as in Winifred''s case (supra) and then there, is no discrimination and, therefore, no constitutional invalidity.

In the ultimate analysis I find that no exception can be taken to the impugned order and the same is not liable to be interfered with in exercise of the discretionary revisional jurisdiction u/s 23-E of the Act.

In the result, the revision petition fails and is dismissed. In the circumstances of the case it is, however, ordered that the parties shall bear their own costs as incurred.