Shri B.K. Sharma vs Col. Harminder Singh Gill (Retired)

G.C. Garg, J.—This revision is directed against the order dated March 29, 1993 whereby an application u/s 13-A of the East Punjab Urban Rent Restriction Act, 1949 (for short ''the Act'') filed by the landlord, respondent herein has been allowed and an ejectment order passed against the tenant-petitioner to vacate the premises in question within one month from the said date.

In order to, facilitate the task of a specified landlord as de fined u/s 2(hh) of the Act to recover possession of his residential building or a scheduled building for his own occupation. Section 13-A was inserted in the Principal Act whereby a specified landlord, who at any time within one year prior to or within one year after the date of his retirement applies to the Controller along With a certificate from the authority competent 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, notwithstanding anything contained elsewhere in the Act or in any other law for the time being in force, has been given a right to recover immediately the possession of his residential building or a scheduled building or any part thereof, For the purpose of this Section, the expression "retirement" means termination of service of a specified landlord otherwise than by resignation. On the strength of the above section, Col. Harminder Singh Gill, respondent herein, claiming himself to be a specified landlord of House No. 224, Section 36-A, Chandigarh, let out to S.K. Sharma, petitioner in the year 1980, filed a petition for the ejectment of the latter from the entire house before the Rent Controller, Chandigarh. It was alleged in the petition that the landlord retired from the Army Service after attaining the age of superannuation and has been asked by the Army Authorities to surrender the vacant possession of the official accommodation by April 11, 1993. Along with the petition, the landlord attached a certificate issued in his favour by the competent authority indicating his date of retirement. An affidavit to the effect that the landlord did not possess any other suitable accommodation in the urban area of Chandigarh was also filed along with the petition. It was further alleged that the landlord was occupying only one room above the garage and one bath room in the said house which were insufficient for his use.

Upon notice of the petition, the tenant-petitioner appeared before the Rent Controller and filed application dated March 10, 1993 seeking leave to contest alleging that the landlord in fact retired on February 28, 1990 and that the letter produced by him did not indicate the date of retirement of the landlord and the said letter was simply regarding his release from the re-employed service with effect from February 10, 1993. The tenant therefore, alleged that the respondent-landlord was not a specified landlord. While filing reply to the application seeking leave to contest by the landlord, it was clarified that though the landlord retired on February 28, 1990 but he was given re-employment after giving the break of one day. It was thus, averred in the reply that he was a specified landlord.

Learned Rent Controller after considering the entire matter and noticing the relevant provision and instructions observed that the land lord-respondent was a specified landlord as defined in the Act. Accordingly, the application of the tenant seeking leave to contest was dismissed and that of the landlord seeking ejectment of the tenant allowed. Consequently, an ejectment order was passed against the tenant.

The core controversy in the present petition, therefore, is whether landlord Col. Harinder Singh Gill, respondent herein is a specified landlord within the meaning of Section 2(hh) of the Act. It is thus, necessary to notice the provisions of Section 2(hh) of the Act which read as under:

"2. Definitions - In this Act, unless there is anything repugnant in the subject or context,-

xxx xxx (hh) "specified landlord" means a person who is entitled to receive rent in respect of 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."

In the present case, the landlord-respondent has been serving in the Army for the last more than three decades. He owned a residential house at Chandigarh which was rented out by him to the petitioner in the year 1980. He retired from military service on February 28, 1990 but after giving a break of one day, he was re-employed by the army authorities and thus, again retired on February 10, 1993 after serving on the same post and place of posting for about three years. The above facts are not disputed by any of the parties. The tenant however, has admitted the relationship of landlord and tenant. In the light of the provisions of Section 2(hh) read with Section 13-A of the Act, it will have to be seen whether during the interregnum viz. February 28, 1990 and February 10, 1993, the landlord- respondent was holding appointment in a public service or post in connection with the affairs of the Union or of a State.

Army letter No. 32329/P/54/MS-3A/IX/MS: Policy dated November 9, 1989 issued by the Army Headquarters, New Delhi lays down the revised policy and comprehensive instructions relating to re-employment of officers of the rank of Colonels and below. The basic aim of re-employment is to offer appointments against existing deficiencies in the officer cadre to officers of the rank of Colonels and below to make up deficiencies in the Army and to utilise the services of retired officers for general administrative and station duties etc. An officer seeking re-employment on selection by the Selection Board at the Army Headquarters based on the criteria enumerated in the said policy is granted re-employment in the same department. Such re-employed officers could be posted at the discretion of the Army Headquarters to be utilised in any of the following ways:-

a) Against specific appointments.

b) On attachment to augment/assist in the work in any Headquarters.

c) To function in the unit/establishment to which posted.

d) For any specific assignment depending on their special qualifications/aptitude.

Such re-employed officers when posted against the deficiency of a unit may be utilised by the Formation, Establishment or Station Headquarters on station and other administrative duties as considered appropriate including training, operational and temporary moves. There is, therefore, no doubt that any army officer even on being re-employed is engaged in the duties relating to the same department. Even otherwise, it is the specific stand of the landlord that after the expiry of re-employment period, he retired from service on February 10, 1993. A certificate duly issued by the competent authority also indicates that the landlord retired on February 10, 1993. Under policy decision dated November 9, 1989, the officers who are re-employed, are entitled to accommodation, if any, available with the Unit concerned. In the present case, it could not be disputed that the respondent had been provided government accommodation for the entire period of his re-employment and he was asked to hand over the vacant possession of official accommodation by April 11, 1993 i.e. within two months of the date of expiry of his re-employment term.

It is in this backdrop to be seen whether the landlord was entitled to seek ejectment u/s 13-A of the Act in respect of his residential house and on rent with the petitioner within one year of February 10, 1993 when his term of re-employment came to an end and was required to vacate the official accommodation allotted to him during that period. It is not at all disputed that the respondent was re-employed on the very next day of his retirement and his re-employed period came to an end on February 10, 1993 and that during the period, the landlord remained posted at his earlier station of posting and continued to occupy government accommodation earlier in his possession. The contention of learned counsel for the petitioner is that the landlord after his retirement was re-employed and, therefore, the date of his retirement would continue to be the original date i.e. February 28, 1990 and it will not stand extended to February 10, 1993 only on the ground that he was re-employed. The contention in other words is that the landlord was entitled to see ejectment of the petitioner only by moving an application u/s 13 and not 13-A of the Act, he having ceased to be a specified landlord after the expiry of period of one year from the date of his actual retirement.

Special provision was made by inserting Section 13-A in the Principal Act on the representation of defence personnels and other Central and State Government employees facing considerable difficulties in getting possession of residential accommodation owned by them after retirement from service as the existing provisions did not provide any immediate relief to such employees for seeking possession of the premises owned by them but for the time being in possession of the tenants. It was with a view to mitigate this hardship being faced of the Central and State Government employees a summary procedure for eviction of tenants from the residential accommodation in favour of the defence personnels and other Central and State Government employees on the eve of their retirement and for their personal occupation in the shape of Section 13-A and some other provisions, was provided. It was specifically provided that such employees could apply for getting their premises vacated from the tenants within one year prior to or within one year after the date of their retirement. Therefore, the provisions made in Section 13-A of the Act permitting the defence personnel and other government employees seeking ejectment of their tenants on the eve of their retirement has to be construed in this context. As noticed earlier, the respondent-landlord in this case retired on February 28, 1990 but having regard to exigencies of services, he was re-employed by the Union of India in the very same Unit at that very place and allowed to continue to keep government accommodation. The extended period of service of the landlord came to an end in February, 1993. If the contention of the tenant- petitioner is to be accepted, the landlord ought to have applied for ejectment of his tenant u/s 13-A of the Act, within one year of his date of retirement viz February 28, 1990 and in that situation, no possible objection could have been taken by him against his eviction. Had such an order been passed, the house in question would have remained vacant for a period of at least two years and the landlord would not have been able to occupy the same being in service of the Union of India and residing along with his family at the station of his posting. This would have served nobody''s cause, neither the tenant nor of the landlord. In a situation which is peculiar to the facts of this case, it has to be taken that for all practical purposes, the date of retirement of the landlord is February 10, 1993 and not February 28, 1990, he having continued in service of the Union of India in continuity of his previous service, Retirement has been defined as termination of service otherwise than by resignation, In this context, therefore, it is reasonable to infer that retirement for seeking ejectment means the termination of the employment in connection with the affairs of the Union of India which in this case is February 10, 1993.

If the contention of the tenant is correct then the landlord would now be required to move an application seeking ejectment of his tenant by moving a. petition u/s 13 of the Act on the ground of personal necessity and wait for his eviction for a couple of years as it is a known fact that petition u/s 13 of the Act takes a couple of years for its disposal and that apart, there is a provision of appeal and revision against the order of the Rent Controller. In that situation, the very purpose of Section 13-A would stand defeated, An Army officer who is immediately granted re-employment at his original place of posting with a facility of accommodation would have to choose between the two, namely, whether he wants to continue in service or must decline the offer in order to seek eviction of his tenant within one year of his actual date of retirement. This, in my view, would defeat the very purpose of the provisions inserted in the Principal Act by way of amendment. There is again no doubt that re-employed officers are subjected to same military discipline as they were prior to their retirement, The landlord did not require the accommodation during the period he remained in service, he having been allotted government accommodation and it will be an unfortunate situation, if after his retirement he is denied the benefit of the provisions of Section 13-A of the Act only on the ground that his actual date of retirement is different than the date of his being relieved after re-employment which was continuous otherwise.

There is another aspect of the matter, as well. Even if it be taken that the respondent-landlord had retired on February 28, 1990 and, admittedly, he was re-employed in connection with the affairs of the Union of India and his re-employed term came to an end on February 10, 1993, in the circumstances of the present case, the latter date viz. February 10, 1993 will be taken as the date of his retirement, at least for the purpose of Section 13-A of the Act and consequently, the respondent-landlord is certainly entitled to have the benefit of the provisions of the said section.

Reliance placed on S.S. Sodhi Vs. Wing Commander Narinder Singh, and Wing Commander Narinder Pal Singh v. S.S. Sodhi,2 1989 (1) R.C. R. 492 by learned counsel for the petitioner renders no assistance to him. These two cases relate to one and the same officer as the matter was taken to the High Court on two different occasions. In these two cases, the landlord retired as Security Officer from the Air Force and was seeking ejectment of his tenant from a house owned by him. The landlord had sought re-employment as Security Officer in the Punjab National Bank in the capacity of as an ex- Serviceman and was entitled to official accommodation to be provided by the Bank. It was in these circumstances held that such a landlord was entitled to seek ejectment of his tenant u/s 13-A of the Act. Again in Bishan Dass v. Sadhu Ram,3 1991(1) R.C.R. 259 has no relevance to the facts of the present case. In the said case, the landlord had sought eviction u/s 13-A by describing the premises as residential. The tenant sought leave to contest on the ground that the landlord in his previous application described the premises as commercial and that in fact the premises were commercial, and therefore, the order of the Meat Controller, refusing leave to contest was erroneous. It was in these circumstances, the High Court remanded the case to the Rent Controller with a direction to take into consideration only the affidavit filed by the tenant for seeking leave to contest and that the Rent Controller could not embark upon to find out the truthfulness or verasity of the affidavit filed as such for granting leave to contest, Again in Precision Steel and Engineering Works v. Prem Deva Niranjan Deva Tayal,4 1982 (2) R.C.R. 544, a Judgment of the Supreme Court also renders no assistance to the counsel for the petitioner. Herein, though the case was under the Delhi Rent Control Act, yet it was held that in a petition for ejectment, the Rent Controller has to grant or refuse to grant leave to contest on the basis of affidavit of the tenant. This judgment does not go to the root of the controversy raised in this revision petition.

No authority taking a view contrary to the one I have taken above, has been brought to my notice. In the circumstances I find no merit in the revision petition and the same is dismissed. The tenant-petitioner is however, allowed one month''s time to vacate the demised premises. No costs.