Full Judgment Text
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CASE NO.:
Appeal (civil) 913 of 2001
PETITIONER:
OMBALIKA DAS & ANR.
Vs.
RESPONDENT:
HULISA SHAW
DATE OF JUDGMENT: 03/04/2002
BENCH:
R.C. Lahoti & P. Venkatarama Reddi
JUDGMENT:
R.C. Lahoti, J.
Colonel P.G. Sarcar, the father of the two appellants before us,
was serving as Superintending Engineer(Civil), Selection Grade,
equivalent to Colonel in the General Reserve Engineering Force, which
is said to be an integral part of the Armed Forces. He retired from his
post on 31st March, 1995. On 14th September, 1995, his two major
daughters, who are the appellants, claiming themselves to be residing
with their father and as dependent on him, initiated proceedings for
eviction of the tenant, the respondent before us, under Section 13(1)(ff)
of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as
‘the Act’, for short) by having recourse to summary procedure under
Chapter VIA of the Act. The tenant sought for leave to defend which
was denied on the ground that the application seeking leave to defend was
filed beyond the time prescribed therefor. The tenant, laying challenge to
the order of the Rent Controller, preferred a petition under Article 227 of
the Constitution before the High Court, but the same was dismissed. The
Rent Controller then, treating the statement by the landlords made in
the application for eviction deemed to have been admitted by the tenant,
passed an order for recovery of possession of the premises. The tenant
preferred a Civil Revision before the High Court, which has been allowed
and in supersession of the order of the trial court, the eviction petition
filed by the landlords has been directed to be dismissed. In the
opinion of the High Court, the father of the two appellants, in view of
his having retired, was not a member of Military Services on the date
of institution of proceedings for eviction and therefore, his major
daughters were not entitled to have recourse to special procedure for
disposal of application for eviction on the ground of bona fide
requirement prescribed by Section 29B (Chapter VIA of the Act); they
could have had recourse to the forum of Civil Court. Feeling aggrieved
by the order of the High Court, the landlords have filed this appeal by
special leave.
The short question arising for decision is, whether major
relations of the military personnel, who has stood retired from the service
and thereby has ceased to be a member of service, are entitled to the
benefit of special procedure prescribed by Section 29B, for the recovery of
possession under Section 13(1)(ff) of the Act.
Section 13(1)(ff) and Section 29B read as under :
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"S.13. Protection of tenant against eviction.__(1)
Notwithstanding anything to the contrary in any other
law, no order or decree for the recovery of possession
of any premises shall be made by any Court in favour
of the landlord against a tenant except on one or more
of the following grounds, namely:-
xxx xxx xxx xxx
(ff) subject to the provisions of sub-section (3-A),
where the premises are reasonably required by
the landlord for his own occupation if he is the
owner or for the occupation of any person for
whose benefit the premises are held and the
landlord or such persons is not in possession of
any reasonably suitable accommodation."
"S.29B. Special Procedure for disposal of
applications for eviction on the ground of bona fide
requirement. - No Civil Court shall entertain any
application by a landlord being a Government
employee, and who being in occupation of any
residential premises allotted to him by his employer,
is required by, or in pursuance of, an order made by
such employer, to vacate such residential
accommodation, or in default to incur certain
obligations on the ground that he owns a
residential accommodation either in his own name
or in the name of his wife or dependent child at or
near the place where he is posted for the time being,
[or by a landlord who has retired, or will retire within
a period of less than one year, as a member of the
naval, military or air force of the Union of India, or
by a landlord who is the parent or the wife of such
member of the naval, military or air force of the
Union of India, or by a landlord who is a relation
(other than a minor child or the widow) and a
dependant of a member of the naval, military or air
force of the Union of India and ordinarily resides
with him or a minor child or the widow of such
member who dies while in service or within five
years of retirement] for the recovery of possession of
any premises on the ground specified in clause (ff) of
sub-section (1) of section 13 but such application shall
be dealt with by the Controller in accordance with
the procedure specified in this section.
(2) Whenever any application is filed before the
Controller by a landlord referred to in sub-section(1)
for the recovery of possession of any premises on the
ground specified in clause (ff) of sub-section (1) of
section 13, the Controller shall issue summons, in the
form specified in the Second Schedule.
"Provided that__
(a) where the landlord has retired, or will retire
within a period of less than one year, as a
member of the naval, military or air force of the
Union of India, a certificate by the Area or Sub-
Area Commander within whose jurisdiction the
premises are situated or by the Head of his
Service or by his Commanding Officer that he
has retired, or will retire, as such member and
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that he requires the premises for his own
occupation and for the occupation of his family
after retirement, or
(b) where the landlord is the parent or the wife of
such member of the naval, military or air force
of the Union of India as aforesaid, a certificate
by the Area or Sub-Area Commander within
whose jurisdiction the premises are situated that
he or she is the parent or the wife, as the case
may be, of such member of the naval, military
or air force of the Union of India and that he or
she requires the premises for his or her own
occupation and for the occupation of his or her
family after the retirement of such member, or
(c) where the landlord is a relation (other than a
minor child or the widow) and a dependant of a
member of the naval, military or air force of the
Union of India and ordinarily resides with him
or a minor child or the widow of such member
who dies while in service or within five years of
retirement, a certificate by the Area or Sub-Area
Commander within whose jurisdiction the
premises are situated that he or she is the
relation and dependant as aforesaid or the minor
child or the widow, as the case may be, of the
deceased member of the naval, military or air
force of the Union of India and that he or she
requires the premises for his or her own
occupation and for the occupation of his or her
family,
shall be produced before the Controller while filing the
application, and such certificate shall be conclusive
evidence of the fact stated therein.".
The portion, which is placed between brackets ’[ ]’ in the text of
the provision reproduced hereinabove, has been substituted by West
Bengal Premises Tenancy (Amendment) Act, 1979 (Act XLI of 1979) with
effect from 17th March, 1980 in place of the words which earlier read as :
"or by a landlord who is a retired member of the
naval, military or air force of the Union of India or
will retire within a period of less than one year as
such member,"
The provisos (a), (b) and (c) to Sub-Section (2), in the present form,
were also added by the 1979 Amendment.
The Statement of Objects and Reasons for the above amendment is
set out in the Bill as under :
"Section 29B of the West Bengal Premises
Tenancy Act, 1956, as amended by the West
Bengal Premises Tenancy (Amendment) Act,1978,
provides some relief, inter alia, to the retiring or
retired members of the naval, military or air force of
the Union of India in the matter of getting back
possession of their own premises let out to tenants, by
a special procedure laid down therein. It is considered
necessary that the same relief should also be extended
to the parent or the wife of such member of the naval,
military or air force of the Union of India or the
relation and dependant (other than a minor child or
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the widow) or the minor child or the widow of a
member of the naval, military or air force of the
Union of India who dies while in service or within
five years of retirement."
(See the Calcutta Gazette Extraordinary dated
August 29, 1979 page 1630)
Sub-Section (1) of Section 29B, as it now stands, contemplates the
following four categories of landlords, the fourth one again sub-divided
into two sub-categories, who can take advantages of the special procedure
for disposal of application for eviction on the ground of bona fide
requirement. These are:-
(i) a landlord being a Government employee, and who being in
occupation of any residential premises allotted to him by his
employer, is required by, or in pursuance of, an order made by such
employer, to vacate such residential accommodation, or in
default to incur certain obligations on the ground that he owns a
residential accommodation either in his own name or in the name
of his wife or dependent child at or near the place where he is
posted for the time being;
(ii) a landlord who has retired, or will retire within a period of less
than one year, as a member of the naval, military or air force of the
Union of India;
(iii) a landlord who is the parent or the wife of such member of the
naval, military or air force of the Union of India;
(iv) a landlord who is:
(a) a relation (other than a minor child or the widow) and a dependent of
a member of the naval, military or air force of the Union of India and
ordinarily resides with him,
or
(b) a minor child or the widow
of such member who dies while in service or within five years of
retirement.
Sub-Section (1), as it now stands, having been given its present
shape, consequent upon additions made by atleast two amendments, is a
long sentence incorporating within its ken several categories of landlords,
which, though confusing to comprehend at the first blush, can nevertheless
be separated and defined by a careful reading of the provision so as to find
out the intention of the Legislature. We will concentrate on the 1979
Amendment because the category, to which the appellants belong, was
included in Section 29B by this amendment. A comparative reading of the
text of the provision, pre and post amendment, reveals a few prominent
features. The expression ’a retired member’ was not a very appropriate
expression and therefore, the Legislature availed the opportunity for
substituting a better and more perfect expression in substitution thereof
though retaining in the newly introduced text, the class of landlord referred
to in the omitted text, and making the text, along with newly included
classes of landlord, more clear and meaningful. The category of landlord
’being a government employee’ was retained as before and left untouched.
However, the landlord, who is either himself a member of the naval,
military or air force or who is connected with such member by relationship
coupled with dependence and joint residence, upon whom the Legislature
intended to confer the benefit of Section 29B, were all included in the text
of the amendment. For category (ii) landlord, the eligibility requirement is
that he should be a member of the naval, military or air force of the Union
of India on the date of retirement, though the action for recovery of
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possession may be commenced within a period of less than one year of
retirement or post retirement. In category (iii), by using the word ’such’ as
qualifying the word ’member’ in the context of his parent or the wife, the
intention of the Legislature is to confer the benefit of Section 29B on a
landlord who is a parent or the wife of a member of the naval, military or
air force of the Union of India, who has retired or will retire within a period
of less than one year. Thus, a member__landlord and a parent or the wife of
such member, who is himself or herself a landlord, are placed on the same
footing. While dealing with landlord falling in category (iv), the
Legislature has consciously not used the words ’such member’ in the
context of a relation. If the words would have been a relation of ’such
member’ then the word ’member’ would have taken the same colour as has
been given to the word ’member’ in category (ii). By using the word ’a
member’ in this part of the running sentence, the intention of the
Legislature is that here the word ’member’ should take a colour different
from the one assigned to ’a member’ and ’such member’ in category (ii)
and (iii) respectively. While dealing with category (iv) and touching sub-
category (a), the Legislature once again uses the expression __ ’a member of
the naval, military or air force of the Union of India’ and while passing on
to sub-category (b) prefixes adjective ’such’ to noun ’member’; meaning
thereby, that in sub-category(b), ’member’ has to be read in the same sense
as is attributable to it in the preceding part of the sentence dealing with sub-
category (a) of category (iv). In addition, the word ’such member’ is
qualified by ’who dies while in service or within five years of retirement’.
In the context of that part of the sentence which has been added by 1979
Amendment, a relation (dependent and co-resident) is treated on par with a
minor child or the widow (of a member of the naval, military or air force of
the Union of India’). The reason is not far to seek. The Legislature feels
that a relation, dependent and ordinarily resident with a member, and minor
child or widow of such member __ all the three categories of landlord are
such whose requirement for self occupation of tenanted premises would
arise on account of death of a member while in service or even after
retirement; else such relation, a minor child or the wife would continue to
reside with such member. However, death of such member, as an event
though unfortunate but conferring eligibility for invoking Section 29B on a
relation (dependent and jointly residing), or a minor child or the widow,
should have taken place while such member is in service or within five
years of retirement.
Recently in Central Bank of India Vs. Ravindra & Ors., (2002) 1
SCC 367, a Constitution Bench of this Court has observed that the use of
the word ’such’ as an adjective prefixed to a noun is indicative of the
draftsman’s intention that he is assigning the same meaning or
characteristics to the noun as has been previously indicated or that he is
referring to something which has been said before. New Webster’s
Dictionary and Thesaurus was cited with approval wherein the meaning of
’such’ is given as "of a kind previously or about to be mentioned or
implied; of the same quality as something just mentioned (used to avoid the
repetition of one word twice in a sentence); of a degree or quantity stated or
implicit; the same as something just mentioned (used to avoid repetition of
one word twice in a sentence); that part of something just stated or about to
be stated".
We do not agree with the construction placed by the High Court on
the relevant part of Section 29B which is under consideration. A relation,
who is a dependent and also jointly residing with member of naval, military
or air force of the Union of India would hardly have an occasion or need to
initiate proceedings for eviction so long as such member is alive and in
service. We are clearly of the opinion that a relation (dependent and jointly
residing), a minor child and the widow __ are such three classes as the
Legislature intended to treat on a par. Our this inference and such
classification into the several categories, as we have made hereinabove,
finds support from proviso (a), (b) and (c). Category (ii) is dealt with by
proviso (a). Category (iii) is dealt with by proviso (b). Category (iv) is
dealt with by proviso (c). According to proviso (c), the certificate by the
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Area or Sub-Area Commander of the jurisdiction is to be issued by
reference to the two sub-categories, viz.: (i) the relation and dependent as
aforesaid, or (ii) the minor child or the widow, as the case may be __ all
referable to the deceased member and the requirement of premises being for
his or her own occupation and for the occupation of his or her family.
It is well settled that classification for the purpose of legislation
cannot be done with mathematical precision. The Legislature enjoys
considerable latitude while exercising its wisdom taking into consideration
myriad circumstances, enriched by its experience and strengthened by
people’s will. So long as the classification can withstand the test of Article
14 of Constitution, it cannot be questioned why one subject was included
and the other left out and why one was given more benefit than the other.
Learned counsel for the appellants submitted that real need of such
landlord (as like the appellants) arises when the person, whose relation he
or she is, has ceased to be in service and therefore, the provision should
be so interpreted as to advance the purpose sought to be achieved by
enacting the provision. We find it difficult to agree. Resort can be had
to legislative intent for the purpose of interpreting a provision of law, when
the language employed by the Legislature is doubtful or susceptible of
meanings more than one. However, when the language is plain and explicit
and does not admit of any doubtful interpretation, in that case, we cannot,
by reference to an assumed legislative intent, expand the meaning of an
expression employed by the Legislature and therein include such category
of persons as the legislature has not chosen to do. We cannot also hold
that the special procedure of Section 29B can be taken advantage of by a
landlord who is a relation of a member of such service, after his retirement,
within five years of the date of retirement because in our opinion, the words
"while in service or within five years of retirement" qualify the preceding
words "of such member who dies", and are, therefore, referable to the
event of death of such member. If only the Legislature would have
intended that the benefit of Section 29B should be available to a landlord
who is a relation of a member of such service even after his retirement and
living, in that case, in the part of the provision which is under
consideration the Legislature would have used some such words as "a
member or retired member" or simply "such member" instead of "a
member", in which case there could have been some merit in the
submission made by the learned counsel for the appellants. But, the
Legislature has not chosen to do so.
As we agree with the High Court that the petition under Section
13(1)(ff) read with Section 29B was not maintainable, though for reason
different from the one assigned by the High Court, it is not necessary to
examine the alternative submission made by the learned counsel for
the respondent that Colonel P.G. Sarcar, the father of the appellants was a
member of Border Roads Organisation set up by and under the control of
Ministry of Transport of the Government of India and hence, was not a
member of military services.
The dismissal of this petition, needless to say, would not debar
the appellants from seeking the remedy of recovery of possession from
the tenant-respondent by having recourse to such other provision of law
and such other Forum, as may be available to them.
The appeal is dismissed, though, without any order as to costs.
.. .......................J
(R.C. LAHOTI)
.........................J.
(P.VENKATARAMA REDDI)
April 3, 2002.
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