Ashok Agarwal, J.@mdashThe present revision application has been filed by the original-opponent seeking to challenge the judgment and order dated 31st March, 1990 passed by the Component Authority, Konkan Division, in case No. 2 of 1988. By the said order, the application of the respondent original-applicant for possession u/s 13-A1(1)(A)(ii) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Bombay Rent Act") on the ground that the applicant who holds a scientific post in the department of Atomic Energy bona fide requires the suit premises for her occupation was decreed. The suit premises consist of flat No. 3 situate on the ground floor, Sindhi Immigrants Co-op. Housing Society Ltd., Little Malbar Hill, Chembur, Bombay 400 071. The same is in possession of the opponent on rent of Rs. 138/- per month. The said flat is situate in a building which consists of ground, first and second floor. The said building is constructed on a land belonging to the aforesaid Sindhi Immigrants Co-op. Housing Society Ltd. of which the applicant is a member. Initially one Smt. Nawabai wife of Udharam was a member of the said Society. On 1st December, 1949 Motiram, son of the aforesaid Nawabai was accepted as a member in place of Nawabai. On 14th November, 1961 Udharam became a member in place of Motiram. Udharam in his capacity of being a member of the aforesaid society and having been allotted the plot of land constructed the present building which consists of the ground, first and second floors. On 11th September, 1969 Udharam died leaving behind him three sons and three daughters. The applicant is one of the said three daughters. On 21st September, 1969 a deed of declaration was executed between the aforesaid sons and daughters whereunder the ground floor was allotted to the share of the applicant and her brother Hiranand. The first and second floor were allotted in favour of the other sons and daughters. The aforesaid arrangement was accepted by the Society by its resolution dated 24th September, 1969. On 31st January, 1988 the Society accepted the arrangement arrived at between the applicant and Hiranand whereunder Flat Nos. 1 and 2 of ground floor were allotted to the applicant. It may be mentioned at this stage that flat No. 1 is in possession of the applicant and her brother Hiranand whereas flat Nos. 2 and 4 are in possession of tenants.
2. The applicant filed the present application for possession stating that she holds a scientific post in the department of Bhabah Atomic Research Centre (hereinafter for the sake of brevity referred to as "the BARC''''). She is a doctor in charge of a dispensary of the BARC in Chembur. According to her, she is required to reside alongwith her brother Hiranand and his family members in flat No. 1 which is insufficient to accommodate all the family members of Hiranand and herself. It is her further case that her relations with her sister-in-law are strained and the said sister-in-law has called upon her to vacate the said flat. She, therefore, bona fide requires the suit premises for her own occupation.
3. The said application was resisted by the opponent by filing his written statement. The opponent denied that the applicant held a scientific post in the department of BARC. He further denied that the applicant was the owner of the suit flat. He denied the relationship of a landlord and tenant between the applicant and himself and claimed to be the tenant of one Manu Udharam Jagasia, the brother of the applicant. According to him, he had paid rent to the applicant and others on the request of the said Manu. He contended that flat No. 1 on the ground floor has been sub divided into flat Nos. 1A and 1B. According to him, flat No. 1A was occupied by Hiranand and Flat No. 1-B is in possession of the applicant. The opponent challenged the certificate issued u/s 13A1(1)(A)(b) which was set up by the applicant for claiming possession. The opponent prayed that the application of the applicant be dismissed with costs.
4. The applicant in support of her case examined herself. She also examined Shri Shankaran Gopalkrishnan, the Assistant Personnel Officer of the BARC, who proved certificate dated 22nd July, 1988 issued by the Deputy Secretary/Staff Relations Officer u/s 13A1(1)(A)(b) certifying that the applicant is a Scientific Officer, that she holds a scientific post in the BARC and that she is the owner of accommodation of 42, Sindhi Society, Chembur, Bombay 400 071 and does not possess any other residence in Bombay in her name. The said certificate further recites that the same is issued to the applicant for initiating proceedings against her tenants and to get possession of her accommodation, under the provisions of section 13A1 of the Bombay Rent Act. The applicant further examined Shri Chaturbhuj Asanmal Vazirani, the Manager of the Sindhi Immigration Co-operative Housing Society who incidently happen to be the maternal uncle of the applicant. He deposed that the division of the ground floor between the applicant and Hiranand was accepted by the Society. The applicant lastly examined Smt. Sarla Ramchand Naziani, the aunt of the applicant. She deposed to the joint residence of the applicant alongwith her brother Hiranand and his family members consisting of his wife and two college-going children and the strained relations which existed between the applicant and her sister-in -law.
5. In rebutal, the opponent examined himself. He also examined Shri Mahesh Mansukhlal Chokshi, a Supervisor in the Legal Department of the Bombay Suburban Electric Supply Ltd., Santacruz. He deposed to an application being made by the applicant for transfer of the Electric Metre of flat No. 1-A in her name. The opponent further examined Shri Madhukar Vishnu Vengulekar, a Ward Officer in the Chembur Ward i. e. in the Assessment Department of the Bombay Municipal Corporation. He deposed that as per the Property Register the said property stands in the name of Motiram Udharam Jagasia. The opponent lastly examined Shri Chetan Shankar Narayan Rao son of the opponent who deposed to the details regarding flat Nos. 1A and 1B.
6. By the impugned judgment and order dated 31st March, 1990 the learned Competent Authority was pleased to hold that the applicant proved that she is a landlord as contemplated u/s 13-A1(1)(A)(ii) of the Bombay Rent Act and the opponent is her tenant. She further proved that she is holding a scientific post as contemplated u/s 13-A1(1)(A)(ii) of the Bombay Rent Act. He held that the certificate u/s 13-A1(1)(A)(b) produced by the applicant is proved. He found that the applicant has no suitable accommodation. Pursuant to the above finding he proceeded to grant the application for eviction of the opponent from the suit flat.
7. Taking exception to the aforesaid judgement and order the opponent has preferred the present revision application.
8. The first contention which is raised by Shri Nesari the learned Counsel appearing in support of the present Revision Application is in respect of the certificate issued u/s 13-A1(1)(A)(b) which is relied upon by the applicant for claiming possession. Shri Nesari pointed out that the applicant in the application for claiming possession relied upon a certificate dated 29th February, 1988 which was issued by one T.J. Asnani, Head, Personnel Division of the BARC. The applicant however, during the trial produced an altogether different certificate dated 22nd July, 1988 issued by one K. Narayanaswamy, Deputy Secretary/Staff Relations Officers and the same was got proved through the evidence of Shri Shankaran Gopalkrishnan, Assistant Personnel Officer, BARC. Shri Nesari submitted that the certificate which was made the cause of action was the certificate dated 29th February, 1988 and the applicant did not choose to prove the same. Hence the applicant has given up this very basic cause of action upon which rested her claim for possession. Mr. Nesari submitted that it was not open to the applicant to rely upon the subsequent certificate issued during the pendency of the proceedings to claim possession u/s 13-A1(1)(A).
9. In order to appreciate the aforesaid contention, it would be convenient to extract the relevant provisions of section 13-A1(1)(A) on which the claim for possession is based.
(A) a landlord, who-
(i) _______
(ii) holds a scientific post in the Department of Atomic Energy of the Central Government or any of its aided institutions (hereinafter in this section referred to as "a scientist") or was such a scientist and has retired as such (which term shall include premature retirement) and one year has not elapsed since his retirement on the date of making of the application,
shall be entitled to recover from his tenant the possession of any premises owned by him on the ground that such premises are bona fide required by him for occupation by himself or by any member of his family, by making an application for the purpose of recovery of possession of the premises, to the Competent Authority; and the Competent Authority shall make an order of eviction on that ground if -
(a) _________________
(i) ________________
(ii) ________________
(b) in the case of a landlord who is scientist, he produces a certificate signed by an officer or the Department of Atomic Energy of, or above, the rank of Deputy Secretary to Government to the effect that ---
(i) he is presently holding a scientific post in the Department of Atomic Energy or in any of its aided institutions specified in the certificate or he was holding such post and has now retired with effect from the date specified in the certificate;
(ii) he does not possess any other suitable residence (excluding any residential accommodation provided by Government) in the local area where the premises are situated."
10. Placing reliance on the above provisions, Shri Nesari submitted that the issuance of the certificate as provided u/s 13-A1(b) is sine qua non for the purpose of maintaining an application u/s 13-A1 If such certificate is not issued, an application under the aforesaid provisions would not lie. Mr. Nesari further relied upon the amended provisions of Part IIA of the Bombay Rent Act which came into force with effect from 1st October , 1987. The said Part II A provides for summary disposal of the applications u/s 13A-1 and 13A-1 It provides for appointment of Competent Authority and provides for special provisions for making application to the Competent Authority for eviction of tenants or licensees. A special procedure for disposal of such application is laid down. Mr. Nesari laid special stress on section 31E(4)(a) which provides:-
"The tenant or licensee on whom the summons is duly served (whether in the ordinary way or by registered post in the manner laid down in sub-section (2) shall not contest the prayer for eviction from the premises unless, within thirty days of the service of summons on him as aforesaid, he files an affidavit stating ground on which he seeks to contest the application for eviction and obtains leave from the Competent Authority as hereinafter provided, and in default of his appearance in pursuance of the summons or his obtaining such leave, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant of the licensee, as the case may be, and the applicant shall be entitled to an order for eviction on the ground aforesaid.
Shri Nesari further relied on sub-section 31E(4)(b) which provides :---
"The Competent Authority shall give to the tenant or licensee leave to contest the application if the affidavit filed by the tenant or licensee discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground specified in section 13A-1 or 13A-1
Further reliance was placed on sub-section 31E(4)(c) which provides :---
"Where leave is granted to the tenant or licensee to contest the application the Competent Authority shall commence the hearing of the application as early as practicable and shall, as far as possible, proceed with the hearing from day to day and decide the same, as far as may be, within six months of the order granting of such leave to contest the application."
11. Placing reliance upon the above provision Shri Nesari submitted that the above provisions are special salutary provisions enacted for the benefit of special class of landlords and the said summary procedure is made available only to that class of landlords who have been issued a certificate as contemplated u/s 13A1(1)(a)(b).
12. In my judgment, there is no merit in the above contention of Mr. Nesari. It appears that the certificate dated 29th February, 1988 which was initially relied upon by the applicant at the time of filing of the application was issued by Shri T.J. Asnani, Head, Personnel Division of the BARC. There appeared to be some doubt as to whether the said T.J. Asnani was an officer of or above the rank of Deputy Secretary to the Government. Hence the applicant made a fresh application and obtained a certificate dated 22nd July, 1988 which was issued by the Deputy Secretary of BARC and the said certificate was got proved through the evidence of applicant and her witness Shankaran Gopalakrishnan.
13. On the question as to whether such a certificate is a basic requirement for the maintainability of an application u/s 13A-1 of the Bombay Rent Act, it would appear that for purpose of obtaining such certificate one has to establish two facts :---
1) that the landlord is a Scientific Officer in the BARC ;
2) that he does not possess any other premises suitable for residence in the local area where the premises are situated.
The provisions of section 13A-1 of the Bombay Rent Act do not provide that an application cannot be filed in the absence of such a certificate. All that the section provides is that the Competent Authority shall make an order of eviction in case the landlord produces a certificate. Hence as long as the certificate is produced prior to the passing of the order of eviction, the same would be due compliance of the requirement of the said provisions. It may be convenient in this connection to make a reference to the provisions of section 13(1)(hh) of the Bombay Rent Act which provides that a landlord shall be entitled to recover possession of any premises if the Court is satisfied that the premises consist of not more than two floor and are reasonably and bona fide required by the landlord for the immediate purpose of demolishing them and such demolition is to be made for the purpose of erecting new building on the premises sought to be demolished. Section 13(3A) provides that :---
"No decree for eviction shall be passed on the ground specified in clause (hh) of sub-section (1), unless the landlord produces at the time of the institution of the suit a certificate granted by the Tribunal under sub-section (3B) --------------------" (Emphasis provided).
14. In the case of Sharanghdhar Purshottam Kanhare v. Sitaram Mahadeo Dabholkar and another reported in 1979 M.L.J. 236, it has been held that :---
"The provisions of section 13(3-A), Bombay Rents, Hotel and Lodging Houses Rates Control Act are directory and not mandatory. The words "No decree for eviction shall be passed..... " indicate that the intention was to prohibit passing of a decree unless there is compliance of the provision and not to bar the proceedings in suit from going on. Having regard to the scheme of the Act, the provisions thereof, the language used in sub-section (3-A) of section 13 and the provisions of Order 7, Rules 14 and 18, CPC the non production of the documents at the time of institution of suit will not be fatal to the maintainability of the suit and the Court will be justified in allowing the parties to produce such documents during pendency of the suit on showing sufficient reason for non-production and the Court will exercise the discretion judiciously and if such application is refused by the Court the suit must stand dismissed."
A similar view has been taken in the case of Kondiram Mathari Jadhav and others v. Bankat Swami Trust, Pandharpur and others, reported in 1981 M L.J.921. It would thus appear that even in a case where section 13(3A) provides for the requirement of the landlord to produce at the time of the institution of the suit a certificate, the said requirement has been held to be directory and not mandatory. In the present provision viz. section 13A-1 all that is provided is that the Competent Authority shall make an order of eviction if the landlord produced the said certificate. In other words as long as the certificate is produced during the pendency of the trial, the same would be sufficient compliance of the requirement u/s 13A-1
15. In regard to the criticism of Mr. Nesari regarding the special summary procedure provided under Part II of the Rent Act, it would be open to a tenant to resist an application filed u/s 13A-1 on the ground that the same is not maintainable as the same is not accompanied by a certificate which is required u/s 13A-1 or that the certificate which is relied upon is not in due compliance with the requirement of the said section. The tenant can claim the dismissal of the application on that ground, or can claim leave to contest the application. In the present case all that has happened is that the applicant was armed with a certificate but not a certificate issued by an Authority who was not below the rank of Deputy Secretary to the Government. After the applicant realised the same, she applied to the relevant authority and obtained the second certificate issued by the Competent Authority. In my view, it cannot be held that the opponent has suffered any prejudice on account of the second certificate being produced after the institution of the application. It was produced prior to the commencement of the recording of the evidence in the case and the same, in my view is in order. The first contention raised by Mr. Nesari is, therefore, liable to the rejected.
16. This takes me to the next contention raised on behalf of the contending parties viz. the validity of the certificate issued u/s 13A-1(1)(A)(b) of the Bombay Rent Act and relied upon by the applicant for the purpose of claiming possession. As already stated the plaintiff has not relied upon the certificate dated 29th February, 1988 issued by T.J. Asnani, Head, Personnel Division, but has relied upon the certificate dated 22nd July, 1988 issued by K. Narayanaswamy, Deputy Secretary/Staff Relations Officer. The said certificate has been proved by the evidence of Shankaran Gopalakrishnan, Assistant Personnel Officer in BARC in the Vigilance Section at Bombay. The said certificate reads as follows :---
"TO WHOM SO EVER IT MAY CONCERN
This is to certify that:
(i) Dr. (Kum.) Kanta U. Jagasia, Scientific Officer, Grade SE, Medical Division is presently holding a "Scientific Post" in the scale of pay of Rs. 3700-125-4700-150-5000 in the Bhabha Atomic Research Centre, Department of Atomic Energy, Government of India.
(ii) As per records, Dr. (Kum.) K.U. Jagasia, who is an owner of accommodation at 42, Sindhi Society, Chembur, Bombay-400 071 does not possess any other residence in Bombay in her name.
This certificate is issued to Dr. (Kum.) Jagasia at her request for initiating the eviction proceedings against her tenants and to get possession of her accommodation referred to in item (ii) above , keeping in view the provisions contained in section 13A-1 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 as amended from time of time.
Sd/-
(K. Narayanaswamy)
Deputy Secretary/Staff Relation Officer."
17. Shri. Nesari, the learned Counsel appearing on behalf of the opponent submitted that though the certificate mentions that the applicant is holding a scientific post, she is nothing but a Medical Officer-in-charge of a dispensary which is run by the BARC. He submitted that the scientists, who are sought to be given special favour of the provisions of section 13A-1 are those who are engaged in pure and applied research and development in the scientific field in general and in the nuclear field in particular. It is not that each and every employee of the BARC who was in contemplation for being conferred with the special benefits of section 13A1(1)(A)(ii) but only those scientists who are engaged in the field of scientific research or engaged in nuclear projects. Shri Nesari placed reliance on the case of
"Persons holding scientific post under the Atomic Energy Department of the Central Government and its aided institutions like the Tata Institute of Fundamental Research and the Tata Memorial Centre, are playing key roles in pure and applied research and development in the scientific field in general and in the nuclear field in particular. The activities of these Scientists are spread all over India and some of them have to visit foreign countries also. They are liable to transfer from one unit to another. Some of them are required to occupy quarters provided by the Department in the vicinity of a Project as a condition of their service. Such of them, as have residential premises of their own, have necessarily to let them temporarily when posted on projects or when required to stay in quarters provided by the Department. On their transfer to the place where they own their premises or when they are required to vacate the quarters provided by the Department, they are compelled to initiate lengthy legal proceedings in the appropriate Courts under the existing Rent Control Act to recover possession of their premises. This diverts their concentration and results in loss of their precious time, which in the larger interest of the public, they should be able to utilise on their scientific research or nuclear projects. In view of the important role played by them and the nature of their duties and obligations, these scientists form a class by themselves who like the Defence Services Personnel, need different treatment from that accorded to other landlords for the recovery of their own houses.
Accordingly, it is considered necessary to make a special provision in the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 for those Scientists also, analogous to that made for the Defence. Services Personnel with appropriate modifications, to enable these scientists to regain possession of their premises when required for bona fide occupation by themselves or members of their families, on the production of the necessary certificate from the Atomic Energy Department. A retired Scientist will be able to get the benefit of this special provision only if he institutes the suit for recovery of possession within one year of this retirement, and his widow will get such benefit if she institutes the suit within one year of his death, if he dies while in service or within one year of his retirement.
The Division Bench observed :---
"The statement points out that initiating lengthy proceedings in Rent Control Act" diverts their concentration and results in loss of precious time which in the larger interest of the public they should be able to utilise on their scientific research or nuclear projects. The statement justifies the grouping of scientist in a class by themselves for a different treatment than that accorded to other landlords for the purpose of recovery of their own houses, in view of the peculiar duties and obligations performed by and imposed upon the scientist."
The Division Bench further observed in paragraph 11 as under :---
"To take steps to ensure that an efficient, cohesive team of scientists is comfortably placed so that they give their very best to the Nuclear programme is a compelling government interest and that provides the hyphen which joins the classification with the object and purpose of the Act."
It was also observed:
"It requires no statistics to conclude that Scientist Landlords envisaged by section 13A-2 who are really in need of their flat for occupation would be few and far between considering the total number of tenements in the Megapolis of Bombay."
18. In my judgment, there is considerable merit in the above contention raised by Shri Nesari. The applicant in her deposition has stated that she is M.B.B.S. (Bom) M.C.P.S., DGO, D.I.M. and F.C.I.P (Madras) F.R.S.H. (London). All these nine qualifications mainly pertain to medicine. She is attached to the Chembur Dispensary of BARC. She examines patients and treats them. She further deposed that she is a medical graduate and she is entitled to non practising allowance. She has further stated that Research Scientists are not entitled to non-practising allowance. She has immediately thereafter gone on to state that she did not know whether the Scientists are entitled to non practising allowance. In my view, the applicant cannot be termed a Scientist to whom the benefit of section 13A1 can be accorded. It is not each and every employee of the BARC who can be offered special benefit u/s 13A1. The said benefit is restricted to Scientists i.e. such officers who are to be found in the Statements of Objects and Reasons which accompany the Amending Act and which were relied upon by the Division Bench in the aforesaid case of M/s. Premier Synthetics. The applicant cannot be termed to be a Scientist to whom the Legislature intended to confer the special benefits of section 13A(1). The applicant is not a Scientist. She is not holding the Scientific post but is a doctor, a Medical Practitioner, attached to a dispensary run by the BARC. She is not engaged in any Scientific research. Consequently, the Legislature could not be said to have had in mind such an office for the purpose of conferring the special benefit of section 13A1.
19. Shri Abhyankar, the learned Counsel appearing on behalf of the applicant, strenuously submitted that the certificate issued by the BARC mentions that the applicant is holding a Scientific post. He also pointed out by making a reference to 1977 Gazette of India, Part I, section 2, page 810 that the appointment of the applicant has been gazetted. The applicant has been described as Scientific Officer/Engineer Grade SD. He submitted that on production of the certificate u/s 13A1(1)(b) the applicant would be automatically entitled to the benefit of section 13A1 inasmuch as the contents of the said certificate under sub-section (2) are conclusive proof of the facts stated therein and it is not open to the Court to go behind the certificate. Shri Abhyankar relied upon the case of Premier Synthetic Processors Ltd. and other v. Dr. Mrs. Roshan F. Chinoy and another, reported in 1986 Maharashtra Rent Control Journal, page 464 wherein it was observed that once the certificate is held to be operative and not vitiated on any ground, the facts stated therein that the plaintiff holds a Scientific Post becomes conclusive evidence of that fact by virtue of Explanation 2 read with section 13A2(1)(i) of the Act, and it is not open to enter into the said controversy. It is to be noted that in that case the Court found that the plaintiff in that case was doing research work of a serious nature in Pathology. She had published quite a few papers in Scientific Journals of International and National Levels. It is no doubt true that section 13A1(2) does make the facts stated in the certificate conclusive evidence of the facts stated therein. However, when it is shown that the applicant, by virtue of the duties that she is performing in the BARC, cannot be included in the category of a scientific officer, it would be always open to a Court to consider whether the applicant is an officer to whom the legislature intended to confer the said benefit. Merely because the BARC, who are the employers of the applicant, have chosen to style the applicant a Scientific Officer would not detract from the power or the jurisdiction of the Court from finding out whether the applicant is in fact a Scientific Officer to whom the benefit of the said provision is to be extended. To cite an extreme example, to illustrate my point of view, in case BARC issues a certificate in favour of a peon employed in its office that he is a Scientific Officer, would it on account of the conclusiveness which is given to it by sub-section (2), come in the way of the Court to hold that he is not a Scientific Officer. In my view, that cannot be the construction that can legitimately be given to the said provision. This would be so even if, as has been pointed out by Shri Abhyankar that, the appointment of the applicant, as is seen from the aforesaid Gazette, is made by the President of India.
20. Shri Nesari placed reliance in the case of Sushilabai Vasudeo and others v. M.S. Dhillon, Chief Record Officer, reported in 1979 MLJ 125, wherein it has been observed that :
"As by explanation 1 to section 13-A1 of the Bombay Rents, Hotel and Lodging House Rates Control Act it has been made clear that for purposes of this section any certificate granted shall be conclusive evidence of facts stated therein, the Legislature has chosen responsible officer like Head of Service or Commanding Officers for performing the duty. The power of authority has to be exercised by those officers on the basis of their satisfaction and not arbitrarily or mechanically nor as a matter of course. Certificate cannot be granted for the mere asking of it. The power of authority to issue certificate has to be exercised after considering relevant material. The power is coupled with duty and the signature of the competent officer is not a mere formality."
Shri Nesari submitted that the certificate issued in favour of the applicant has been issued arbitrarily and mechanically. The applicant is not a Scientific Officer as contemplated by the Legislature. The Deputy Secretary of the BARC has yet issued a certificate certifying that the applicant holds a scientific post. The said certificate has been issued without the application of mind and is contrary to the duties performed by the applicant in BARC.
21. In my view, there is considerable merit in the above contention of Shri Nesari. The certificate describing the applicant as a Scientific Officer is contrary to the duties performed by the applicant in the BARC. The said certificate has been issued casually without due care and caution and without application of the mind. It would, therefore, be open to the Court to ignore the case despite the conclusive effect given to it by sub-section (2) of section 13A-1 Since I have found that the applicant is not engaged in pure and applied research and development in the scientific field in general and nuclear field in particular as contemplated by the legislature, the applicant will not be entitled to the benefit of section 13A-1 despite the issuance of the certificate and despite the conclusiveness of the facts stated therein which is Ought to be given to it by sub-section (2) of section 13A-1
22. In regard to the conclusiveness which is given to the certificate by section 13A1(2) Shri Abhyankar for the applicant relied on the case of
"Since evidence means and includes all statements which the Court permits or requires to be made, when the law says that a particular kind of evidence would be conclusive as to the existence of a particular fact it implies that fact can be proved either by that evidence or by some other evidence which the Court permits or requires to be advanced. When such other evidence is adduced it would be open to the Court to consider whether, upon that evidence, the fact exists or not. Where on the other hand, evidence which is made conclusive is adduced, the Court has no option but to hold that the fact exists. Statues may use the expression ''conclusive proof'' where the object is to make a fact non-justiciable. But the legislature may use some other expression such as ''conclusive evidence'' for achieving the same result. There is thus no difference between the effect of the expression ''conclusive evidence'' from that of ''conclusive proof'' the aim of both being to give finality to the establishment of the existence of a fact from the proof of another."
There can be no dispute about the proposition of law laid down in the above case.
23. However in my view even if the certificate is made conclusive of the facts stated therein, the said certificate can always be vitiated if it is issued mala fide. It can always be challenged on the ground of mala fide or colourable exercise of powers. It has been held in the case of
"A declaration made u/s 6 of the Act and published in the Official Gazette shall be conclusive evidence that the land is needed for a public purpose and that to this rule there was only one exception, namely, that the declaration could be challenged on the ground of mala fide or colourable exercise of power."
Similarly in the case of
"Bad faith which invalidates the exercise of power-sometimes called colourable exercise or fraud on power and often time overlaps motives, passions and satisfactions is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by consideration outside those for promotion of which the power is vested the Court calls it a colourable exercise and is undeceived by illusion."
24. In the case of Chandrakant Trimbak Ghanekar v. Prabhakar Muralidhar Bhagat, reported in 1990 Maharashtra Rent Control Journal page. 407, this Court held that the requirement of section 13A-1 has to be strictly complied with. Certificate produced by the landlord must strictly comply with the requirement of the section. In that case the certificate mentioned that the landlord was a member of the Union Forces and it was held that the same was not equivalent to his being a member of the Armed Forces. This Court set aside the decree passed in favour of the landlord u/s 13A-1 on the ground that the certificate did not strictly comply with the provisions of section 13A-1 In the present case I find that the facts stated in the certificate are contrary to the facts established in the case. The facts established are that the applicant is not a Scientific Officer as envisaged by the legislature for giving of special treatment as compared to other landlords. The applicant is a doctor attached to a dispensary run by the BARC. She does not play a key role in pure and applied research and development in the Scientific field in general or in the nuclear filed in particular. Hence the certificate describing her a Scientific Officer will stand vitiated as having been issued casually and without the proper application of mind. I find that the certificate has been issued in colourable exercise of power. The same is tainted with mala fides and is therefore liable to be ignored.
25. In view of the above, I am clearly of the view that despite the conclusiveness which is given to the certificate, it is not possible to extend benefit of the section 13A-1 to the applicant.
26. This takes me to the second part of the certificate which provides that the applicant is an owner of accommodation at 42, Sindhi Society, Chembur, Bombay-400 071 and she does not possess any other residence in Bombay in her name. The facts are that applicant is a member of the Sindhi Immigrants Co-op. Housing Society Ltd. She is an allottee in respect of the land on which the suit building has been constructed. She however, is not the owner of the entire building as is suggested by the certificate. As already pointed out the first and second floor of the building are owned by her brothers and sisters. She owns the ground floor jointly alongwith her brother, Hiranand. After the arrangement of 31st January, 1988 she claims to be the owner of flat Nos. 3 and 4 of the ground floor. According to her, flat Nos. 1 and 2, have been allotted to the share of Hiranand. She, thus, claims to be the landlord in respect of the suit flat No. 3. In the face of the aforesaid facts, I find that the above certificate which mentions that she is the owner of accommodation at 42, Sindhi Society is far from being accurate. The certificate seems to make no distinction between Sindhi Society and Sindhi Immigrants Co-operative Housing Society Ltd. One does not know whether there exists a Sindhi Society distinct from the Sindhi Immigrant Co-operative Housing Society Ltd. The certificate to this extent is vague. It has been issued casually and without proper application of mind. Similarly, the further recital that the applicant does not possess any other residence in Bombay in her name is also far from true. The evidence in the case clearly shows that the applicant is in possession of flat No. 1- B. It may be that she claims to be in joint possession of the said flat alongwith her brother, Hiranand. Hence the statement that she does not possess any other residence is factually wrong. The said averment is not in compliance with the requirement of section 13A1(b)(ii) which requires a certificate that the landlord does not possess any other suitable residence in the local area where the premises are situate. The suit premises in the present case are situate in Malbar Hill, Chembur, Bombay-400 071, whereas the certificate mentions that the applicant does not posses any other residence in Bombay in her name. I find that the averments contained in paragraph 2 of the certificate are factually incorrect and hence no reliance can be placed on the same. Similarly, the certificate further provides that it has been issued keeping in view of the provisions contained in section 13-A2 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Section 13-A2 relates to the right of the landlord to recover possession of the premises given on licence on the expiry of the licence. The instant certificate is one which is issued to section 13A1(b). A reference to section 13A2 would show that the said certificate has been issued casually, mechanically and without due care and caution. I am, therefore, inclined to hold that the said certificate deserves to be ignored totally. In view of the fact that no reliance can be placed on the certificate, it follows that the present application u/s 13A1 for possession in not maintainable and is liable to be dismissed.
27. This takes me to the last issue that arises between the parties namely the issue regarding bona fide requirement.
28. It can no longer be disputed that this issue has to be decided independently on evidence other than the certificate. The applicant will have to establish her bona fide requirement by leading independent evidence in support of her claim for possession. It has been observed in the case of Shivram Anand Shiroor v. Radhabai Shantaram Kaushik and another, reported in 1984 MLJ 426 : 1984 Bom.C.R. 415 as under :---
"Section 13A1 was enacted relaxing the rigour of section 13 in favour of 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. All that he has to further prove is that he bona fide requires the premises for occupation by himself or any member of his family. The certificate is conclusive proof that he does not possess any suitable residence in the local area, but not that he bona fide requires the same for occupation by himself or any member of his family. There may be cases where he does not possess any other suitable residence in the local area and yet he does not bona fide require the premises for occupation by himself or any member of his family, being comfortably settled elsewhere with no need or pressure to move."
29. It has to be noted that the Competent Authority in the present case has not framed a specific issue in regard to bona fide requirement. Issue No.5 framed by the Competent Authority is as under :---
"Is it proved that the applicant has no suitable accommodation?"
The above issue, as framed, is highly unsatisfactory and does not meet the requirement of section 13A1. What is required to be decided is whether the applicant proves that she bona fide requires the suit premises for her occupation. The applicant in her evidence has stated that she has no independent accommodation and presently she stays with her brother Hiranand and other members of his family consisting of his wife and two college going children. She has further stated that her brother''s wife is resenting her stay with them. She has deposed that her brother''s flat consists of a bedroom, hall, one kitchen, bath and W.C. She has not examined her brother''s wife but has examined her aunt, Sarla Ramchand Nazinal, who has sought to support the applicant when she deposed that her brother''s wife did not like the applicant''s stay in her family. As against the above evidence, it is the case of the opponent that the applicant is residing in an independent flat bearing No. 1-B which was in possession of a tenant Hiranandani. In this connection the claim of the applicant is that since September 1969 she and her brother were the co-owner of the flat Nos. 1, 2, 3 and 4 situate on the ground floor. From January, 1988 she became the sole owner of flat Nos. 3 and 4. She has produced a letter dated 31st January, 1988 issued by the Society informing the applicant that the society had shown Hiranand as owner of the flat Nos. 1 and 2 and the applicant as owner of flat Nos. 3 and 4. She has stated that she cooks separately and has a separate ration card. She has further gone on to state that her brother Hiranand who was at Pune came to occupy the ground floor in February 1980. He occupied part of flat No. 1 on the ground floor. The other part of flat No. 1 was in occupation of one tenant Hiranandani. That part was known as part No. 1-B. Her brother Hiranand was occupying part No. 1A. She admitted that she is residing in flat No. 1-B. It appears that the tenant Hiranandani vacated sometime in the year 1983 and the applicant came to occupy the said flat Np.1-B. Though the applicant has denied that she has been staying independently in flat No. 1-B the said denial is false. It appears that her brother Hiranand has continued to reside in flat No. 1-A even after the tenant Hiranandani vacated flat No. 1-B. After the said Hiranandani vacated it appears that the applicant occupied the said flat No. 1-B and this position has continued from 1983 till the filing of the present application for possession and upto date. It appears that in January 1988 efforts were made to see that flat Nos. 1 and 2 were allotted to the share of the applicant''s brother, Hiranand and flat Nos. 3 and 4 to the applicant. This was sought to be done by addressing a letter dated 19th January, 1988. The same is to be found at Exhibit-13. It has been addressed by all the brothers and sisters of the applicant. It purports to inform the Society that the signatories had decided to divide the property of the ground floor of the building as under :---
1. Flat Nos. 1 and 2 in the name of Hiro Udharam Jagasia.
2. Flat Nos. 3 and 4 in the name of Dr. (Miss) Kanta Udharam Jagasia i.e. the applicant.
A request is made to record the same in the books of the Society. Accordingly the Society passed a resolution dated 31st January, 1988, Exhibit-A12, which recites as under :---
"Resolved unanimously that the joint application dated 18-1-1988 received from Hiro Udharam Jagasia and Dr. (Miss) Kanta Udharam Jagasia for division of their property on plot No. 42, (ground floor) is accepted and recorded as under :---
1) Flat No. 1 and 2 (marked red) belonged to Hiro U. Jagaisa.
2) Flat No. 3 and 4 (marked green) belonged to Dr. (Miss, Kanta U. Jagasia".
30. In my view, the above partition in respect of the ground floor of the building cannot be relied upon for more than one reasons. The said partition is in respect of the Immovable property and cannot be effected without the documents being executed on a proper stamp paper. The said transaction amounts to conveyance as contemplated under Article 25(a) of the Bombay Stamp Act, 1958 and unless the same is accompanied by a stamped document, the same would be inadmissible in evidence. Similarly, the said transaction is in respect of property above the value of Rs. 100/-. It purports to create, declare, assign and limits or extinguish rights in Immovable property of the value of Rs. 100/- and upwards and is liable to be registered u/s 17 of the Registration Act. Since the said transaction is not registered the same will be of no effect. Furthermore the said transaction is not registered the same will be of no effect. Furthermore the said transactions appear to have been actuated with a view to take advantage of the provisions of section 13A-1 The flats which are in actual occupation of Hiranand and the applicant are sought to be allotted to Hiranand and the suit flat which is in occupation of the opponent-tenant is sought to be allotted to the applicant and this appears to have been done mala fide in order to evict the opponent.
31. It would appear that the applicant is in possession of flat No. 1-B independently since after the erstwhile tenant Hiranandani, vacated. No change in circumstances have been brought about since 1983 so as to lead to an inference that the applicant bona fide requires the suit premises for her occupation. The applicant has continued to be single. She has continued in possession of flat No. 1-B since 1983. She could continue to occupy the same without inconvenience. hence it is difficult to hold that the applicant has proved that she bona fide requires the suit premises for her occupation.
32. Once it is held that no effect can be given to the so called partition effected between the applicant and her brother, Hiranand, it would follow that the applicant alongwith her brother Hiranand, is a co-owner in respect of the entire ground floor including the suit flat, being flat No. 3. It would thus appear that the applicant who claims to be holding a scientific post is merely one of the co-owners in respect of the suit flat. A question, therefore, that arises for consideration is whether the benefit of the provisions of section 13A-1 can be extended to a landlord who is merely one of the co-owners in respect of the suit property. In other words, would the benefit of section 13A-1 be available to a number of joint owners or co-owners, where one of them happens to be a member of the armed forces or holds a scientific post. It is to be noted that section 13A-1 provides that a landlord who holds a Scientific post shall be entitled to recover from his tenant the possession of any premises owned by him on the ground that such premises are bona fide required by him for occupation by himself or by any member of his family. In my view, the legislature has advisedly made the said provisions applicable to premises, which are owned by a landlord, who is a member of armed forces or who holds a scientific post. In my view, the ownership which is contemplated in the said section is not the ownership of a co-owner. The ownership which is contemplated is that of sole ownership. Such a landlord can undoubtedly sue for possession for bona fide requirement of himself or of any member of a family. The members of the family that are contemplated are the bona fide members of a family as is understood in common parlance i.e. wife, children, dependent parents etc. This Court while upholding the virus of the said section repelled the challenge in respect of discrimination by stating that the scientists who are sought to be given the benefit of the said provision form a microscopic number. It would, therefore, be reasonable to restrict the application of the said provision to landlords who own the premises let i.e. exclusive ownership as distinguished from joint ownership or co-ownership with persons who are not members of armed forces, who do not hold a scientific post. The claim of the applicant for possession is, therefore, liable to be negatived on this ground also.
33. For the foregoing reasons, I am constrained to hold that the applicant has failed to make out a case of bona fide requirement for possession u/s 13A-1. The impugned judgment and order dated 31st March, 1990 of the Competent Authority granting the applicant''s prayer for possession is, therefore, liable to be set aside and the application of the applicant for possession is liable to be dismissed with costs throughout.
34. Rule is made absolute.
The applicant who is respondent in the present revision application shall pay the costs of the petitioner in the present revision application of both the trial Court as also this Court.
