An ex-member of the armed forces cannot invoke Section 13A1 of the Bombay Rents Act to recover property acquired post-retirement, ensuring the provision's intended protection against misuse.

JUDGMENT

VENKATARAMIAH, J. :—The principal question for consideration in this appeal by special leave is whether a person who was formerly a member of the Armed Forces can recover possession of a building which was acquired by him after he had retired from the Armed Forces under S. 13-A1 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Act No. 57 of 1947) (hereinafter referred to as the Act) for occupation by himself or any member of his family.

2. The plaintiff Lt. Col. T. E. Ross was formerly serving as a member of the Indian Army and he retired from the military service in the year 1967. The property of which the suit building forms a part originally belonged to his mother-in-law, Mrs. Arcene Parera. She gifted the said property in favour of her daughter, Mrs. Winifred Ross, the wife of the plaintiff on Nov. 9, 1976. The property consisted of some out-houses. The defendant has been a tenant in one of those out-houses for a number of years. The said premises consisted of two rooms and a verandah. On June 6, 1977, Mrs. Winifred Ross gifted the portion in which the defendant was residing as a tenant in favour of the plaintiff. The remaining part of the property acquired under the gift deed executed by the mother-in-law of the plaintiff continued in the occupation of Mrs. Winifred Ross. The gift of only the portion of the property in the occupation of the defendant appears to have been made with the object of taking advantage of Sec. 13-A1 of the Act which was introduced by way of an amendment of the Act in 1975. section 13-A1 of the Act reads thus :

"13-A1. Notwithstanding anything contained in this Act (a) a landlord, who is a member of the Armed Forces of the Union, or who was such member and is duly retired (which term shall include premature retirement) shall be entitled to recover possession of any premises, on the ground that the premises are bona fide required by him for occupation by himself or any member of his family (which term shall include a parent or other relation ordinarily residing with him and dependent on him); and the Court shall pass a decree for eviction on such ground if the landlord, at the hearing of the suit, produces a certificate signed by the Head of his Service or his Commanding Officer to the affect that -

(i) he is presently a member of the Armed Forces of the Union or he was such member and is now a retired ex-serviceman;

(ii) he does not possess any other suitable residence in the local area where he or the members of his family can reside;

(b) where a member of the Armed Forces of the Union dies while in service or such member is duly retired as stated above and dies within five years of his retirement, his widow, who is or becomes a landlord of any premises, shall be entitled to recover possession of such premises, on the ground that the premises are bona fide required by her for occupation by herself or any member of her family (which term shall include her or her husbands parent or other relation ordinarily residing with her); and the Court shall pass a decree for eviction on such ground, if such widow, at the hearing of the suit, produces a certificate signed by the Area or Sub-Area Commander within whose jurisdiction the premises are situated to the effect that -

(i) she is a widow of a deceased member of the Armed Forces as aforesaid;

(ii) she does not possess any other suitable residence in the local area where she or the members of her family can reside.

Explanation 1.- For the purposes of clause (a) of this section, the expression "the Head of his Service", in the case of officers retired from the Indian Army includes the Area Commander, in the case of officers retired from the Indian Navy includes the Flag Officer Commanding-in-Chief, Western Naval Command, and in the case of officers retired from the Indian Air Force includes the Station Commander.

Explanation 2.- For the purposes of this section, any certificate granted thereunder shall be conclusive evidence of the fa