1990 Supreme(MP) 557

IN THE HIGH COURT OF MADHYA PRADESH
S.K. Dubey, J.
Gopal Das – Appellant
Versus
Smt. Prabha Deshmukh – Respondent
C.R. No. 175 of 1987 (G)
Decided On : 19-04-1990

Headnote:(1) Accommodation Control Act, 1961 (M.P.) – S. 23 – A and 23 – J(i) – retired landlord acquiring accommodation after retirement – cannot avail special provisions for evicting his tenant.

       (2) Accommodation Control Act, 1961 (M.P.) – S. 23 – J(i) and 23 – A – Accommodation Control (Amendment) Act, 1985 (M.P.) – S. 9 – retired landlord acquiring accommodation after retirement – cannot avail special provisions for evicting his tenant – case should be transferred to civil Court.

        Short Note

       1. During the pendency of this revision, the landlord Shankarrao has died and his legal representatives have been brought on record.

       2. The short contention raised by Shri B.S. Agrawal, learned counsel for the petitioner/ tenant, is that the Rent Controller was having no jurisdiction to entertain the application and pass the order of eviction, because Shankarrao retired from government service on 30.6.1958 and the suit accommodation was purchased by him on 12.1.1961, a retired government servant who acquired property after his retirement, is not entitled to invoke the special provision under section 23 – A of the Act. Reliance was placed on a Division Bench decision of this Court in case of B. Johnson vs. C.S. Naidu, 1985 JLJ 793, wherein the case of the Apex Court in Winifred Ross vs. Ivy Fonseca, AIR 1984 SC 458 was relief on. Shri Agrawal also placed reliance on two short – noted decisions of this Court C.R. No. 319/1985 decided on 1.10.1986 in Ramesh Chandra vs. Madhavrao, 1987 (1) MPWN 51 and Omprakash vs. Moolchand, 1989 (1) MPWN 189.

       3. Shri K.K. Lahoti, learned counsel for the respondent, disputed the position and supported the order of the Rent Controller, contending that section 23 – J was incorporated in the year 1985 and before that section 23 – A was in force, whereby any landlord who wanted an order of eviction on bona fide requirement could have approached the Rent Controller, therefore, the Rent Controller was right in passing the order of eviction.

       4. After hearing the learned counsel, I am of the opinion that the contention of Shri Lahoti cannot be accepted. It is true that section 23 – A came into force in the year 1983, but, thereafter, the Act was further amended by M.P. Accommodation Control (Amendment) Act, 1985 (No. 7 of 1985), which came into force from 27.4.1985. By this amendment, the Jurisdiction of the Rent Controller was limited down to consider the applications of those landlords who are specified under section 23 – J only and the cases of other landlords who do not fall within the definition of section 23 – J by implication, stood transferred to the Civil Court by virtue of the provision made under section 9 of the Amendment Act (No. 7 of 1985). But, the instant case was not transferred to the Civil Court on the ground that the landlord was a retired government servant and hence, the Rent Controller has got jurisdiction to dispose of the application. It is not disputed that the landlord was a retired government servant, it is also not disputed that the suit accommodation was acquired by him after his retirement. For invoking the jurisdiction of the Rent Controller on an application under section 23 – A of the Act for an order of eviction, the landlord must be a retired servant of any government, including a retired member of Defence services as specified in section 23 – J(i) of the Act. At the time of his retirement, Shankarrao was not a landlord, as he acquired the suit accommodation long after his retirement, there was no relationship of landlord and tenant between him and the petitioner, and the relationship of landlord and tenant came into existence in 1961, when the suit accommodation was purchased by the retired government servant. In such a situation, when the property was acquired after retirement, such a landlord cannot fall within the definition of landlord under section 23 – J(i) or in any of the other categories specified in that section. This Court in case of Ramesh Chandra vs. Madhavrao (supra), in a similar situation after placing reliance on B. Johnson vs. C.S. Naidu (supra) and Winifred Ross vs. Ivy Fonseca (supra), has held that the special provision in section 23 – J confers benefit only on those retired persons who were landlords while in service and can avail of the benefit after retirement in respect of tenancy subsisting during the service of such landlords. In Om Prakash vs. Moolchand (supra) a learned Single Judge of this Court has taken the similar view that the landlord who purchases the accommodation after his retirement and lets it out to the tenant, cannot be termed as landlord specified in section 23 – J for invoking the jurisdiction of the Rent Controlling Authority.

       5. In view of the settled position, I am of the opinion that the Rent Controller exceeded his jurisdiction in not transferring the pending application to the civil Court and deciding the same by himself. In fact, the Rent Controller in a situation like this, ought to have transferred the pending application to the civil Court of competent jurisdiction under section 9 of the Act (No. 7 of 1985). 1985 JLJ 793, AIR 1984 SC 458, 1987 (1) MPWN 51 and 1989 (1) MPWN 189 relied on. Revision allowed.