Col. Vijaysinh Gopalrao Ghorpade Vs. Namdeo Yeshwant Chavan - Court Judgment

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[a] bombay rents, hotel and lodging house rates control act, 1947 - section 13-a(1) - eviction - bonafide requirement - petitioner not the owner of the property - no conveyance deed in his favour - held, application for eviction on ground of bonafide requirement of petitioner not maintainable - finding rightly recorded by competent authority.;it is undisputed that the property in question initially belonged to shri b.t. jagtap, the maternal uncle of the petitioner's father. petitioner's father put up a construction, a part whereof is in occupation of the respondent as a tenant. as far as the petitioner is concerned, property is entered in his name in the city survey records merely on the basis of a statement of his father. no conveyance deed either in the form of a sale-deed or a gift deed is executed in favour of the petitioner. similarly, no conveyance has been executed by shri b.t. jagtap in favour of petitioner's father. the property being immoveable property of the value of over rs. 100/- cannot be assigned except by a registered document. in the absence of any such document in favour of the petitioner finding of the competent authority that the petitioner has failed to prove that he is the owner of the property in question cannot be faulted.;[b] bombay rents, hotel and lodging house rates control act, 1947 - sections 13-a(1) & 13(1)(g) - necessity of proving greater hardship - not required to be proved when application for eviction is on basis of bonafide requirement of landlord under section 13-a(1) - only requirement under section 13-a(1) was to prove bonafide requirement and the ownership of the property.;this issue regarding comparative hardship is totally absent in section 13-a(1). hence a landlord described in section 13-a(1) is not required to prove the issue regarding comparative hardship in his favour as is required of a landlord under section 13(1)(g); all that he is required to prove is that he bonafide requires the premises. once he establishes that he bonafide requires the premises he becomes entitled to possession irrespective of the fact whether greater hardship would be caused to the tenant or to him. this is a special provision enacted by amendment enacted in the year 1986 providing for a special right to specified landlords such as members of armed forces and landlords holding scientific posts. such landlords have been conferred with an additional right of claiming possession. they are conferred with a right to claim possession only on their showing that they bonafide require possession of their premises. they are not further required to prove the additional issue of comparative hardship as other landlords are required to prove, this special right however carries a rider, this special category of landlords is further required to be the owner of the premises. whereas a landlord under section 13(1)(g) has merely to establish a relationship of landlord and tenant without being required to establish his ownership to the premises, a landlord under section 13-a(1) is further required to establish that he is also the owner of the premises. - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - the competent authority, in paras 13 to 18 of his judgment, has held that the petitioner has failed to prove that he is the owner is respect of the suit premises. in the absence of any such document in favour of the petitioner finding of the competent authority that the petitioner has failed to prove that he is the owner of the property is question cannot be faulted. (emphasis provided). section 13-a(1) requires two ingredients to be satisfied before an applicant can be said to be entitled to possession. in view of the aforestated facts the petitioner has failed to prove the latter ingredient. this additional ingredient introduced in section 13-a(1) is therefore not an idle formality, the same has been introduced with a purpose and unless the said ingredient is satisfied landlords of this specified category will not be entitled to claim possession. 4. in the instant case, as has been mentioned earlier, applicant has failed to prove that he is the owner of the premises in question.ashok agarwal, j.1. by the present revision application filed under section 31-f(2) of the bombay rents, hotel lodging house rates control act, 1947, petitioner, who is the original applicant, seeks to impugn a judgment and order passed by the competent authority pune division on 3rd of january, 1989 dismissing his claim for possession under section 13-a(1) of the act. the competent authority, in paras 13 to 18 of his judgment, has held that the petitioner has failed to prove that he is the owner is respect of the suit premises. consequently he is not entitled to seek possession under section 13-a(1) of the act. 2. it is undisputed that the property in question initially belonged to shri b.t. jagtap, the maternal uncle of the petitioner's father. petitioner's father put up a construction, a part whereof is in occupation of the respondent as a tenant. as far as the petitioner is concerned, property is entered in his name in the city survey records merely on the basis of a statement of his father. no conveyance deed either in the form of a sale-deed or a gift-deed is executed in favour of the petitioner. similarly, no conveyance has been executed by shri b.t. jagtap in favour of petitioner's father. the property being immoveable property of the value of over rs. 100/- cannot be assigned except by a registered document. in the absence of any such document in favour of the petitioner finding of the competent authority that the petitioner has failed to prove that he is the owner of the property is question cannot be faulted. 3. as far as section 13-a(1) is concerned, it entitles a landlord who is the member of the armed forces to recover possession from his tenant of premises owned by him. (emphasis provided). section 13-a(1) requires two ingredients to be satisfied before an applicant can be said to be entitled to possession. he has to be a landlord and in addition he has to be the owner of the premises. in view of the aforestated facts the petitioner has failed to prove the latter ingredient. the requirement of proving that the applicant in addition to his being a landlord has to further prove that he is the owner of the property, is not an idle formality. the said ingredient has been specially introduced as it seeks to confer an additional ground for recovering possession for a special category of landlords such as members of the armed forces etc. this right is made available only to the landlords who also are the owners of the property in question. section 13-a(1) is significant as contrasted with the provisions of section 13(1)(g) of the act in as much as section 13(1)(g) carries with it the provision of section 13(2) which entitles a landlord to claim possession on the ground of bona-fide requirement only after he is able to establish that greater hardship will be caused to him in case a decree for possession is refused than the hardship that would be caused to the tenant in case decree for possession is passed in his favour. this issue regarding comparative hardship is totally absent in section 13-a(1). hence a landlord described in section 13-a(1) is not required to prove the issue regarding comparative hardship in his favour as is required of a landlord under section 13(1)(g); all that he is required to prove is that his bona-fide requires the premises. once he establishes that his bona-fide requires the premises he becomes entitled to possession irrespective of the fact whether greater hardship would be caused to the tenant or to him. this is a special provision enacted by amendment enacted in the year 1986 providing for a special right to specified landlords such as members of armed forces and landlords holding scientific posts. such landlords have been conferred with an additional right of claiming possession. they are conferred with a right to claim possession only on their showing that the bona-fide require possession of their premises. they are not further required to prove the additional issue of comparative hardship as other landlords are required to prove. this special right however carries a rider, this special category of landlords is further required to be the owner of the premises. whereas a landlord under section 13(1)(g) has merely to establish a relationship of landlord and tenant without being required to establish his ownership to the premises, a landlord under section 13-a(1) is further required to establish that he is also the owner of the premises. the amended provision thus confers a special relief to landlords of the specified category who own their premises and whose bona-fide require possession of their premises. this additional ingredient introduced in section 13-a(1) is therefore not an idle formality, the same has been introduced with a purpose and unless the said ingredient is satisfied landlords of this specified category will not be entitled to claim possession. 4. in the instant case, as has been mentioned earlier, applicant has failed to prove that he is the owner of the premises in question. he will, therefore, not be entitled to claim a decree for possession under section 13-a(1).5. in view of the aforesaid discussion, i find that the rejection of the petitioner's application for possession under section 13-a(1) of the act cannot be faulted. the revision application is, therefore, found to be without merit and the same is dismissed. rule is discharged. there will, however, be no orders as to costs.