A.K. Gohil, J.
1. Applicant-tenant has filed this civil revision under Section 23E of the Accommodation Control Act, against the order dated 18-3-99, passed by the Rent Controlling Authority, Indore, in Eviction Case No. A-9(7) 13/99, allowing the application of the landlord/non-applicant No. 1 and directing the applicant to vacate the suit premises within a period of two months.
2. Brief facts of the case are that the applicant is a tenant of non-applicant No. 1 in one shop consisting of two rooms, situated at House No. 39, Bakshi Gali, Ward No. 45, Indore, and doing the business of selling vegetables in wholesale, since last 20 years. The accommodation is non-residential, the tenancy is oral. This is not in dispute that the applicant is a tenant in the disputed accommodation for the last 40-50 years and initially the rent was Rs. 16/-, which was subsequently enhanced from time to time and at present the same is Rs. 100/- p.m. from the year 1994.
3. The non-applicant/landlord is a retired Government servant. He was working as Assistant Engineer in the Department of Public Health Engineering. He retired from service on 31-3-98 and after retirement he filed an application under Section 23-A (b) of the Accommodation Control Act for eviction against the applicant-tenant, on the ground that he is the owner of the suit premises and after retirement he wants to start his business of grocery in the tenanted premises and that he is not having any other suitable accommodation of his own in the city or town concerned. It was further alleged in the application that he is enjoying good health and also having the necessary funds for starting the said business of grocery.
4. Leave to contest for eviction was granted by the Rent Controlling Authority. The applicant-tenant filed the reply, in which it was alleged that he was tenant of the previous owner, Shri Murlidhar Vaidhya and he is in occupation of the suit shop for the last 40-50 years; initially the rent was Rs. 16/-p.m., which was increased to Rs. 35/-, then from Rs. 35/- to Rs. 40/- and again from Rs. 40/- to Rs. 100/- p.m. In the reply, it was also denied by the applicant/tenant that the premises is required bona fide by the non-applicant/landlord for starting his business of grocery. Even, the fact of retirement from Government service was also denied. It was further denied that the non-applicant/landlord is not having any other suitable accommodation of his own in the city or town for starting the said business. It was also stated that the wife of the non-applicant is having one three storeyed house, situated at House No. 234, Vishwakarma Nagar, Indore and she has also let out the ground floor to the Indian Post & Telegraph Department for running a Post Office. It was further alleged that the non-applicant/land lord wants to enhance the rent of the premises to Rs. 1,000/- p.m. and after getting it vacated, wants to lease out on 'Pagdi'. It was also alleged that his need is also not bona fide on the ground that a person after retirement from the post of Assistant Engineer will run a grocery shop.
5. On the pleadings of the parties, the following issues were framed by the Rent Controlling Authority:--
(i) Whether the requirement of the disputed accommodation was bona fide ?
(ii) Whether the non-applicant/landlord is not having any other alternative accommodation ?
(iii) That, in the light of issue Nos. (i) & (ii) for what relief the non-applicant/landlord is entitled ?
Thereafter, on 11-11-98, the statement of (P.W. 1) Ashok was recorded on behalf of non-applicant/landlord, while on 25-1-99, the statements of D.W. 1 Mohammad Umar, D.W. Mohammad Yasin & D.W. 3 Abdul Karim were recorded on behalf of the applicant. Ex, P-l is the copy of the retirement order of the non-applicant, Ex. P-2 is the copy of notice, Ex. P-3 is the postal acknowledgment, Ex. P-4 is the reply to the notice and Exs. P-5 and P-6 are the rent receipts. The learned Rent Controlling Authority, after appreciation of the evidence, on the basis of the admission of the applicant-tenant himself that in the House No. 39, Bakshi Gali, Indore, except the suit shop, no other shop is available and further found that the tenant has also admitted this fact that in the house situated at Vishwakarma Nagar, which is in the name of the landlord's wife, there is only one shop on the ground floor, in which Post Office is the tenant and in the remaining two storeys of the house tenants are residing. Therefore, there is no other vacant accommodation available in the aforesaid house as well.
6. The Rent Controlling Authority, after appreciating the evidence, came to the conclusion that in the two houses; one belongs to the non-applicant and another, in the name of his wife, there is only one shop, in which the applicant is the tenant. It was also found by the Rent Controlling Authority that the requirement of the non-applicant/landlord for his business purposes is bona fide and he is not having any other alternative accommodation of his own and this objection cannot be considered that a Government servant retired from high office cannot run a grocery shop. The Rent Controlling Authority has rejected this objection of the applicant/tenant that the tenant is a partnership firm in the name of M/s Ismile Mohammad Umar & Co., and since all the partnership have not been joined as parties, the application suffers from non-joinder of necessary parties. The Rent Controlling Authority rejected this objection, because in the reply of notice (Ex. P-4), given on behalf of the applicant, no such plea was taken and, therefore, it was found that the objector himself has projected as tenant in reply of the notice and this admission cannot be taken back. It was further found that no such objection was raised in the written reply that the firm is the tenant and not the applicant, The Rent Controlling Authority further rejected the objection of the tenant that the landlord wants to enhance the rent, as there is conflicting evidence on the point as to when these talks had taken place about the enhancement of rent and on these grounds the objection was rejected and the application of the non-applicant was allowed with a direction to handover vacant possession of the suit premises, within a period of two months and a compensation equal to two years' rent, amounting to Rs. 2,400/- was also directed to be paid to the tenant. Aggrieved against the said order the applicant-tenant has filed this revision.
7. I have heard Shri P.K. Saxena, learned Senior Advocate for the applicant and Shri G.M. Chaphekar, learned Senior Advocate for non-applicant No. 1, perused the record and considered the rival submissions of the parties.
8. Shri Saxena, today, filed an application for adding one more ground in the memo of revision, which was allowed. He vehemently argued and assailed the impugned order firstly on the ground that the Rent Controlling Authority has not considered the question of bona fide requirement; secondly, he has also not considered that the tenant is the firm, which was not made as a party. Availability of alternative accommodation in the shape of another house, in the name of his wife and fact of enhancement of rent from time to time were also not considered in its proper perspective. By adding new ground learned Counsel for the applicant submitted that the non-applicant having succeeded to the property from his father cannot be said to be a landlord for the purposes of Section 23-J of the M.P. Accommodation Control Act (hereinafter referred to as the 'Act of 1961'), because it would hit by Article 14 of the Constitution of India and lead to a discrimination on the question of choosing the forum. Learned Senior Advocate further submitted that the purpose of making this law is to give benefit to the retired persons for residential accommodation and not for the non-residential accommodation, as the contingency of service is only for residential accommodation, therefore, such a landlord should file regular civil suit and cannot be permitted to file an application under Section 23-A under the special provisions, because these special provisions would not be applicable to the properties acquired in succession. His further submission was that this Court in its revisional jurisdiction can strike down the law, which is discriminatory and oppose to the public policy as enshrined in Article 14 of the Constitution of India.
9. In support of his submissions firstly he has placed reliance on a Division Bench decision of this Court in the case of Ranjit Narain v. Sumitradevi, reported in 1994 (7) M.P.J.R. 271, and drew my attention on Paragraph 13 of the same, in which it is held that "in the generality of such servants, transfer is an incident of service and this factor may inhibit meritorious candidates entering from services. Meritorious candidates may own buildings or they may construct buildings while in service, if they arc to face the prospect of not securing possession of their building at the time of retirement or their posting in places where the buildings are situated. They may render the employment unattractive. Shri Saxena submitted this citation in the light of the submissions that a retired servant should not be allowed to take the advantage of the special provisions for the non-residential accommodation and these provisions should be read only for the residential accommodation. He has further placed reliance on a Division Bench decision of this Court in the case of B. Jonson v. C.S. Naidu, reported in AIR 1986 MP 72, in which the validity of amendment in the Accommodation Control Act was under challenge. He also cited a Full Bench decision in the case of Ashok Kumar Shivprasad Venna v. Babulai, reported in 1998 (1) M.P.L.J. 461, and submitted that the Full Bench has also held that the landlord covered by Section 23-J is also entitled to approach Ordinary Civil Court in the matter of claim, on the basis of bona fide requirement or on any other ground mentioned in Section 12 of the Act of 1961. Thereafter, his submission was that when this option has also been granted to the landlord covered by Section 23-J to approach the Ordinary Civil Court, then in such a situation when the landlord has received the property in succession normally he should go to the Civil Court instead of availing the special remedy under Chapter III-A of the Act.
10. His further submission was that in the case B. Jonson (supra) this question was not under consideration before the Division Bench that if a landlord receives property under succession is entitled to invoke the provisions of Chapter III-A. He also placed reliance on a decision in the case of Rahabhar Production Pvt. Ltd. v. Rajendra K. Tandon, reported in AIR 1998 SC 1639, and drew my attention at para 8 of the same in which it has been held that "The Act is thus beneficial as also restrictive in nature". The Courts are, therefore, under a legal compulsion to harmoniously read the provisions of the Act so as to balance the rights of the landlord and the obligations of the tenants towards each other.
11. His last submission was that the Revisional Court is fully empowered to examine the correctness of the findings not only on the question of law, but also on the question of fact and in support of this contention he cited two cases : one M.S. Jahid v. K. Raghvan, reported in AIR 1999 SC 219 and the another Deenanath v. Pooranlal, reported in Judgment Today 2001 (5) SC 380, on the point that the Court is duty bound to examine not merely requirement of landlord as pleaded in eviction petition, but also whether any reason able suitable non-residential accommodation, in his occupation, is available in the city/town and the need should be pressing. It was further held that the High Court in revision is obliged to test the order of the rent controller on the touch stone of 'whether it is according to law ?'
12. In reply, Shri G.M. Chaphekar, learned Senior Advocate, appearing for the non-applicant/landlord submitted that the provisions of Section 23-A are very clear and there is no scope for their interpretation. The legislature has already provided a right to the landlord, as defined under Section 23-J, to get the tenanted premises evicted, on the ground of bona fide need from residential as well as from non-residential accommodations. Therefore, when the legislature itself has enacted such a provision, the vires of the same cannot be challenged in a Civil Revision, filed against the order of Rent Controlling Authority.
13. His further submission, in reply, was that the Full Bench decision in the case of Ashok Kumar Verma (supra) has held that it is the choice of such landlord whether he wants to avail a special forum created under Section 23-A of the Act and under this choice the non-applicant is legally entitled to exercise the same. In reply to this argument that the benefit of the provision of Chapter III-A is not available to the landlords, who have acquired the property in succession, his reply was that there is no force in such argument, under Section 23-J landlord has been defined, who can file application under Section 23-A and if the present non-applicant/landlord comes within the purview of the definition of landlord he can certainly and legally be entitled to get the benefit of the provisions of Section 23-J. He further submitted that there is no force in this submission that the provisions of Chapter III-A shall not be applicable on the landlord, who has succeeded to the property from his father. His further submission was that under the revisional powers this Court can certainly correct the finding of fact, but in this case there is nothing like perversity or error of fact and law, which requires correction.
14. His further submission was that the non-applicant is not much educated and he is simply a diploma holder and he can run the business of grocery in the suit shop, which is suitable for that purpose as he is having various family liabilities and the increase of rent has nothing to do with the demand of higher rent, which the applicant could not prove as the rent was lastly increased in the year 1994 and during last 50 years it was increased only from Rs. 16 to Rs. 100/-. Therefore, no case for interference is made out in the impugned order by the applicant/tenant. The non-applicant is not having any alternative accommodation of his own. The another house held by his wife also cannot be said to be the alternative accommodation of the non-applicant. Thereafter, his last submission was that the case laws cited by the learned Counsel for the applicant and the arguments built up has no force and the revision is liable to be dismissed.
15. Having heard the learned Counsel for the parties I am not able to be persued myself to consider this submission of the learned Senior Advocate, Shri Saxena that in a revision like this, this Court/Single Judge is having jurisdiction to decide the vires of Section 23-A (b) of the Act and to hold that the aforesaid provisions of Chapter III-A, Section 23-A (b) are ultra vires to the Constitution and also opposed to Article 14, because under the M.P. High Court Rules a Single Judge sitting in revision roster cannot decide a question of vires of any statute or any order or Rule or Regulations made under any statute, as is clear from Rule 1 of Chapter 1 of Section 1 of the M.P. High Court Rules & Orders. Such a petition can only be entertained, heard and decided by a Division Bench.
16. So far as the second limb of his argument is concerned, the same is also concluded by the decision cited by himself in the case of B. Jonson v. C.S. Naidu (supra), in which validity of the amendment made in the M.P. Accommodation Control Act, 1961, by the two Amending Acts, namely M.P. Accommodation Control (Amendment) Act, 1983 (M.P Act No. 27 of 1983) and M.P. Accommodation Control (Amendment) Act, 1985 (M.P. Act No. 7 of 1985) and by that amendment a new Chapter III-A has been inserted in the Principal Act, in order to provide for eviction of tenants on ground of bona fide requirement containing under Sections 23-A to 23-J was under challenge. In that case the Division Bench of this Court, considering all the aspects and arguments, has held, thus:--
"The landlords specified in Section 23-J belong to a special category distinct from the remaining landlords, who deserve the benefit of the special procedure on account of their need being more pressing and the handicap from which they suffer as compared to the amendment being to provide for expeditious trial of eviction cases on the ground of bona fide requirement of the landlord. Confining this benefit only to these categories of the landlords specified in Section 23-J, on account of the greater handicap from which they suffer as compared to other landlords, after taking into account the misuse of the special procedure by certain landlords not falling in these categories, indicates a reasonable nexus of the classification with the object sought to be achieved by the legislature. AIR 1984 SC 967 Foll."
"The provisions contained in Section 23-A to Section 23-1 are substantially similar to those of the Dehli Act, which were upheld as valid and not violalive of Article 14 of the Constitution, in Kewal Singh's case (AIR 1980 SC 161)."
"It is, therefore, manifest that if the legislature considered in its wisdom to confer certain rights or facilities on the tenant, it could, due to changed circumstances curtail, modify, alter or even take away such rights or the procedure enacted for the purpose of eviction and leave the tenants to seek their remedy under the common law."
17. Since all the questions as also the object and purpose of making law were considered and the validity of law was upheld in that case, I do not think that there is any scope to reconsider the same in this revision. Benefit to retired persons for eviction from residential accommodation as well as from non-residential accommodation is a question of wisdom of the legislature. The legislature has provided this benefit to the retired persons. The forum is for the benefit of landlord defined under Section 23-J and the classification is not hit by the equality clause as epitomised under Article 14 of the Constitution of India, Again, the Full Bench of this Court has, in Kunjulal Yadu v. Parasram Sharma's case, reported in 2000(3) M.P.H.T. 355 = 2000 (2) M.P.L.J. 514, gone a step forward in holding that a retired Government servant, who acquires accommodation after his retirement and lease it out to a tenant, is entitled to invoke Section 23-A of the Accommodation Act. Thus, in the light of aforesaid decision, at this stage, in this revision, there is no scope to consider the question, which has been raised by the learned Counsel for the applicant.
18. The another question posed by Shri Saxena, Senior Advocate is that the non-applicant having succeeded to the property from his father cannot be considered to be a 'landlord' for the purpose of Section 23-J. This argument may be attractive, but carries no legal weight in the light of clear provision of Section 23-J, in which 'landlord' has already been defined supplementing and putting a rider in clause (b) of Section 23-A - 'if he is the owner thereof. In relation to the accommodation held by the tenant for non-residential purposes, there may be various modes to acquire ownership, it may be by succession, it may be by declaration by the Court, it may be by registered instrument or in any other manner permitted under the law a person may acquire ownership rights in the properly, therefore, the legislature has already provided a special rider and protection under sub-clause (b) "if he is owner thereof for non-residential accommodation. Hence this argument that it is not applicable to the cases covered under succession, according to me, is quite foreign as the existing provision of law has to be interpreted as it is without adding or omitting anything therein. The word 'ownership' has to be read in a wider sense in the present context, which includes the property or accommodation acquired by any mode, which means if a person having ownership of the property on the day of filing application irrespective of any mode of acquiring the same, the intention of the law is that he is the owner of the same and, thus, entitled to take the benefit of the same.
19. Under Chapter III-A of the Act of 1961 special remedy has been provided and every person included in the category of 'landlord' under Section 23-J is entitled to get benefit of this provision and may file an application for eviction.
20. To advert on the question, what is required under Section 23-A by the Authority to consider is whether a person, who has filed an application, falls within the category of 'landlord' under Section 23-J and whether he fulfils the requirement of Section 23-A ? In the case in hand the non-applicant is a retired servant of the State Government, who has produced and proved the certificate of retirement (Ex. P-1) and, thus, according to me, the non-applicant, being a retired Government servant, is entitled to invoke provisions of Chapter III-A of Section 23-A and, thus, his application was rightly entertained. As per the mandate of sub-clause (b) of Section 23-A the non-applicant had to prove before the Rent Controlling Authority that the accommodation let for non-residential purpose is required bona fide, by the landlord for starting his business 'if he is the owner thereof and that the landlord has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned. For consideration of this statutory mandate I have examined the evidence on record. The Rent Controlling Authority has held that admittedly the non-applicant is the owner of the accommodation and the same was not challenged and is not having any other alternative accommodation of his own in the city and the house, owned by his wife, is also not vacant. Though, it was not necessary for the Rent Controlling Authority to consider the accommodation held by the wife as an alternative accommodation for the husband. The Rent Controlling Authority has also considered the admission of the applicant-tenant that the landlord is not having any alternative suitable accommodation. Whatever he is having, that is Kotha and not the shop. Therefore, this finding of the Rent Controlling Authority is based on admission of the tenant himself and also on the appreciation of evidence. Therefore, legal mandate is fully complied and I do not find any case for interference therein.
21. As regards the question of starting his business by the non-applicant/landlord, the Rent Controlling Authority has recorded a finding that after retirement the applicant wants to do business of grocery in the disputed shop. This finding is also based on the evidence on record. The shop is situated in the fruit market. The applicant-tenant himself filed photographs, which shows that the shop is suitable for doing the business of grocery. Shri Saxena, learned Senior Advocate objected that the area is not suitable for such a shop, but in the area like fruit market grocery shop can certainly be started. This objection of Shri Saxena is also having no force that a Diploma holder, who has retired from Government service as Assistant Engineer cannot run a grocery shop. Admittedly, it is a business area and if the applicant is having family liabilities after retirement, he can enter into any business unless prohibited by law. The non-applicant has already stated on oath that he wants to start business of grocery and for that he is also having funds and also enjoying good health. Therefore, there is nothing contrary on record to disbelieve this statement of the applicant.
22. This contention of Shri Saxena, learned Senior Advocate that the landlord only wants to enhance the rent, also has no force, because the Rent Controlling Authority has already given a finding that the applicant could not prove that the fact of enhancement of rent. In this connection this explanation of Shri Chaphekar, learned Senior Advocate appears to be more reasonable that during the last 50 years the rent was increased from Rs. 16/- to Rs. 100/-and lastly the rent was increased in the year 1994. Therefore, in the absence of any cogent and reliable evidence on record it cannot be presumed that the intention of the non-applicant is to get the rent enhanced or Pagdi and not to do any business. All the aforesaid circumstances on record clearly prove the case of the non-applicant/landlord about his bona fide need.
23. In view of the aforesaid discussions and in the facts and circumstances of the case, the Rent Controlling Authority has rightly allowed the application of the non-applicant and after scrutiny of the evidence and legal position, as mandated under Chapter III-A, I am of the view that no case is made out to interfere in this revision and there is no scope too for the same. Accordingly, this revision fails and is hereby dismissed.