TEHMRAS KHARODI Vs. TEHAMTAN M. THANEWALA

JUDGEMENT

(1.) THE Defendant/tenant has preferred this second appeal against the judgment and decree dated 4th September, 1984, passed by Seventh Additional Judge to the Court of District Judge, Indore, in Civil Appeal No. 20 -A/1983, confirming the judgment and decree of eviction passed under Section 20 -AA of the M. P. Accommodation Control Act, 1961 (for short, the 'Act'), on 23 -2 -1983, in C.S. No. 108 -A/1982 by Fifth Civil Judge, Class 11, Indore.

(2.) BRIEF facts leading to this appeal are: The Appellant/Defendant is a tenant of the suit accommodation (house) on monthly rent of Rs. 45/ -. The Plaintiff/Respondent on 11 -3 -1982 instituted a suit and claimed a decree for eviction under Section 20 -AA, which was inserted in the Act from 7 -4 -1981, by M. P. Accommodation Control ( Amendment ) Act, 1981. The Plaintiff as a retired Government servant, claimed possession of the suit -accommodation on the ground that at the time of retirement, i.e., on 31 -8 -1980 the Respondent Was employed in M. P. Electricity Board (for short, 'MPEB') and was holding the post of Mains Inspector, that the said post was held by him in public service in connection with the affairs of the State and that the suit -accommodation is "bona fide" required by him for the benefit of his son Rohinton and that there is no other alternative suitable accommodation available in the local area of Indore. A certificate No. 230/DE/W, dated 1 -12 -1981, as required under Section 20 -AA of the Act, issued by the Controlling Officer, Shri V.K. Agrawal, Divisional Engineer, West City Division, MPEB, Indore, was produced. The Appellant denied all the allegations, the genuineness of the certificate was denied. The Defendant resisted the claim under Section 20 -AA of the Act that the Plaintiff is not a retired Government servant; as such, the special provision for recovery of possession under Section 20 -AA cannot be invoked by the Plaintiff for seeking eviction. On production of the certificate, which was considered as a conclusive evidence of the facts stated therein, without recording any evidence, the trial Court decreed the suit of the Plaintiff for eviction of the Defendant from the suit -accommodation. The Defendant preferred an appeal against the said judgment and decree. In appeal, the Court held that the MPEB is an authority under Article 12 of the Constitution of India, and, according to the Notification published in M.P. Rajpatra , dated 27 -9 -1961 the Respondent was categorised and shown in Combined Gradation List as Field Officer in the Electricity establishment of Electricity Department of Government of Madhya Pradesh, and the Controlling Officer has issued the certificate, which is a conclusive evidence of the facts stated therein, hence, the decree was rightly passed. The Defendant, aggrieved of the said judgment and decree of the Court below, has preferred this second appeal, which was admitted by this Court on 12 -10 -1984 on the following substantial question of law: Whether the Appellant being an ex -employ(e of the M.P.E B., the provisions, of Section 20 -AA of the M P. Accommodation Control Act are not attracted ?

(3.) DURING the pendency of this appeal, the Appellant filed a petition, being M.P. No. 653/1985, under Article 226 of the Constitution of India challenging the vires of Section 20 -AA of the Act. A Division Bench of this Court, while dismissing the said petition on 19 -7 -1985, observed that as the Petitioner has availed the remedy of second appeal and the question of vires of Section 20 AA having been raised therein, there is no occasion to interfere in writ jurisdiction and a prayer for framing a substantial question of law to that effect may be made in the second appeal. The Appellant on 13 -10 1987 filed an application to that effect, but at the time of hearing the prayer For Framing and deciding the substantial question of law regarding vires or the provisions of Section 20 -AA was not pressed. The Appellant also filed I. A. No. 179/1989, dated 7 -1 -1989, under Order 6, R. 17, CPC, for amendment of the written statement. This application was opposed by the Respondent. The Respondent filed application and 13 documents to clarify his position that he was appointed to a public service or post in connection with the affairs of the State. Initially, the Respondent was employed in the Electricity Department of the Government of Madhya Pradesh and after the constitution of MPEB under the provisions of the Electricity (Supply) Act, 1948, his services were transferred from 1st June, 1957. to MPEB. The Appellant opposed the application contending that the Gazette Notifications relate to the period before the transfer of services of the Respondent to MPEB. which show the placement of the Respondent in the Gradation List, the pension related to the share of the Govt. for the period of services rendered by the Respondent in the Electricity Department of the Government of Madhya Pradesh. The Appellant also made a prayer that the Respondent be directed to produce his service records with regard to pension, option exercised by the Respondent at the time of transfer or absorption, that is, whether he elected to be an employee of the MPEB or of the Government. The Appellant also filed on 24 -3 -1989 reply to the clarification made by the Respondent. This was supported by an affidavit and two documents issued by the MPEB -one dated 10 -10 -1958 relating to increment of the" Respondent and another dated 30 -8 -1980 by which the Respondent was retired and relieved by the MPEB on attainment of the age of superannuation. Shri A. K. Chitale, learned Counsel for the Appellant, contended that the special provision under Section 20 -AA of the Act is in the nature on a draconian law, as merely by filing a certificate issued by the Controlling Officer of the retired Government servant, a decree for eviction can be passed; therefore, the provisions of Section 20 -AA are to be interpreted strictly and when a case is made out by a retired Government servant, the Court has to pass a decree only on the production of the certificate granted by the Controlling Officer, which is conclusive evidence of the facts stated therein. A tenant of such a landlord has no opportunity to meet the case or to raise any defence about the facts stated in the certificate. In the present case, the Respondent was not a retired Government servant and was employed in MP EB, a corporate body created by a statute; though it may be an authority for the purposes of Article 12 of the Constitution, the employee of such a corporate body cannot be said to be a Government servant, and, on retirement, he cannot invoke this special provision. Learned Counsel submitted that ex -facie the certificate issued by the Controlling Officer is not in relation to a retired Government servant, nor the Controlling Officer is an officer of the State Government, drawing the salary of the retired Government servant mediate before his retirement. Learned Counsel in support of his contentions cited Supreme Court decisions and a Division Bench decision of this Court. He also made a reference to Stroud's Judicial Dictionary, 5th Edn., p. 2101, which gives the meaning of "public service," and referred to the provisions of M.P. Civil Services (Classification, Control and Appeal)Rules, 1966, where the term "Government servant" has been defined It was submitted that for interpreting Section 20 -AA, Clause (a) cannot be read in isolation; the whole Section, if read, clearly shows the intention of the legislature that the provisions can be invoked only by the landlord who is a retired Government servant who, before his retirement, was appointed to a public service or post in connection with the affairs of the State. Shri S. D. Sanghi and Shri R. G. Waghmare, learned Counsel for the Respondent/Plaintiff", made their assiduous submissions and contended that the provision has been enacted to provide benefit to a person who was appointed to a public service or post in connection with the affairs of the State and is duly retired The Respondent as a retired Government servant. Though the MPEB is a statutory Corporation, and not a department of Government, it cannot be denied that the functions performed by the MPEB are governmental functions which have to be performed by the Government or any other instrumentality of the Government for rendering public service. Therefore, even if the Respondent is not regarded as a retired Government servant in the sense that he was not drawing his salary from the public exchequer, he is none -the -less to be regarded as a person who was engaged in public service carried on by instrumentality of the State Government, which was charged by law for rendering public service In the main provisions, i.e. Clause (a) of Section 20 -AA the words "Government servant" is not used anywhere; therefore the main provision clearly indicates that its object is to give benefit of the Section to a person appointed to a public service or post in connection with the affairs of the State, and a bare reading of Clause (a) of Section 20 -AA shows that no distinction can be drawn between a retired Government servant and a person "appointed to a public service or post in connection with the affairs of the State." It was also contended that the Court should not interpret a provision of law so as to defeat the intention of the legislature. Heading of a Section or marginal notes or other provisions of the Section cannot be read so read the words "retired Government servant" in the main section, when this expression has not been intentionally used. It was also contended that subsequent legislation cannot be looked into for putting a construction on earlier enactment, even if the earlier Act is ambiguous. Black's Law Dictionary, 5th Edn., p. 1108, was also cited for the meaning of the words "public service." It was contended that as the certificate granted is conclusive evidence of the facts stated therein, the decree passed by the Courts below was right. Reliance was placed on Mandakini v. Sushil Jain, 1983 MPLJ N 38. Learned Counsel for the Respondent, in support of their submissions cited a catena of decisions of the apex Court and of High Courts. Before dealing with the question involved it will be useful to reproduce the relevant provision which came into force from 7 -4 1981: