PENDESE, J. - (1.) THE petitioner is in occupation of a godown on the ground floor of house property bearing City Survey No. 945 situate at Manmad in Nasik District. The petitioner is occupying this godown for over 30 years at a monthly rent of Rs. 50/-. The house belonged to one Thapar and in the year 1973 the property was sold by Thapar to Ramchandra, who is the brother of the respondent. The property was thereafter, transferred by Ramchandra in favour of the respondent-landlord on July 9, 1976. The respondent-landlord filed suit on November 30, 1978 against the petitioner in the Court of the Civil Judge, Junior Division, Nandgaon, for recovery of possession in accordance with the provision of Section 13-A1 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The section was amended subsequently but, for the present petition, the section as unamended is required to be examined to ascertain whether the respondent is entitled to decree of eviction. The section inter alia, provides that a landlord who is a member of the armed forces of the Union, shall be entitled to recover possession of the premises on the ground that the premises are bonafide required by him for his occupation by himself or any member of his family. The section further prescribes that 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 effect that (a) the landlord is presently a member of the armed forces of the Union or he was such member and (b) the landlord does not possess any other suitable residence in the local area where he or members of his family can reside. Explanation (2) to the section provides that the certificate granted shall be conclusive evidence of the facts stated therein.
(2.) THE respondent claiming to be a member of the armed forces sought recovery of possession and at the trial produced a certificate dated December 7, 1978 issued by Major K.D. Kochhar, Officer Commanding of the Postal Unit. The certificate read as under :- "It is to certify that No. 8384075 PND Sub - P.M. Bhagat is member of Union Forces and there is no other residence for his family to stay except one he owns when he is in field." On the strength of this certificate, the trial Court by judgment dated October 14, 1982 passed decree of eviction against the petitioner-tenant and the decree was confirmed in appeal by the 4th Additional District Judge, Nasik by judgment dated April 24, 1987. These judgments are under challenge in this petition filed under Article 227 of the Constitution. Shri Phadkar, learned counsel appearing on behalf of the petitioner, submitted that both Courts below failed to appreciate that the certificate was not in accordance with the requirements of the section and, therefore, decree could not have been passed. Shri Phadkar also submitted that both the Courts below failed to appreciate that mere production of certificate is not sufficient to pass decree in favour of the landlord and it is the bounden duty of the Court to ascertain whether the premises are required bonafide by the landlord. Shri Phadkar complains, and in my judgment very rightly, that the Courts below abdicated their function to ascertain the bonafide requirement of the landlord by assuming that the certificate is conclusive of the claim made by the landlord. Shri Karwande, learned counsel appearing on behalf of the landlord, on the other hand, submitted that the fact that the landlord is a member of the armed forces is not in dispute and was not seriously controverted by the tenant in the written statement. Shri Karwande further urged that the Courts below accepted the testimony of the landlord in regard to bonafide requirement for recovery of possession. The certificate issued by Major Kochhar is entirely defective and does not conform with the requirements of Section 13-A1 of the Rent Act. As mentioned hereinabove, production of certificate is mandatory before the Court can pass decree under Section 13-A1 of the Rent Act. The section is a departure from the normal rule which applies to landlords who had let out their premises and are desirous of recovering possession. This is a special provision for recovery of possession of the premises of landlords, who are members of the armed forces and being an exception to the general rule, the requirements of the section must be strictly complied with. In normal cases, the landlord is required to establish not only that his requirement is reasonable and bonafide but also that greater hardship will be caused to him by refusing to pass a decree than to the tenant by passing the same. It is not necessary under Section 13-A1 for the landlord to establish the issue of hardship. In these circumstances, the certificate produced by the landlord must strictly comply with the requirement of the section and those requirements are that the certificate must specifically recite that the landlord is a member of the armed forces and the landlord does not possess any other suitable residence in the local area where he or members of his family can reside. A perusal of the certificate, Ex. 53 produced in the present case clearly indicates that it is not certified that the landlord is a member of the armed forces but what it recites is that the landlord is a member of the Union Forces. The lower appellate Court very curiously equated the words 'Union Forces' with the words 'armed forces' and observed that there is sufficient compliance with the requirements of the section. It is difficult to understand from where the lower appellate Court found out that the words "Union Forces" are equivalent to the words 'armed forces.' The criticism of Shri Phadkar that the certificate also does not establish that Major Kochhar was Commanding Officer and was authorised to issue the certificate is of considerable merit. Now, Kochhar has signed as an Officer Commanding of Postal Unit and it is not clear whether he is a Head of the Unit or a Commanding Officer. In these circumstances, the Courts below were clearly in error in relying upon the certificate Ex. 53 and proceeding to pass decree in favour of the landlord.
(3.) THERE is more serious infirmity in the decree passed by the two Courts below. The section demands that a lord is entitled to recovery of possession provided the Court is satisfied that the premises are bonafide required by the landlord for occupation by himself or member of his family. It is therefore, obvious that mere production of a certificate is not sufficient for the Court to proceed to pass decree for eviction. A duty is cast upon the Court to ascertain whether a member of the armed forces who has produced the certificate requires bonafide the premises let out to the tenant. This obligation placed on the Court cannot be bypassed by observing that the certificate is conclusive evidence. What Explanation (2) to Section 13-A1 provides is that the facts stated in the certificate shall be conclusive evidence and, therefore, the conclusiveness of the proof must be restricted to the contents thereof and nothing more. The issue as to whether the landlord requires the premises bonafide cannot be concluded by the certificate as the same is required to be determined by the Court and not by the Commanding Officer. Indeed in the present case, the certificate does not even refer to the issue as to whether the requirement is bonafide. The Courts below erroneously proceeded to decree the suit by observing that the bonafide requirement of the landlord cannot be challenged once the landlord produces the certificate. In my judgment the approach of the two Courts below is wholly erroneous and the decree passed against the tenant cannot be sustained.;