P.K.PALLI,J - (1.) THE petition involves interpretation and construction of Section 16 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act'). This provision was inserted vide Section 2 of the Rajasthan Act No. 34 of 1987 and came into force with effect from 22.5.1987.
(2.) THIS section gives a right to a landlord who was a member of the armed forces of the Union, his war widow or his other legal representative to recover immediate possession in certain cases. For facility of reference, this section is reproduced hereunder upto sub-section (12) which calls for interpretation for the purposes of questions involved in the petition :- "16. Right of landlord to recover immediate possession in certain cases - (1) Notwithstanding anything to the contrary contained in this Act or in any other law for the time being in force or in any contract or usage, a landlord who was a member of the armed forces of the Union, his war widow, or his other legal representative shall, on an application being made in this behalf, be entitled to obtain an immediate order of ejectment of the tenant from the premises let out by such member and to recover immediate possession thereof on any of the following grounds, namely :- (a) that he has retired from service (which term shall include compulsory or voluntary retirement) - (i) within a period of one year prior to the date of commencement of the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Act, 1987 hereinafter in this section referred to as the said Act, or, as the case may be, the date of making of such application; or (ii) at any time prior to the commencement of the said Act subject to there being no agreement of lease in writing concerning such premises subsisting at the time of making such application and such premises having not been let out to the present tenant on or after the date of such retirement; and that such premises are required for the use and occupation of himself or his family members; or (b) that she is the war widow of a member of the armed forces of the Union and such premises are required for the use and occupation of such war widow; or (c) that he is a legal representative (not being a war widow) of a member of the armed forces of the Union and such member has died during the course of employment within a period of one year prior to the date of commencement of the said Act or, as the case may be, the date of making such application and that such premises are required for the use and occupation of such legal representative; Provided that where the possession of the premises is so recovered and such premises are not occupied for a period of three months from the date of such recovery for other than bonafide reasons or are again let out within a period of three years from such date the tenant ejected from such premises shall on an application being made in this behalf to the Magistrate making the order of ejectment be entitled to the restoration of possession of such premises to him on the original terms and conditions and the landlord shall be liable to such fine not exceeding two thousand rupees as such Magistrate considers reasonable. (2) Nothing in sub-section (1) shall be construed as conferring a right on a landlord owning in the same city or town two or more premises to recover the possession of more than one of them. The landlord shall in that case indicate the premises of which he intends to recover possession from the tenant. (3) A certificate issued by the Head of the service in which the member of the armed forces was last employed or by is Commanding Officer to the effect that such member or his war widow or his other legal representative requires the premises for the use and occupation of himself or herself or the family members of such member on any of the grounds specified in clause (a) or clause (b) or clause (c) of sub-section (1) shall be conclusive evidence of the facts stated therein. (4)(a) Every application by a landlord for ejectment of his tenant on any of the grounds specified in sub-section (1) shall be made to the District Magistrate having jurisdiction in the area where the premises are situate and it shall contain the following particulars, namely :- (i) the names and particulars of the landlord and the tenant; (ii) sufficient description of the premises from which the tenant is to be ejected; and (iii) the ground of eviction. (b) A copy of the certificate obtained by the landlord under sub- section (3) shall be attached to the application. (c) The application shall be verified in the manner prescribed for verification of a plaint under the Code of Civil Procedure, 1908 (Central Act 5 of 1908). (5)(a) The District Magistrate shall issue notice of every application referred to in sub-section (4) to the tenant fixing a date for his appearance. The District Magistrate shall in addition to and simultaneously with the issue of such notice also issue a notice to be served by registered post, acknowledgement due, addressed to the tenant or his agent empowered to accept service at the place where the tenant or his agent actually and voluntarily resides or carries on business or personally works for gain and may, if the circumstances of the case so require, also direct the publication of the notice in a newspaper having circulation in the locality in which the tenant is last known to have resided or carried on business or personally worked for gain. (b) When an acknowledgement purported to have been signed by the tenant or his agent is received by the District Magistrate or the registered article containing the notice is received back with an endorsement purported to have been made by a postal employee to the effect that the tenant or his agent has refused to take delivery of the registered article, the District Magistrate may declare that there has been a valid service of the notice. (6) The tenant, on whom the notice has been served (whether in the ordinary way or by registered post), shall not be entitled to contest the application for eviction unless he files an affidavit stating the grounds on which he seeks to contest such application and obtains leave from the District Magistrate as hereinafter provided. In default of his appearance in pursuance of the notice or his obtaining such leave, the statement made by the landlord in the application for eviction shall be deemed to have been admitted by the tenant and the District Magistrate shall forthwith make an order for ejectment of the tenant on the ground mention in the application. (7) The District Magistrate may grant to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for ejectment on any of the ground mentioned in sub-section (1). (8) Where leave is granted to the tenant to contest the application, the District Magistrate shall immediately commence the hearing on the application and shall decide it, as far as practicable, within two months of such commencement. (9) If the District Magistrate is satisfied that the ground on which ejectment is sought is correct, he shall make an order for ejectment of the tenant from the premises and for restoring immediate possession thereof to the landlord. If the District Magistrate is not satisfied regarding the correctness of the ground, he shall dismiss the application. (10) If the District Magistrate allows the application and makes an order for ejectment of the tenant, he shall take immediate and suitable steps for the ejectment of the tenant from the premises and for the restoration of possession thereof to the landlord within a period of forty-five days and for that purpose may use or cause to be used such force as may be necessary. (11) No appeal shall lie against an order for ejectment of the tenant made by the District Magistrate under this section : Provided that the District Judge for the purpose of satisfying himself that an order made by the District Magistrate under this section is according to law may call for the record of the case within thirty days of the order and make such order in respect thereto as he thinks fit. (12) Where no application has been made to the District Judge in revision, the District Magistrate may exercise the powers of review in accordance with the provisions of Order 47 of the First Schedule to the Code of Civil Procedure, 1908 (Central Act 5 of 1908)." The petitioner under the abovesaid provision brought a petition for ejectment of the respondent No. 1 on 21.3.1990. This petition has been placed on the record as Annex. 1. Respondent No. 1 in pursuance of the notice appeared before the District Magistrate, Jodhpur who has the jurisdiction under the above said provision to decide the matter. On appearance, respondent No. 1 on 7.8.1990 filed an application for leave to defend under sub-section (6) of Section 16 of the Act which application was refused by the order dated 4.12.1990. A revision was filed against this order before the learned District Judge, Jodhpur which was allowed on 3.8.1991 and leave to defend was granted. Respondent No. 1 thereafter filed a claim to which the petitioner desired to file a rejoinder. The request was allowed by the learned District Magistrate vide the order dated 21.7.1992. This order was also challenged by way of revision before the learned District Judge and the said revision was allowed vide the order dated 5.3.1993 and the same has been placed on the record as Annex. 2.
(3.) VIDE Annex. 2 the learned District Judge gave directions to the learned District Magistrate to hear the application again and then pass a reasoned order. The petitioner raised an objection before the learned District Judge that the impugned order before him was not an order passed under the provisions of Section 16 of the Act and, therefore, he had no jurisdiction to hear the revision petition. The learned District Judge, however, held that the revision was maintainable and that the court had the jurisdiction to hear the same. The petitioner, however, did not challenge the order and after the remand, the matter was heard by the learned District Magistrate and the request of the petitioner to file rejoinder was granted vide the order dated 6.7. 1993 (Annex. 3).;