PARIHAR, J. - (1.) THE petitioner been an ex-armyman filed an application under Section 16 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter to be referred as the Act), before the District Magistrate, Alwar for eviction of respondent No. 2 from his house. THE application was filed on 24. 8. 2000. After service of notices, an application under Section 16 (6) of the Act was filed by respondent No. 2 seeking leave to defend on 21. 12. 2000. It appears that various documents were filed by both the sides to prove their ownership on the land in dispute before the District Magistrate. It was only on 17. 7. 2004 the District Magistrate, for the purpose of ascertaining the legal value and further explanation as to under what circumstances the documents were issued by the concerning Departments in favour of two persons, made UIT, Alwar; Municipal Council, Alwar and Land & Building Tax Department, Alwar, as party to the application and notices were issued accordingly. THE petitioner has challenged the order dated 17. 7. 2004 in the present petition mainly on the ground that in view of provisions under Section 16 of the Act, the District Magistrate should have decide the application for seeking leave to defend on the basis of material already submitted by both the parties. Since a time limit has also been prescribed under the relevant Section for expeditious disposal of such application, the District Magistrate could not have delayed the matter by converting the application into a regular suit for eviction.
(2.) LEARNED counsel for the respondent, on the other hand, submitted that it is the subjective discretion of the District Magistrate to ascertain the correctness of the documents so filed by both the parties before deciding the application seeking leave to defend, as filed by respondent No. 2, moreso, when the tenancy itself has been denied by respondent No. 2. After hearing learned counsel for the parties, I have carefully gone through the material on record as also relevant provisions of the Act. Section 16 of the Act is reproduced hereunder:- " 16. Right to 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 but 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 period of one year prior to the date of commencement of the said Act or, as the case may be, the date of making of 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 Service in which the member of the armed forces was last employed or by his 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, acknowledgment due, addressed to the tenant or his agent empowered to accept service at the place where 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 a. 05. 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 acknowledgment 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 mentioned 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 XLVII of the First Schedule to the Code of Civil Procedure, 1908 (Central Act 5 of 1908 ). " A bare reading of the Section, as reproduced above, would show that a special provision for speedy remedy for eviction has been provided to members of the Armed forces and their family members. The application for ejectment of the tenant is filed before the District Magistrate concerned under Sub-section (4) of Section 16. Notices are issued under Sub-section (5) and after service of notices, the tenant has a liberty to file an affidavit stating the grounds on which he seeks to contest such application and obtain leave accordingly. Under Sub-section (7), the District Magistrate may grant 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 ). It is only after the leave is granted to the tenant to contest the application, The District Magistrate has to commence the hearing on the application and as per provision under Sub-section (8) The District Magistrate may decide the application filed under Sub- section (4) of Section 16 as expeditiously as possible preferably within two months. After due consideration, the District Magistrate has either to accept the application or reject the same. Though there is no appeal provided against the order of ejectment made by the District Magistrate, however, some powers have been given to the District Judge for further deciding the correctness of the order passed by the District Magistrate. Power of review has also been given to the District Magistrate under Sub-section (12) of Section 16 of the Act. Thus, it is evident that the proceedings under Section 16 are only summary proceedings and application under Section 16 cannot be decided as a regular suit. The District Magistrate has only to see that the applicant under Section 16 satisfies the conditions under Sub-section (1) and further if permission to defend is sought by the person on whom the notices have been served under Sub-section (5) of Section 16, the District Magistrate has to grant the permission as per the affidavit and material placed by the alleged tenant. It is only after leave to contest the application is granted, the District Magistrate may decide the matter as per the material available on record. In my opinion, it is only after leave to defend is granted by the District Magistrate, the application under Section 16 (4) can be decided on merits. It also goes without saying that looking to the rival claims of both the parties when even the ownership is being contested and tenancy is denied, the District Magistrate can always reject the application. Since in absence of any detailed procedure provided under the Act in regard to deciding applications under Section 16 as the same been only summary proceedings, the District Magistrate cannot convert the application into a regular suit.
(3.) THOUGH the affidavit seeking leave to defend was filed way back on 21. 12. 2000, however, for one reason or the other, the matter has been kept pending for the last more than four years and even orders on leave to defend application have not been passed so far. A bare reading of the impugned order dated 17. 7. 2004 shows as if the District Magistrate is making an inquiry into the working of the Departments concerned. It is not for the District Magistrate to decide the correctness of the orders passed by the concerned Departments. The main purpose of the Section is to provide speedy remedy of eviction to certain category of persons on limited grounds. If the facts are disputed which require detailed inquiry, the same can be decided only by a competent court in a regular suit. Accordingly, the writ petition is allowed. The impugned order dated 17. 7. 2004 is set aside. The District Magistrate is directed to decide the application seeking leave to defend, as filed by respondent No. 2, on the basis of whatever material available on record within 30 days from the date of receipt of certified copy of this order and in case the leave is so granted, the application under Section 16 (4) may further be decided as expeditiously as possible within 30 days thereafter. There will be no order as to cost. .;