judgement:
No. 7338 of 1981.
(Under Article 32 of the Constitution of India).
Ram Jethmalani and Miss Rani Jethmalani for the Petitioner.
G. Ramaswamy, Additional Solicitor General, R.P. Srivastava 634 and Miss. A. Subhashini for the Respondent.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
The petitioner of this application under Article 32 of the Constitution is an engineer who was employed in the Central Public Works Department under the Ministry of Works and Housing in Government of India and was compulsorily retired by order dated 3.8.1976 with effect from 5.11.1976 made under Rule 56(j) of the Fundamental Rules.
He has assailed that order for retirement and has claimed payment of remuneration which he would have been entitled to draw upto the normal date of superannuation.
The short facts are these.
The petitioner was born on 10.2.1922 and secured his first appointment as a Section Officer under the named employer on 22.10.1947.
He was pro moted as officiating Assistant Engineer in class II service with effect from ' 25.5.
1954, and came to be confirmed as Section Officer by an order dated 8.10.1955.
On 3.7.1961, he was further promoted as officiating Executive Engineer in Class I service but on 4.9.1965, he was reverted to the post of Assistant Engineer in officiating position and was con tinuing in that post when he was compulsorily retired.
The vires of Rule 56(j) of the Fundamental Rules as also the power to compulsorily retire a public servant have been upheld by this Court and do not require to be re examined.
The basis of attack to the impugned order is as specified in Ground No. A and is to the following effect: "The impugned order is contrary to the judg ment delivered by this Hon 'ble Court on 26.2.1980, copy at Annexure C hereto.
(Union of India vs K.R. Tahiliani and Anr.) [1980] 1 SLR 847.
According to the said judgment F.R. 56 (j)(i) has no application to officiating government servants, hence can have no appli cation to the petitioner since the petitioner was an officiating government servant.
" The impugned notice ran thus: "No. 32/452/66 EC.
111 Government of India Central Public Works Department New Delhi, the 3.8.76 635 ORDER WHEREAS the Engineer in Chief is of opinion that it is in public interest to do so: NOW, THEREFORE, in exercise of the powers conferred by clause (j) of Rule 56 of the Fundamental Rules, the Engineer in Chief hereby gives notice to Shri A.L. Ahuja, As sistant Engineer (Civil), at present under suspension, that he, having already attained the age of fifty years on 10.2.1972, shall retire from service with effect from the forenoon of 3rd November, 1976, or, from the date of expiry of three months computed from the date of issue of the service of this notice on him, whichever is latter.
Sd/ (V.R .
VAISH) ENGINEER IN CHIEF To Shri A.L. Ahuja, Assistant Engineer (Civil), (Under Suspension), A11/85, Lajpat Nagar, New Delhi 110024.
" It is clear from it that the petitioner attained the age of 50 years on 10.2.1972 and, therefore, on the date of the order he had completed the age of 54 years.
Admittedly, he was holding a class II post when the impugned order was served on him.
Fundamental Rule 56(j) under which notice was given provides: "(j) Notwithstanding anything contained in this rule, the appropriate authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him notice of not less than three months in writ ing or three months ' pay and allowances in lieu of such notice; (i) if he is in Class I or Class II service or post (and had entered Government service before attaining the age 636 of thirty five years), after he has attained the age of fifty years; (ii) in any other case after he has attained the age of fifty five years; . . . . . . . . . . ." The appropriate authority is entitled to exercise power under clause (j) in the case of a Government servant in Class I or Class II service or post where he entered into service before attaining the age of 35 years after the said servant attained the age of 50 years; and in other cases after he has attained the age of 55 years.
In the instant case, the petitioner was promoted as officiating Assistant Engineer which is a Class II post on 25.5.
1954 and contin ued to hold that post when the order of compulsory retire ment was passed.
By 25.5.1954 the petitioner had not at tained the age of 35 years.
As already indicated above he had crossed the age of 50 years but had not attained the age of 55 years by the date of the impugned order.
Therefore, sub clause (1) was not contravened when the order was made.
It has been argued before us that as the petitioner was holding an officiating appointment in Class 117 he could not have been compulsorily retired under sub clause (i).
Support is claimed from the observations in the Tahilia ni 's case (supra).
The sole question that fell therein for decision before this Court was whether a Government servant officiating in Class I or Class II service or post could be retired compulsorily by exercising the power under Rule 56(j)(i) after he has attained the age of 50 years.
The two Judge Bench which decided the case held: " An officiating hand has no right to the post and is perhaps a fleeting.
bird who may have to go back to the substantive post from which he has been promoted on an officiating basis what is more to the point, a person who has been appointed de novo may begin his service on an officiating basis or on a tempo rary basis and it is obvious that he has no right to the post and cannot be strictly said to be in that service or post as a member of that service.
In short, an officiating Govern ment servant does not really belong to Class I or Class II service until he acquires a right thereon.
Even viewed closely and meticulously, the structure of the clause, namely, "if he is in Class I or Class II 637 service or post", emphasises the nature of the service or post vis a vis the Government servant concerned.
We need not go into the semantic shapes, lexical niceties or linguis tic nuance but only go through the meaning and purpose of the provision.
When a Government servant belonging to a Class I or Class II service or post on regular basis has to be retired compulsorily, Rule 56(j)(i) comes to the rescue of the Government.
But if he is only a temporary hand, he has no right to the post and can always be reverted to the post, if any, on which he has a lien.
Similar is the position of an officiating hand.
Thus we have reached an inevitable conclusion that Rule 56(j) is meant to cover only those who are in a post on a regular basis, i.e. in a substan tive capacity, and not on an officiating basis only.
" Strong reliance was placed by counsel for the petitioner on the reasons extracted above.
It is clear that sub clause (ii) is the general rule applicable to all Government servants and sub clause (i) carves out a class of Government servants into a category and makes a special provision.
We have already indicated that sub clause (ii) did not apply to the facts of this case as the petitioner had not attained the age of 55 years by the date of the order.
The observations made in Tahiliani 's case indisputably support the petitioner.
But the correct ness thereof is disputed by learned Additional Solicitor General appearing for the Union of India and that is why this writ petition was directed to be heard by a larger Bench.
There is no reference to officiating service in sub clause (i).
The relevant words used in sub clause (i) are "if he is in Class I or Class II service or post".
A person can be in Class I or Class II service or post even when he hold a post of either class substantively or temporarily or on officiating basis.
Instances are abundant where officers are promoted to Class I or Class II service or post of such class on officiating basis and such officiation lasts for a number of years.
Officiating promotion certainly does not confer a right to the post and at any time the Government servant may be sent back to his substantive post.
There is, however, no reasons why sub clause (i) should be confined to service or post held on substantive basis.
Learned counsel for the petitioner does not dispute the position that a person who is in Class I or Class II service or post is in such service or post as covered by sub clause (i).
The possibility of such incumbent being sent back to the 638 substantive post is not at all relevant in the matter of exercising powers of compulsory retirement.
If the officia tion is not brought to an end by reverting the Government servant to his substantive post before the power of compul sory retirement is exercised, the Government servant con cerned must be taken to be in Class I or Class II service or post at the relevant time and would come within the ambit of sub clause (i).
There is no warrant for the conclusion that officiating Government servants in Class I or Class II service or post are outside the purview of sub clause (i).
The possibility of a reversion to the substantive post is not germane to the exercise of power contained in F.R. 56.
The purpose of Fundamental Rules 56(j) is to confer power on the appropriate authority to compulsorily retire Government servant in the public interest and the classification of Government servants into two categories covered by sub clauses (i) and (ii) has a purpose behind it.
If the condi tion indicated in sub clause (i) is satisfied, namely, the Government servant is in Class I or Class II service or post and he had entered into service before attaining the age of 35 years, and has attained the age of fifty, the further condition that he must substantively belong to the two classes of service or post cannot be introduced into the scheme.
The purpose of the sub clauses is to classify Gov ernment servants into two categories and sub clause (i) takes within its sweep those Government servants who at the relevant time are in Class I or Class II service or post, whether substantively, temporarily or on officiating basis.
We would accordingly hold that the ratio of the decision in Tahiliani 's case is not correct and sub clause (i) of Rule 56(j) applies to Government servants in Class I or Class II service or post on substantive, temporary or offi ciating basis.
On this conclusion the writ petition is liable to be dismissed.
It has been represented to us by counsel for the petitioner that the similarly placed persons had gone before the Delhi High Court challenging the orders of compulsory retirement and the Delhi High Court relying upon Tahiliani 's case give them relief.
Such judgments have become final and Union of India has given effect to the decisions of the Delhi High Court.
When this was put to learned Additional Solicitor General he agreed that the Union of India will have no objection to treat the petitioner alike and would be prepared to give the same relief to the petitioner.
The petitioner would have superannuated from service on 29.2.1980 if he had not been compulsorily retired with effect from 639 5.11. 1976.
Even if the writ petition is allowed and the order of compulsory retirement is set aside the petitioner cannot go back to service.
But he would be entitled to pecuniary benefit of salary and allowances admissible under the rules.
Accordingly, we allow the.writ petition and direct the respondent to pay to the petitioner the salary and other allowances which would have been payable for the period between 5.11.
1976 and 29.2.
Such payment be made within two months from today.
There will be no order for costs.
WRIT PETITION NOS.
6251 & 8189 OF 1981 Each of the petitioners in these two writ applications under Article 32 of the Constitution was employed in the Central Public Works Department in the Ministry of Works and Housing of Government of India and has been compulsorily retired under Fundamental Rule 56(j).
The facts of each of these applications are more or less similar to those in Writ Petition No. 7338 of 1981 which we have disposed of today.
For the reasons given therein we allow each of the writ petitions and quash the order of compulsory retirement made against each of the petitioners.
By now both the petitioners would have retired from service and, therefore, they cannot be resorted in service.
They would, however, be entitled to salary and other service allowances payable to them from the date of compulsory retirement till the date of their normal superannuation.
There will be no order for costs.
H.L.C. Petition allowed.

dataset_name: IN-Abs

summary:
Fundamental Rule 56(j) confers power on the appropriate authority to compulsorily retire a Government servant, if it is in the public interest to do so, by giving 3 months ' notice or 3 months ' pay and allowances in lieu of such notice; while sub cl.
(i) thereof states that a public servant in class I or class II service or post who had entered service before attaining the age of 35 years can be retired after he has attained the age of 50 years, sub cl.
(ii) thereof states that any other public servant can be retired after he has attained the age of 55 years.
In Union of India vs K.R. Tahiliani & Anr., this Court had held that F.R. 56(j) is meant to cover only those who are in a post on a regular basis, i.e., in a substantive capacity, and not on an officiating basis only.
Basing his case on this decision, the petitioner, who had been compulsorily retired while working in a class II post In an officiating capacity, challenged the order of his compulsory retirement.
Overruling the decision in Union of India vs K.R. Tahi liani & Anr., but, allowing the petition on the ground that the Delhi High Court, relying upon that decision, had grant ed relief to persons similarly placed as the petitioner, and, directing payment of his salary and allowances upto the date of his normal superannuation, HELD: Sub clause (1) of r. 56(j) of the Fundamental Rules applies to Government servants in Class I or Class II service or post on substantive, temporary or officiating basis.
[638E F] There is no reference to officiating service in sub cl.
The relevant words used in sub cl.
(i) are "if he is in CIasa I or CIasa II service or post.
" A person can be in Class I or CIasa II service or post even when he holds a post of either ciasa substantively or temporarily or on officiating basis.
Instances are abundant where officers are promoted to CIasa I or Class II service or post of such class on officiating basis and 633 such officiation lasts for a number of years.
Officiating promotion certainly does not confer a right to the post and at any time the Government servant may be sent back to his substantive post.
There is, however, no reason why sub cl.
(i) should be confined to service or post held on substan tive basis.
It is not disputed that a person who is in Class I or Class II service or post is in such service or post as covered by sub cl.
The possibility of such incumbent being sent back to the substantive post is not at all rele vant in the matter of exercising powers of compulsory re tirement.
If the officiation is not brought to an end by reverting the Government servant to his substantive post before the power of compulsory retirement is exercised, the Government servant concerned must be taken to be in Class I or Class II service or post at the relevant time and would come within the ambit of sub cl.
There is no warrant for the conclusion that officiating Government servants in Class I or Class II service or post are outside the purview of sub cl.
The possibility of a reversion to the sub stantive post is not germane to the exercise of power con tained in F.R. 56.
[637F H; 638A C] The purpose of F.R. 56(j) is to confer power on the appropriate authority to compulsorily retire a Government servant in the public interest and the classification of Government servants into two categories covered by sub cls.
(i) and (ii) has a purpose behind it.
If the condition indicated in sub cl.
(i) is satisfied, namely, the Govern ment servant is in Class I or Class II service or post and he had entered into service before attaining the age of 35 years, and has attained the age of fifty, the further condi tion that he must substantively belong to the two classes of service or post cannot be introduced into the scheme.
The purpose of the sub clauses is to classify Government serv ants into two categories and sub cl.
(i) takes within its sweep those Government servants who at the relevant time are in Class I or Class II service or post, whether substantive ly, temporarily or on officiating basis.
[638C E] Union of India vs K.R. Tahiliani & Ant., , over rulled.


judgement:
ION: Special Leave A Petition (CRL. ) No. 1765 of 1987 From the Judgment and order dated 8/9.7.1987 of the Bombay High Court in W.P. No. 332 of 1987.
V.N. Ganpule for the Petitioner.
Soli J. Sorabjee, K.J. John and A.K. Desai for the Respondents.
The Judgment of the Court was delivered by SEN, J.
The by section 630, enacts: "630.
Penalty for wrongful withholding of property (1) If any officer or employee of a company (a) wrongfully obtains possession of any property of a company; or D (b) having any such property in his possession wrongfully withholds it or knowingly applies it to purposes other than those expressed or directed in the articles and authorised by this Act; he shall, on the complaint of the company or any creditor or contributory thereof, be punishable with fine which may extend to one thousand rupees.
(2) The Court trying the offence may also order such officer or employee to deliver up or refund, within a time F to be fixed by the Court, any such property wrongfully obtained or wrongfully withheld or knowingly misapplied, or in default, to suffer imprisonment for a term which may extend to two years.
" The only question involved in this special leave petition is as to the scope and effect of sub section
(1) of section 630 of the Act.
The controversy is as to the meaning of the term 'officer or employee ' used in sub s(1) of section 630 and as to the meaning of the words 'any such property ' in cl.
(b) thereof and there is a conflict of opinion between the High Courts of Calcutta and Bombay on the question.
On a literal construction of the term 'officer or employee ' occurring in sub section
(1) of section 630 of H 172 the Act, the High Court of Calcutta in Amritlal Chum vs Devi Ranjan Jha & Anr., held that it refers only to the existing officers and employees of a company.
It also held that the words 'any such property ' in section 630(l)(b) relate to property specified in cl.
(a) viz. property of a company wrongfully taken possession of by a present officer or employee of the company.
The High Court of Bombay, on the other hand, has placed a beneficent construction on the provisions contained in section 630 and according to it, the term 'officer or employee ' in sub section
(1) of section 630 must be interpreted to mean not only the present officers and employees of a company but also to include past officers and employees of the company.
It is also of the view that the words 'any such property ' in ck (b) qualify the words 'any property of a company ' appearing in cl.
That has been the consistent view taken by the High Court of Bombay in a series of cases.
See: Harkishan Lakhimal Gidwani vs Achyut Kashinath Wagh & Anr., , Govind T. Jagtiani vs Sirajuddin section Kazi & Anr., [ which have since been followed in a series of cases referred to by the learned Single Judge (Ashok Agarwal, J.).
The issues involved in the special leave petition are of considerable importance to the corporate sector as many of the business organisations, both in the public as well as the private sector, are required to provide residential accommodation to their officers and employees as a condition of their service to attract better talent and have of necessity to purchase residential flats in multi storeyed buildings in large cities and towns for the use of such officers and employees during the course of their employment, and the question is whether the provisions contained in sub section
(1) of section 630 which provide for the launching of a prosecution against an officer or employee of a company for wrongful possession of such property under cls.
(a) and (b) of sub section
(1) of section 630 and for the recovery of such property by the issue of process under sub section (2), also extends to past officers and employees of the company and whether the Court trying the offence has the power to issue a process under sub section
(2) against such officer or employee.
At the conclusion of the hearing we had by a short order dismissed the special leave petition and held that the view expressed by the learned Single Judge following the earlier decisions of the High Court in Harkishan Lakhimal Gidwani and reiterated in Govind T. Jagtiani was to be preferred to the view to the contrary expressed by the High Court of Calcutta in Amritlal Chum.
As the respondent Shipping Corporation of India, a public sector undertakings, was in dire need of the flat in question which is situate in a posh locality like the Cuffe Parade in 173 Bombay, for the use of its senior executive, we could not accede to the request of the learned counsel for the petitioner to refer the case to a bench of three judges and heard learned counsel for the parties at quit some length on August 27,1987 and dismissed the special leave petition.
The reasons therefor follow.
At the very threshold it is necessary to set out a few facts.
The petitioner Baldev Krishan Sahi was an Under Secretary to the Government of India in the Ministry of Shipping & Transport and on May 21, 1974 accepted employment as Joint Manager in the Mogul Line Limited, a Government of India undertaking, after obtaining release from government service.
He was first allotted a service quarter.
In 1975 the company purchased a spacious flat being flat No. 151 in Jolly Maker Apartment III at 119, Cuffe Parade and the petitioner being the senior most executive was allotted the flat for his residence.
The petitioner retired from the service of the company on or about September 30, 1984.
Prior to that i.e. On September 26, 1984 he addressed a letter requesting the company to permit him to continue to live in the company 's premises during the period of his accumulated leave after his retirement i.e. for a period of six months, undertaking to vacate the flat as early as possible.
It appears that the company on humanitarian grounds acceded to this request and permitted the petitioner to stay on in the company 's flat for six months after his retirement and in accordance with the company 's rules, he was required to pay compensation for the use of the premises.
After the expiry of the said period of six months, the company addressed a letter dated April 26, 1985 requesting the petitioner to vacate the premises stating that if he failed to do so, he would be liable to pay higher compensation as per the company 's rules.
Since the petitioner failed to vacate the flat, the company initiated proceedings for his eviction under the Public Premises (Eviction of Unauthorised occupants) Act, 1971.
The Estate officer by order dated December 2, 1985 directed the eviction of the petitioner.
The petitioner carried an appeal to the City Civil & Sessions Court, Bombay but the same was dismissed by the Principal Judge, City Civil Court by his order dated January 16, 1986.
He then preferred a revision to the High Court and the High Court by its order dated January 28, 1986 allowed the same, set aside the eviction order and directed the Estate officer to give a personal hearing to the petitioner.
Instead of availing of that opportunity, the petitioner on March 3, 1986 moved the High Court by a petition under article 226 of the Constitution and obtained ad interim stay of the proceedings before the Estate officer.
A few days thereafter i.e. On March 7, 1986 the petitioner instituted a suit being Civil Suit No. 174 1382/86 in Small Causes Court, Bombay seeking a declaration that he was a tenant of the disputed flat, which is now pending.
In view of this, the company was constrained to lodge a complaint against the petitioner under section 630 of the Act in the Court of the Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Bombay alleging that he was wrongfully withholding the flat in question which had been given to him for his residence during the period of his employment and and thereby committed an offence punishable under section 630.
The learned Magistrate by his order dated May 22, 1986 took cognizance of the complaint against the petitioner and directed issue of process.
On June 30, 1986 the company merged with the Shipping Corporation of India and all its assets and liabilities were taken over by the Corporation.
The Corporation in the counter affidavit interalia has pleaded that there is acute shortage of housing accommodation in the Metropolitan City of Bombay and it becomes necessary for the Corporation with a view to attract good talent to provide suitable housing accommodation to its officers and employees, and that due to acute financial liquidity it is not possible for the Corporation to buy property in Bombay for this purpose.
It is further pleaded that the petitioner was given the flat for his residence during the period of his employment and that he was bound to vacate the same after his retirement.
It is asserted that the petitioner with a dishonest intention is wrongfully with holding the flat and has instituted false and frivolous proceedings with the ulterior object of protracting and delaying the eviction proceedings.
We are informed that the petitioner has been deliberately and dishonestly withholding the flat covering an area of 1750 square feet in Cuffe Parade which is a posh area, valued at approximately Rs.30 lakhs and putting it to his own use contrary to the terms of his employment.
The first and foremost argument of learned counsel for the petitioner is that the provision contained in section 630 of the Act is a penal provision and therefore must be subject to a strict construction and there is no room for intendment.
It is submitted that on a true construction, the scope and effect of the section was limited to such property of the company which was wrongfully obtained by an officer or employee of the company.
Emphasis was placed upon the words any such property ' in cl.
(b) of sub section
(1) for the contention that cl.
(b) does not stand by itself but is inter connected with cl.
(a) and therefore both clauses (a) and (b) must be read together.
In essence, the submission is that sub section
(1) of section 630 of the Act makes it an offence where any officer or employee of a company wrongfully withholds possession of 175 such property of the company.
Secondly, it is contended that the legislature never intended to include past officers and employees of a company within the ambit of section 630 of the Act which provides for prosecution of an officer or employee of a company for wrongfully withholding the property of the company inasmuch as it has used different languages where it was so intended, namely, in sections 538 and 545.
The entire argument of the learned counsel is based upon the judgment of the High Court of Calcutta in Amritlal Chum 's case.
We are afraid, we find it difficult to subscribe to the narrow construction placed by the High Court of Calcutta on the provision contained in sub section
(I) of section 630 of the Act which defeats the very purpose and object with which it had been introduced.
The beneficent provision contained in section 630 no doubt penal, has been purposely enacted by the legislature with the object of providing a summary procedure for retrieving the property of the company (a) where an officer or employee of a company wrongfully obtains possession of property of the company, or (b) where having been placed in possession of any such property during the course of his employment.
wrongfully withholds possession of it after the termination of his employment.
It is the duty of the Court to place a broad and liberal construction on the provision in furtherance of the object and purpose of the legislation which would suppress the mischief and advance the remedy.
Section 630 of the Act which makes the wrongful withholding of any property of a company by an officer or employee of the company a penal offence, is typical of the economy of language which is characteristic of the draughtsman of the Act.
The section is in two parts.
Sub section
(1) by clauses (a) and (b) creates two distinct and separate offences.
First of these is the one contemplated by cl.
(a), namely, where an officer or employee of a company wrongfully obtains possession of any property of the company during the course of his employment, to which he is not entitled.
Normally, it is only the present officers and employees who can secure possession of any property of a company.
It is also possible for such an officer or employee after termination of his employment to wrongfully take away possession of any such property.
This is the function of cl.
(a) and although it primarily refers to the existing officers and employees, it may also take in past officers and employees.
In contrast, cl.
(b) contemplates a case where an officer or employee of a company having any property of a company in his possession wrongfully withholds it or knowingly applies it to purposes other than those expressed or directed in the 176 articles and authorised by the Act.
It may well be that an officer or employee may have lawfully obtained possession of any such property during the course of his employment but wrongfully withholds it after the termination of his employment.
That appears to be one of the functions of cl.
It would be noticed that cl.
(b) also makes it an offence if any officer or employee of a company having any property of the company in his possession knowingly applies it to purposes other than those expressed or directed in the articles and authorised by the Act.
That would primarily apply to the present officers and employees and may also include past officers and employees.
There is therefore no warrant to give a restrictive meaning to the term 'officer or employee ' appearing in sub section
(1) of section 630 of the Act.
It is quite evident that clauses (a) and (b) are separated by the word 'or ' and therefore are clearly disjunctive.
The High Court of Calcutta in Amritlal Chum 's case obviously fell into an error in seeking to curtail the ambit of section 630(l)(b) by giving a restrictive meaning to the terms 'officer or employee ' which must take its colour from the context in which it appears.
The whole object of enacting sub section
(1) of section 630 is the preservation of the property of a company by the creation of two distinct offences by clauses (a) and (b) which arise under different sets of circumstances, and it would be rendered nugatory by projecting cl.
(a) into cl.
There is also no warrant for the construction placed by the High Court of Calcutta on the words 'any such property ' occurring in cl.
(b) as applicable to such property of a company, possession of which is wrongfully obtained by an officer or employee of the company i.e. refers to the whole of cl.
According to the plain construction, the words 'any such property ' in cl.
(b) relate to any property of a company as mentioned in cl.
Section 630 of the Act plainly makes it an offence if an officer or employee of the company who was permitted to use any property of the company during his employment, wrongfully retains or occupies the same after the termination of his employment.
By a curious process of reasoning, the High Court of Calcutta in Amritlal Chum 's case held that section 630 of the Act applies only to the existing officers and employees and not to those whose employment has been terminated.
In somewhat similar facts, an officer of Messrs Jardine Hendersons Limited who had been placed in possession of a furnished flat in premises No. 27, Ballygunj Park, Calcutta as a condition of his service, wrongfully retained possession thereof after ceasing to be an officer of the company.
The question was whether he had thereby committed an 177 Offence punishable under section 630 of the Act.
N.G. Chaudhuri, J. speaking for himself and G.C. Chatterjee, J. held that the opening words of sub section
(1) of section 630, namely, 'if any officer or employee of a company ' qualify 'the acts of delinquency ' specified in clauses (a) and (b) thereof.
He further held that the High Court of Bombay was in error in laying down in Govind T. Jagtiani 's case that for purposes of prosecution, cl.
(a) of section 630(1) was referable to existing officer or employee of a company, while cl.
(b) was wide enough to include former or past officer or employee of the company inasmuch as on a plain reading of the section the two clauses do not permit different interpretations, as suggested.
Further, whenever the framers of the law in their wisdom thought it proper to bring within the mischief of the provisions of the Act former officers or employees of a company, they did not hesitate to do so and they expressly legislated.
In particular, the learned judge referred to section 538 which provides for prosecution for offences by officers of companies in liquidation and uses the expression 'a past or present officer of a company etc. ', as also section 545 which provides for prosecution of delinquent officers and members of a company during the course of winding up and uses the words 'any past or present officer etc. ' Upon that basis, he observed that there was no reason to give a twisted and laboured interpretation to the provisions of section 630 of the Act which its plain reading does not permit.
The learned Judge also referred to the words 'any such property ' in cl.
(b) as taking in the property mentioned in cl.
(a) i.e. property wrongfully obtained.
The reasoning of the learned Judges does not bear scrutiny and renders cl.
(b) of section 630( l) wholly redundant.
It is the wrongful withholding of such property, meaning the property of the company after termination of the employment.
which is an offence under section 630(l)(b) of the Act, as rightly pointed out by V.S. Kotwal, J. in Harkishan Lakhimal Gidwani vs Achyut Kashinath Wagh (supra).
The facts were also identical as here.
The petitioner there was the General Manager of a company known as the English Electrical Company of India Limited, a company incorporated under the having its registered office at Calcutta.
He had been allotted the premises of a flat, approximately 3,500 square feet in area, located at Mayfair Gardens, Little Gibbs Road, Bombay.
He had been inducted into the flat only by virtue of his capacity as the General Manager of the company 's branch office at Bombay but the company allowed him to retain the same on humanitarian grounds for a short period after his retirement to enable him to find alternative accommodation.
This humanitarian and charitable consideration shown by the company was reciprocated by the petitioner by adopting H 178 an adamant attitude and he declined to vacate the same on one pretext or another.
The question was whether such wrongful retention of the flat amounted to an offence under section 63() of the Act.
The Court repelled the contention that section 630 of the Act applies only to the existing officers and employees of the company and not to former officers and employees, and that the phrase 'any such property ' used in cl.
(b), even though cls.
(a) and (b) are separated by the word 'or ' which must in the context in which it appears be read as 'and ' and so construed, must mean withholding of property wrongfully obtained by an existing officer or employee.
Kotwal, J.
On a careful analysis of section 630 held that the provisions of the section apply not only to the present officers and employees of the company but also to past officers and employees, and observed: "It is held that the features and deductions which flow logically and inescapably on an analysis of section 630 are that: (i) Clause (a) of the section is self contained and independent of cl.
(b) with the capacity of creating penal liability 4 embracing the case of an existing employee or officer of the company.
(ii) Clause (b) is equally independent and distinct from cl.
(a) as regards penal consequences squarely covering the case of a past employee or officer.
(iii) The entitlement of an officer to the property of the company is contingent on the right and capacity of the officer by virtue of his employment which is transformed into the actual possession of the property and the duration of such right would be co terminus with the terms of employment.
" In Govind T. Jagtiani vs Sirajuddin section Kazi, (supra), Kanade, J. fol lowed the critical analysis of section 630 made by Kotwal, J. as above, and observed that the entitlement of an officer to the property of the company and the duration of such right would be co terminus with the terms of employment and the right would stand extinguished with the termination to the employment giving rise to an obligation to hand over the property back to the company, and observed: "If the property is held back, the retained possession would amount to wrongful withholding of the property of the company.
While the existence of the capacity, right and possession would be during employment, the withholding may be even after the termination of the employment and though the possession as it precedes the act of retention or withholding may be rightful in the past affording an 179 Opportunity to withhold, the withholding may be wrongful as in the present case.
" The learned Judge (Ashok Agarwal, J.) observes that that has been the consistent view of the High Court and has referred to the subsequent decisions of Khatri j J. and Kurdukar, J.
In our considered opinion, the construction placed by the High Court on the provisions contained in s.630(1) is the only construction possible.
We accordingly uphold the view of the High Court of Bombay that the terms 'officer or employee ' of a company applies not only to existing officers or employees but also to past officers or employees if such officer or employee either (a) wrongfully obtains possession of any property, or (b) having obtained such property during the course of his employment, withholds the same after the termination of his employment.
The decision to the contrary of the High Court of Calcutta in Amritlal Chum 's case does not lay down good law and is overruled.
In the result, the special leave petition must fail and is dismissed with costs.
The petitioner is given one month 's time to vacate the premises failing which the respondents will be at liberty to take such proceedings as the law provides.
We direct the Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Bombay to proceed with the trial of Crl.
Case No. 76/S/1986 and dispose it of as expeditiously as possible and in any event, not later than four months from today.
P.S.S. Petition dismissed.

summary:
Sub section ( l ) of section 630 of the provides for launching of prosecution against an officer or employee of a company, who (a) wrongfully obtains possession of any property of a company, or (b) having any such property in his possession wrongfully withholds or knowingly misapplies the same.
The petitioner who was given a flat by the company for his residence during the period of his employment did not vacate it on his retirement.
He was granted six months time on humanitarian grounds upon his undertaking to comply with.
Upon his failure to vacate the premises the company lodged a complaint against him under section 630 of the Act for wrongful withholding of its property.
The Magistrate took congnizance of the complaint and directed issue of process.
Dismissing the writ petition filed by him under article 227 of the Constitution read with section 482 Cr.
P.C. seeking to quash the proceedings, the High Court following its consistent view in a series of cases that the term 'officer or employee ' in sub section
(1) of section 630 must be interpreted to mean not only the present officer or employee of company but also to include past officers and employees of the company and that the words 'any such property ' in cl.
(b) qualify the words 'any property of a company ' appearing in cl.
(a), held that the case does not call for interference.
169 In the special leave petition it was contended for the petitioner that the provision contained in section 630 of the Act is a penal provision and, therefore, must be subject to a strict construction and there is no room for intendment, that the term 'officer or employee ' occurring in sub section
(1) of section 630 refers only to the existing officers and employees of a company, and not the past officers, and that cl.
(b) of sub section
(I) does not stand by itself but is interconnected with cl.
(a) thereof and therefore cl.
(a) and cl.
(b) must be read together and when so read the words 'any such property ' in cl.
(b) do not qualify the words 'any property of a company ' in cl.
(a) and only relate to the property of company wrongfully taken possession of by a present officer.
Dismissing the special leave petition, ^ HELD: 1.
Section 630 of the plainly makes it an offence if an officer or employee of the company who was permitted to use any property of the company during his employment, wrongfully retains or occupies the same after the termination of his employment.
[176F G] 2.1 The term 'officer or employee ' of a company in section 630(1) applies not only to existing officers or employees but also to past officers or employees if such officer or employee either (a) wrongfully obtains possession of any property, or (b) having obtained such property during the course of his employment, withholds the same after the termination of his employment.
[179B C] 2.2 The beneficent provision contained in section 630 of the though penal, has been purposely enacted by the legislature with the object of providing a summary procedure for retrieving the property of the company.
It is the duty of the Court to place a broad and liberal construction on the provision in furtherance of the object and purpose of the legislation which would suppress the mischief and advance the remedy.
[175C E] 2.3 Sub section
(1) of section 630 of the Act by clauses (a) and (b) creates two distinct and separate offences: (1) Where an officer or employee of a company wrongfully obtains possession of any property of the company during the course of his employment, to which he is not entitled.
Normally, it is only the present officers and employees who can secure possession of any property of a company.
It is also possible for such an officer or employee after termination of his employment to wrongfully take away possession of any such property.
This is the function of cl.
(a) 170 and although it primarily refers to the existing officers and employees, it may also take in past officers and employees.
(2) Where an officer or employee of a company having any property of a company in his possession wrongfully withholds it or knowingly applies it to purposes other than those expressed or directed in the articles and authorized by the Act.
It may well be that an officer or employee may have lawfully obtained possession of any such property during the course of his employment but wrongfully withholds it after the termination of his employment.
That appears to be one of the functions of cl.
Clause (b) also makes it an offence if any officer or employee of a company having any property of the company in his possession knowingly applies it to purposes other than those expressed or directed in the articles and authorized by the Act.
That would primarily apply to the present officers and employees and may also include past officers and employees.
There is therefore no warrant to give a restrictive meaning to the term 'officer or employee ' appearing in sub section
(1) of section 630 of the Act.
[175F H; 176A C] 3.
It is quite evident that clauses (a) and (b) are separated by the word 'or ' and therefore are clearly disjunctive.
The whole object of enacting the provision is the preservation of the property of a company by the creation of two distinct offences by clauses (a) and.(b) which arise under different sets of circumstances, and it would be rendered nugatory by projecting cl.
(a) into cl.
1176C, D E] 4.
According to the plain construction, the words 'any such property ' in cl.
(b) relate to 'any property of a company ' as mentioned in cl.
It is wrongful with holding of such property meaning the property of the company after termination of the employment, which is an offence under section 630(l)(b) of the Act.
[176F; 177E F] 5.
The petitioner given one month 's time to vacate the premises failing which the respondents to take such proceedings as the law provides.
The Additional Chief Metropolitan Magistrate to proceed with the trial and dispose it of expeditiously.
[179D E] Harkishan Lakhimal Gidwani vs Achyat Kashinath Wagh & Anr., , and Govind T. Jagtiani vs Sirajuddin section Kazi & Anr., , approved.
Amritlal Chum vs Devi Ranjan Jha & Anr., , overruled. 171


judgement:
Civil Appeal No. 1377 of 1982.
From the Judgment and Order dated 17.11.1980 of the Bombay High Court in Special Civil Appeal No. 251 of 1977.
F.R. Nariman, E.K. Jose, P.H. Parekh and Miss Sunita Sharma for the Appellant.
Y.H. Muchhala, B.R. Aggarwala and Miss. section Manchanda for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This appeal by special leave arises from the judgment and order of the High Court of Bombay dated 17th of November, 1980.
The main question involved in this appeal is whether the appellant was a licensee or a tenant and also incidentally the question whether the Court of Small Causes, Bombay had jurisdiction to deal with the eviction petition in this case.
The premises in question belongs to the Bombay City Weavers Cooperative Limited.
They filed ejectment proceedings against one 1060 Sugrabhai Mohammed Husain, their tenant and obtained a decree.
It is stated that the appellant was a monthly tenant of the suit premises since about 2nd February, 1965.
On or about 9th of February, 1965 a fresh document of that date, was executed and it is alleged that the appellant continued by virtue of that agreement.
It is alleged that this agreement was entered into between the parties since the respondent wanted to charge more rent or mesne profits.
This agreement is in writing and this was for a period of five years, i.e., from 1st September, 1965 to 31st of August, 1970.
The main contention involved in this appeal is whether the appellant was a tenant or a licensee? The answer would be dependent upon the construction of the aforesaid document.
It is necessary, therefore, to refer to the said agreement in little detail.
The agreement is described as an agreement of 'leave and licence ' entered into between the respondent on the one hand and the appellant on the other wherein the respondent had been described as the 'licensor and the appellant had been described as the licensee ' and the recitals therein recite that the licensor was seized and possessed of and was otherwise well entitled as the monthly tenant of the workshop premises situated at 231, Ripon Road, Cooperative Building, Bombay, being the premises in dispute, and whereas the licensee had approached the licensor to allow him to occupy and use the said premises for the purpose of carrying out his business of workshop for a period of five years and whereas the licensor had agreed to allow the licensee to use the premises under the said leave and licence of the licensor for a period of five years from 1st of September, 1965 till 31st of August, 1970, that agreement was being executed.
it was stated that the licensor gave and granted his 'leave and licence ' to the licensee to use and occupy the said premises for the period of five years.
Clause 2 of the said agreement recites that the licensee had agreed to use the premises as above and merely for the purpose of workshop business.
It further goes on to state that the "licensee shall not under any circumstances be allowed to use the premises for the residential purposes or any other purpose save and except specified therein".
The period of leave and licence was to commence from 1st of September, 1965 to 31st of August, 1970 and it was further submitted that the licensee and the licensor shall not terminate the said agreement earlier save and except on the ground of breach of any of the terms and conditions written therein.
The licensor was entitled to terminate the agreement earlier notwithstanding the fact that the period of the agreement might not have expired.
It further stipulated that the licensee should deposit a sum of Rs.2,500 for the due performance of the terms and conditions of the agreement.
The said deposit was to be kept free of interest and the same was to be refunded to the 1061 licensee on the licensee surrendering possession of the said premises by removing himself and his belongings on the expiry of the period of the agreement or sooner termination or determination thereof after deducting all the dues if any for payment of compensation.
It further stipulated that the licensee shall pay to the licensor a monthly compensation of Rs.225 per month.
It is further stipulated that the licensee would be entitled to keep the keys of the said premises with him and shall be at liberty to work in the said premises for twenty hours subject to restriction of rules and regulations imposed by the Municipal or any other local authority or authorities.
It is further provided that the licensee shall be alone responsible and liable for any breach or contravention of any rule or regulation of the said authorities and he shall indemnify the licensor therefor.
The document further stipulated that the licensee shall be at liberty to construct loft and electric fittings and apparatus and tools and shall be entitled to the ownership thereof and shall be free to carry away such articles and the licensor agreed and undertook that he shall not obstruct the removing of such articles at the time of the delivery of the possession of the said workshop.
It is further mentioned in the said agreement that it was agreed by the licensee that if he commits any default of any terms and conditions or fails to pay the compensation for two months or if the licensee at any time puts up false or adverse claim of tenancy or sub tenancy the licensor shall be entitled to terminate the agreement and cancel and revoke and withdraw the leave and licence granted earlier and shall be entitled to take possession forthwith of the said premises.
It is further stipulated that the licensee shall pay the electric charges in respect of consumption of electricity and the rent of the said premises should be paid by the licensor only.
The agreement recited that the licensee shall not allow any other person to use and occupy the said premises and shall not do any unlawful or illegal business therein.
The agreement further recited that the licensor shall have the full right to enter upon the premises and inspect the same at any time.
In setting out the terms of the agreement the emphasis has been supplied to the relevant clauses to highlight the points in controversy.
On or about 9th November, 1970, the respondent herein filed an ejectment proceeding against the appellant under section 41 of the .
It is well to refer to section 41 of the said Act which is in Chapter VII and deals with summons against person occupying property without leave and provides that when any person has had possession of any immovable property situate within the local limits of the Small Cause Court 's jurisdiction and of which the annual value at rack rent did not exceed two 1062 thousand rupees, as the tenant, or by permission, of another person, or of some person through whom such other person claims, and such tenancy or permission has been determined or withdrawn then a suit can be filed by a summons against the occupant calling upon him to show cause therein.
It was only when the person was in occupation by permission of the grantor that after the recovery of the permission a suit for possession could have been instituted under section 41 of the said Act.
On or about 9th of November, 1970 the owner of the premises filed an ejectment proceeding against one Sugrabhai Mohammed Husain and obtained a decree.
The trial Judge in the instant case passed a decree in ejectment petition filed by the respondent and ordered the appellant to vacate the premises before 31st of January, 1975.
Before the Judge, Court of Small Causes the points of defences were filed in which the appellant had stated that the application was not maintainable and the plaintiff was himself occupying the premises under one Sugrabhai Mohammed Husain who himself had adopted ejectment proceedings against the respondent.
The appellant was contending that he was a direct tenant of the respondent.
Without prejudice to the above contention it was contended by the appellant that the respondent was not the owner of the workshop and also denied that he had given the workshop to respondent for conducting business.
The submission was that there was sub tenancy by the respondent in favour of the appellant as a monthly tenant of the business with the articles and machinery belonging to the appellant and not to the respondent.
On those grounds it was contended that ejectment proceedings was liable to be rejected.
It was recorded by the court with the expression "B.C", a term of some ambiguity as explained later, that the appellant was not claiming protection as a sub tenant under the Rent Act but only the subtenancy as such and therefore, it was recorded that as agreed 'B.C '.
no preliminary issue was to be framed.
The learned Judge, noted that the only point that arose for consideration was whether the appellant proved that he was a sub tenant as such or not.
It is interesting to note that in the judgment of the Small Cause Court and also of the High Court at several places the expression "B.C." was used; this is intriguing as we find that it intrigued Vaidya, J. because he stated in his judgment dated 9th of December, 1975 what the expression "B.C." was meant by Court.
He recorded further that he thought that "B.C." meant 'by consent '.
The learned Judge recorded further that it was practice in the Court of Small Causes, Bombay of using the expression 1063 "B.C.".
The said learned Judge, however, observed that the use of the words in the paragraph which we have stated hereinbefore made the entire paragraph meaningless.
We could not agree more.
In order to go back to the findings of the learned Judge of the Court of Small Cause and the learned High Court Judge found that the appellant had failed to prove that he was a sub tenant of the respondent and the learned Judge found him to be a licensee.
On an analysis and examination of evidence recorded and in the background of the documents in question the learned Judge came to the conclusion factually that it was an agreement for leave and licence and the appellant was a licensee and not a sub tenant.
It was an agreed position as the learned Judge noted that the respondent therein was a tenant of the entire suit premises and had produced a rent receipt for the month of April, 1971 for a monthly rent of Rs.56.25 p.m. inclusive of municipal taxes and had also produced light bill for the period 20.10.65 and 19.11.65.
The learned Judge observed that from the evidence it would be seen that it was not the case of the appellant even that he had gone to occupy the suit premises any time before that date and the dispute started only from the date of the agreement.
In the light of the legal position and also the fact that the rent, light bill stood in the name of the respondent showed that there was no desire to create any lease by the document mentioned hereinbefore and the appellant regarded him as a mere licensee.
There was no error of fact as such on that.
To this finding our attention was drawn and great reliance was placed.
To go back to the narration of events, the appellant filed special civil application in the High Court of Bombay under Article 227 of the Constitution.
The High Court of Bombay allowed the special civil application on 9th December, 1975.
Thereafter in 1977 a special leave petition to this Court under Article 136 of the Constitution was filed being S.L.P. No. 274/77 and an order was passed in Civil Appeal No. 2181 of 1977 by which the case was sent back to the High Court for a fresh decision, keeping in view the decision of this Court in D.H. Maniar and others vs Waman Laxman Kudav; , Thereafter the High Court disallowed the special civil application by its order dated 17th of November, 1980.
That decision was a case where the appellants therein had granted a licence in respect of certain shop premises in Bombay to the respondent under a Leave and Licence Agreement which expired on 31st March, 1966.
Thereafter the appellants had served a notice upon the respondent calling upon him to remove himself from the said premises.
The respondent refused to do so.
In July, 1967 the appellants 1064 filed an application for eviction under section 41 of the .
The contention of the respondent that he was a tenant was negatived by the Small Cause Court, Bombay.
The respondent approached the High Court under Article 227 of the Constitution.
The High Court refused to interfere with the finding of the Small Cause Court that the respondent was a licensee and not a tenant.
The Bombay Rent Act was amended by Maharashtra Act 17 of 1973.
By the amending Act, sections 5(4A) and 15A were introduced in the parent Act to confer on the licensee, who had a subsisting agreement on February 1, 1973, the status and protection of a tenant under the Bombay Rent Act.
The respondent in that case by an amendment had taken the plea of protection under the Maharashtra Amendment Act 17 of 1973 on the ground that he was in occupation of the premises on 1st February, 1973 under a subsisting agreement for licence.
The Small Cause Court, Bombay negatived the plea on the ground that there was no subsisting agreement for licence on the 1st of February, 1973 as there was nothing on record to show that after 31st March, 1966 the leave and licence agreement between the parties was renewed or any fresh agreement was entered into.
The respondent had filed a revision petition under section 115 of C.P.C. in the High Court.
The High Court allowed the revision on the ground that the licence was not put an end to by the appellants and that in any event by filing the application for eviction the appellant licensor had granted an implied licence to the respondent licensee to continue in possession till a decree of eviction was passed in his favour.
This Court allowing the appeal held that in order to get the advantage of section 15A of the Bombay Rent Act, the occupant must be in occupation of the premises as a licensee as defined in section 5(4A) on the 1st of February, 1973.
If he was such a licensee, the non obstante clause of section 15A(1) give him the status and protection of a tenant in spite of there being anything to the contrary in any other law or in contract.
But if he was not a licensee under a subsisting agreement on the 1st of February, 1973, then he did not get the advantage of the amended provision of the Bombay Rent Act.
It was further held that a person continuing in possession of the premises after termination, withdrawal or revocation of the licence continued to occupy it was a trespasser or a person who had no semblance of any right to continue in occupation of the premises.
Such a person could not be called a licensee at all.
It was futher held that a person continuing in occupation of such premises after revocation of the licence was still liable to pay compensation or damages for its use and occupation.
It was further held that filing an application under section 41 of the 1065 might in certain circumstances have the effect of putting an end to the licence if it was subsisting on the date of its filing.
But that cannot possibly have the effect of reviving the licence as opined by the learned Judges.
Such a proposition of law, it was further concluded by this Court, was both novel and incomprehensible.
It was further held that it was right that the Court should act in consonance with the spirit of the Maharashtra Amending Act 17 of 1973, but the Court cannot and should not cast the law to the winds or twist or stretch it to a breaking point amounting to almost an absurdity.
It was observed that the finding of the High Court that the respondent was in occupation of the premises under a subsisting licence was wholly wrong and suffered from serious infirmities of law and fact and deserved to be set aside.
The High Court disallowed the special civil application under Article 227 of the Constitution on 17th of November, 1980 and that is the judgment impugned in this appeal.
The High Court in the judgment under appeal noted that if it was held that the document created a lease rather than a licence than the tenant would be entitled to protection.
The Bombay High Court in Miss Mani J. Desai vs M/s. Gayson & Co. Pvt. Ltd., 73 Bombay Law Reporter 394 had held that the Court of Small Causes would have no jurisdiction to proceed with the application filed under section 41 of the .
The learned Judge rejected the contention of the appellant that he was a tenant and having found that the period of licence had come to an end, he passed an order of eviction against the appellant.
The High Court in the judgment under appeal noted the facts mentioned hereinbefore by this Court in the decision of D.H. Maniar and allowed the appeal.
This decision was remanded back to the High Court and it was directed that the appellant should be heard afresh in accordance with law because in a previous decision Vaidya, J. by the judgment dated 9th of December, 1975 as mentioned hereinbefore had allowed the appellant 's appeal.
The learned Judge referred to the several decisions and background of the facts and affirmed the decision of the learned trial judge that the payment to be made to the respondent for the use and occupation was compensation and not rent.
The High Court affirmed the decision of this Court and upheld the order of the Court of Small Causes and ordered eviction.
In support of this appeal Sree R.F. Nariman very laboriously took us through the documents.
He submitted that the document in question in the instant case read as a whole was lease and not a licence.
He referred us to the decision of this Court in the case of Associated 1066 Hotels of India Ltd. vs R.N. Kapoor, ; where at page 383 this Court noted that there was a marked distinction between a lease and a licence.
Section 105 of the defined a lease of immovable property as a transfer of a right to enjoy such property made for a certain time in consideration of a price paid or promised.
Under section 108 of the said Act, the lessee is entitled to be put in possession of the property.
A lease involves a transfer of an interest in land, Subba Rao, J. as the learned Chief Justice then was, observed in that case.
This Court referred to the well known decision in the case of Errington vs Errington, ; where Lord Denning reviewing the case law on the subject summarized the position as follows: "The result of all these cases is that, although a person who is let into exclusive possession is, prima facie, to be considered to be tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy." The Court of Appeal in England again in Cobb vs Lane, considered the legal position and laid down that the intention of the parties was the real test for ascertaining the character of a document.
Somervell, L.J., had observed: ".
The solution that would seem to have been found is, as one would expect, that it must depend on the intention of the parties.
" Denning, L.J. also reiterated the same decision.
Reviewing these decisions Denning, L.J. had observed at page 384 of the report (1) that to ascertain whether a document created a licence or lease, the substance of the document must be preferred to the form; (2) the real test was the intention of the parties whether they intended to create a lease or a licence; (3) if the document created an interest in the property, it is a lease; but if it only permitted another to make use of the property, of which the legal possession continued with the owner, it was a licence; and (4) if under the document a party got exclusive possession of the property, prima facie, he was considered to be a tenant; but circumstances might be established which negative the intention to create a lease.
Mr. R.F. Nariman very strenuously relied on the decision of this Court in Mrs. M.N. Clubwala and another vs Fida Hussain Saheb and 1067 others; , at page 653.
This Court emphasised the if the exclusive possession to which a person was entitled under an agreement with a landlord was coupled with an interest in the property, the agreement would be construed not as a mere licence but as a lease.
Mr. Nariman 's point was that the facts of the case were identical to the facts of the present case.
Our attention was drawn to a decision of the Bombay High Court in the case of Sohanlal Naraindas vs Laxmidas Raghunath Gadit, (68 Bombay Law Reporter 400) where Tarkunde, J. Observed that the intention of the parties and exclusive possession were important elements.
This decision was approved in appeal by this Court in Sohan Lal Naraindas vs Laxmidas Raghunath Gadit, where this Court reiterated that the test of exclusive possession was important point.
He drew our attention to the observations of Shah, C.J. at page 321 of the Report.
Reliance was also placed on the observations of Krishna Iyer, J. in the decision of Qudrat Ullah vs Municipal Board, Bareilly, ; where at page 533 of the report Krishna Iyer, J. Observed that there is no simple litmus test to distinguish a lease as defined in section 105, from licence as defined in section 52 of the Easements Act, but the character of the transaction turns on the operative intent of the parties.
To put precisely if an interest in immovable property entitling the transferee to enjoyment was created, it was a lease; if permission to use land without exclusive possession was alone granted, a licence was the legal result.
we are of the opinion that this was a licence and not a lease as we discover the intent.
For this purpose reference may be made to the language used and the restrictions put upon the use of the premises in question by the appellant.
In the document in question the expression "licence" was introduced and clause (2) said that it was only for the business purposes.
The licence fee was fixed.
It permitted user only for 20 hours.
Restriction in the hours of work negates the case for a lease.
Clause (12) is significant which gave to the licensor the right to enter upon the premises and inspect the same at any time.
In our opinion the background of the facts of this case and the background of the entire document negate the contention of the appellant that it was a lease and not a licence.
good deal of submission was made before us that if it was a lease and not a licence, then this point could be taken in aid of the submission that the Court had to jurisdiction, and there was no estoppel.
It was contended that estoppel was a plea in equity and that there was no equity in favour of the respondent.
We were invited to embark upon the traded field of estoppel and equity and very many learned passages from judgments of eminent Judges of Calcutta, Bombay and 1068 of this Court were cited.
But in this case we had not been tempted.
Our attention was drawn to several decisions but in the view we have taken we cannot say that the view taken by the High Court or the Court of Small Causes was incorrect.
It was a possible view.
That is sufficient for us.
The distinction between leave and licence has been well summarised in Halsbury 's Laws of England, Fourth Edition, Volume 27 page 13.
In determining whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the intention of the parties.
Lord Greene MR had observed this in Booker vs Palmer, at 676,677.
This is a salutary test.
The intention here is manifest.
In any event this is a possible view that could be taken.
This Court in Venkatlal G. Pittie & Anr.
vs M/s. Bright Bros. (Pvt).
Ltd., ; and M/s. Beopar Sahayak (P) Ltd. & others vs Shri Vishwa Nath & 5 others, [1987] 2 scale 27, held that where it cannot be said that there was no error apparent on the face of the record, the error if any has to be discovered by long process of reasoning, and the High Court should not exercise jurisdiction under Article 227 of the Constitution.
See in this connection the observations of this Court in Satyanarayan Laxaminarayan Hegde and others vs Mallikarjun Bhavanappa Tirumale, A.I.R. 1960 S.C. 137.
Where two views are possible and the trial court has taken one view which is a possible and plausible view merely because another view is attractive, the High Court should not interfere and would be in error in interfering with the finding of the trial court or interfering under Article 227 of the Constitution over such decision.
In the aforesaid view of the matter, we are clearly of the opinion that in view of the intention of the parties in the document and the facts and circumstances of this case, it was a licence and not a lease.
We need not detain ourselves with the question of estoppel upon which very interesting arguments were advanced before us by Mr. Nariman is noted above.
In the aforesaid view of the matter this appeal must fail as we find no ground to interfere with the decision of the High Court.
The appeal fails and is dismissed.
In the facts and circumstances, there will be no order as to costs.
1069 In view of the fact that the appellant has been carrying on business for some time, we give the appellant time upto 31st March, 1988 to give up and deliver vacant possession provided the appellant files the usual undertaking with the Registrar of the Court of Small Causes, Bombay within three weeks from this date.
N.P.V. Appeal dismissed.

summary:
% The appellant, who was stated to be a monthly tenant of the suit premises, entered into an agreement, which was described as an agreement of 'leave and licence ', with the respondent on 9th February, 1965 and the respondent and the appellant were described therein as licensor and licensee respectively.
It was stated in the agreement that the licensor was seized of the premises in dispute as a monthly tenant and gave and granted 'leave and license ' to the licensee to use and occupy the said premises for a period of five years, merely for the purpose of workshop business, at a monthly compensation of Rs.225 that the licensor shall be entitled to terminate the agreement and cancel and revoke and withdraw the leave and licence granted earlier and to take possession forthwith of the said premises if the licensee committed any default of any terms and conditions or failed to pay the compensation for two months or if the licensee at any time put up false or adverse claim of tenancy or sub tenancy, that the licensee shall pay the electric charges in respect of consumption of electricity and the rent of the said premises should be paid by the licensor only, and that the licensor shall have the full right to enter upon the premises and inspect the same at any time.
1058 In November 1970, the respondent filed an ejectment proceedings against the appellant under section 41 of the .
It was contended by the appellant that there was sub tenancy by the respondent in his favour as monthly tenant.
The trial court passed a decree and ordered the appellant to vacate the premises holding that the agreement was for leave and licence and that the appellant was a licensee and not a subtenant.
On the case being remanded by the Supreme Court in a Special Leave Petition filed by the respondent against the earlier decision of the High Court, allowing the appellant 's special civil application, the High Court upheld the order of the Court of Small Causes, and ordered eviction of the appellant.
In the Special Leave Petition against the aforesaid decision, it was contended that the document in question read as a whole was a lease and not a license.
Dismissing the appeal by special leave, ^ HELD: 1.1 If an interest in immovable property entitling the transferee to enjoyment was created, it was lease; if permission to use land without exclusive possession was alone granted, a licence was the legal result.
[1067D E] 1.2 In determining whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee, decisive consideration is the intention of the parties.
[1068B C] In view of the intention of the parties in the document and the facts and circumstances of the instant case, it was a licence and not a lease.
This is clear from the language used and the restrictions put upon the use of the premises in question by the appellant.
In the document in question the expression "licence" was introduced and clause (2) said that it was only for the business purposes.
The licence fee was fixed.
It permitted user only for 20 hours.
Restriction in the hours of work negates the case for lease.
Clause (12) gives to the licensor right to enter upon the premises and inspect the same at any time.
[1067E F] 1059 1.3 Where two views are possible and the trial court has taken one view which is a possible and plausible view merely because another view is attractive, the High Court should not interfere and would be in error in interfering with the finding of the trial court or interfering under Article 227 of the Constitution over such decision.
[1068E F] H. Maniar and others vs Woman Laxman Kudav, ; ; Miss Mani J. Desai vs M/s. Gayson & Co. Pvt.
Ltd. 73 Bombay Law Reporter 394; Associated Hotels of India Ltd. vs R.N. Kapoor, ; ; Mrs. M.N. Clubwala and another vs Fida Hussain Saheb and others; , at page 653; Sohanlal Naraindas vs Laxmidas Raghunath Gadit, 68 Bombay Law Reporter 400; Sohan Lal Naraindas vs Laximdas Raghunath Gadit, ; Qudrat Ullah vs Municipal Board, Bareilly, [1974] 2 S.C.R. 530; Booker vs Palmer, at 676, 677; Venkatlal G. Pittie & Anr.
vs M/s. Bright Bros. (Pvt) Ltd., [1987] 2 scale 115; M/s. Beopar Sahayak (P) Ltd. & others vs Shri Vishwa Nath & 5 others, [1987]2 scale 27; Satyanaryan Laxminarayan Hegde and others vs Mallikarjun Bhavanappa Tirumale, A.I.R. 1960 S.C. 137 and Halsbury 's Laws of England.
, Fourth Edition, Volume 27 page 13, referred to.


judgement:
Civil Appeal No. 3909 of 1986.
From the Judgment and order dated 29.9.1986 of the Allahabad High Court in C.R. No. 83 of 1986.
Shanker Ghosh and P K. Jain for the Appellants.
Y.S. Chitale.
Madan Lokur, Prashant Bhushan, Beni Parshad, Rajinder Dhawan and Jitendra Sharma for the Respondents.
This appeal arises out of a judgment passed by the High Court of Allahabad in Civil Revision No. 83 of 1986 wherein the learned Judge of the High Court allowed the revision petition set aside the judgment and decree of the Trial Judge and decreed the plaintiff suit for ejectment of the appellant.
The disputed property was let out on June 25, 1976.
The accommodation was for the first time assessed for house tax by the Nagar Palika Ghaziabad with effect from October 1, 1976.
The suit was filed for eviction after termination of tenancy before the trial court and objection was raised that as the shop and the basement were separately let out the tenancy could not be terminated by a single notice that would be invalid.
The trial court therefore dismissed the suit.
The High Court set aside this conclusion of the trial court.
The main ground which was before the High Court was as to whether the provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 ( 'Act ' for short) will be applicable to these proceedings in view of the fact that although the premises were let out in June 1976 but as the assessment was made on October 1, 1976 the provisions of the Act referred to above will not apply for 10 years from October 1, 1976 and therefore the suit could be decreed as the protection available under this Act will not be available to the tenant.
High Court after discussing various decisions came to the conclusion that in view of the language of Section 2 sub clause 2 Explanation 1, it could not be doubted that period of 10 years will commence from 160 the date of assessment i.e. October 1, 1976 that it is in that view of the matter that the learned Judge of the High Court decreed the suit and hence the present appeal.
Learned counsel for the appellant contended that apart from the controversy about the date which should be the starting point for computing the period of 10 years in view of the language of Sections 39 and 40 of the Act, provisions of this Act will be applicable to the present case and therefore a decree for eviction could only be passed.
If it could be passed on anyone of the grounds mentioned in Section 20 clause 2 of this Act in support of this contention the learned counsel placed reliance on decisions in Om Prakash Gupta etc.
vs Dig Vijendrapal Gupta etc.
, 11982] 3 SCR 491 and Vineet Kumar vs Mangal Sain Wadhera, [ On the other hand learned counsel for the respondent contended that the rights of parties will be governed on the basis of the date on which the suit was filed and it was contended that if on the date on which the suit was filed by the respondent the provisions of this Act were not applicable then merely because the proceedings have been pending for all these years it could not be contended that as now 10 years elapsed the decree could not be passed.
Learned counsel placed reliance on a decision in Firms Amar Nath Basheshar Dass vs Tek Chand, 11972] 3 SCR 922 and contended that this is a decision of three Judges Bench which clearly hold that if the suit was filed within a period of exemption then the suit could be decreed and the provisions of the Act will not be applicable.
Learned counsel further contended that in the decision in Vineet Kumar 's case (supra) on which reliance has been placed by learned counsel for the appellant the Firms Amar Naath Basheshar Dass 's case (supra) has not been referred to and decision in Vineet Kumar 's case (supra) is a judgment by a Bench of two Judges.
It was also contended by learned counsel that as till the matter was pending in the High Court 10 years have not been completed and therefore the High Court passed the decree Now it could not be contended that as during the pendency of the proceedings in this Court 10 years have elapsed and therefore the appellant tenant will be entitled to protection of the provisions of Section 20 It was contended that it is well settled that if the right to file a suit accrues on the date of tiling of the suit then the rights will have to be determined on the basis of the law applicable on the date of the suit and not subsequently.
Learned counsel for the appellant contended that the decision in 161 Firms Amar Nath Basheshar Dass 's case (supra) will not be applicable to the present case as in that case this Court was considering the language of a notification issued under the East Punjab Act exempting buildings from the operation of the Act for five years and the view taken by this Court in that decision is based on the language of the notification issued whereas in view of the language of Sections 39 and 40 of the Act which is applicable to the present case that view is not possible and it is because of this that in Vineet Kumar 's case (supra) this Court took the view that if during the pendency of the proceedings 10 years have elapsed the tenant will be entitled to the benefit of the provisions of the Act.
It was contended that in this decision the Court was concerned with the provisions of Section 2 of the Act itself.
Before this Court also the only question that was raised on behalf of the parties was as to whether the provisions of the Act will be applicable or not and as to whether the protection granted to the tenants under this Act will be available to the present appellant Learned counsel for the appellant contended that as during the pendency of this matter in this Court 10 years have elapsed even if the date of completion is taken to be 1.
10.76 which is the date on which the first assessment of this property was made and during the pendency of this matter 1.
10.86 has been crossed now the period of exemption has come to an end and therefore the appellant is entitled to the benefits thereof.
In the alternative it was contended that even if it is held that the rights of parties have to be determined in respect of the date on which the suit was filed still because of the language of Sections 39 and 40 of this Act the appellant tenant will be entitled to protection under this Act Sub clause (2) Sec.
2 of the Act reads as under: "(2) Except as provided in sub section (5) of Section 12, sub section (1 A) of Section 21, sub section (2) of Section 84, Sections 24 A, 24 B, 24 C or sub section (3) of Section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed: Provided that where any building is constructed substantially out of funds obtained by way of loan or advance from the State Government or the Life Insurance Corporation of India or a bank or a co operative society or the Uttar Pradesh Avas Evam Vikas Parishad, and the period of repayment of such loan or advance exceeds the aforesaid 162 period of ten years then the reference in this sub section to the period of ten years shall be deemed to be a reference to the period of fifteen years or the period ending with the date of actual repayment of such loan or advance (including interest), whichever is shorter: Explanation I For the purposes of this sub section, (a) the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction, and in the case of a building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time: Provided that there may be different dates of completion of construction in respect of different parts of a building which are either designed as separate units or are occupied separately by the landlord and one or more tenants or by different tenants: (b)"construction" includes any new construction in place of an existing building which has been wholly or substantially demolished; (c) where such substantial addition is made to an existing building that the existing building becomes only a minor part thereof the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition.
" A perusal of this provision will clearly indicate that the new buildings constructed have been exempted from the operation of this Act for a period of 10 years.
This period of 10 years have to be computed in the manner from the date as indicated in Explanation 1 and it was contended by learned counsel for the respondents that it will be the date on which the first assessment was made and so far as this question is concerned, it is also concluded by a decision of this Court in Om 163 Prakash Gupta 's case (supra) where it has been clearly held while interpreting Sec.
2 Explanation I of this Act that if there is an assessment made then the date of completion of the building, the date from which 10 years are to be computed will be the date on which the first assessment was made.
In this view of the matter therefore it is clear that 10 years have to be computed from 1. 10.76, and it is because of this that even the learned counsel for the appellant did not seriously contend that the 10 years commence from 1.10.76.
It is true that the decision reported in Firms Amar Nath Basheshar Dass 's case (supra) is a decision on the Punjab Act where the question before this Court was about the language of the notification which was issued under the Act exempting the buildings from operation of the Act for a period of S years and it is true that the language of the notification was not identical with the language of Sec.
2 sub clause 2 quoted above.
But apart from it the contention advanced by the learned counsel for the appellant was that because of the language of Section 39 and 40 even if the matter is pending in this Court and 10 years have elapsed, appellant will be entitled to the benefit of the provisions of this Act because according to him the appeal will be a continuation of the suit and therefore the advantage will be available.
It is no doubt true that the appeal is the continuation of the suit and if within the language of Section 39 the appellant is entitled to the advantage of the Section even if the matter is pending in this Court the protection will be available to the appellant but looking to the language of Section 39 it appears that the contention of the learned counsel could not be accepted.
Pending suits for eviction relating to buildings brought under regulation for the first time In any suit for eviction of a tenant from any building to which the old Act did not apply, pending on the date of commencement of this Act, where the tenant within one month from such date of commencement or from the date of his knowledge of the pendency of the suit, whichever be later, deposits in the court before which the suit is pending, the entire amount of rent and damages for use and occupation (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine cent per annum and the landlord 's full cost of the suit, no decree for eviction shall be passed except on any of the grounds 164 mentioned in the proviso to sub section (1) or in clauses (b) A to (g) of sub section (2) of Section 20, and the parties shall be entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary: Provided that a tenant the rent payable by whom does not exceed twenty five rupees per month need not deposit any interest as aforesaid:" It is pertinent to note that this Section applies to those suits which were pending on the date of the commencement of this Act.
Admittedly this Act came into force on 15th July, 1972 and therefore if the suit was pending on that date it is only then that the provisions of Section 39 will come to the assistance of the tenant appellant.
Admittedly this suit was not pending on the date on which this Act came into force.
An attempt was made to contend that so far as the present property is concerned the Act will be deemed to have come into force on the expiry of 10 years i.e. 1.10.86 but this contention could not be accepted as it is very clear from the language of this Act that it applied I only to a suit pending on the date of the commencement of this Act and this is the view taken in the Om Prakash Gupta 's case wherein it was observed: "Further, in order to attract section 39 the suit must be pending on the date of commencement of the Act which is 15th of July, 1972 but the suit giving rise to the present appeal was filed on 23rd of March, 1974 long after the commencement of the Act.
There is yet another reason why section 39 will have no application to the present case.
It is therefore clear that so far as the present appeal is concerned, the provisions of Section 39 will be of no avail.
Section 40 of the Act reads as under: "40.
Pending appeals or revisions in suits for eviction relating to buildings brought under regulation for the first time Where an appeal or revision arising out of a suit for eviction of a tenant from any building to which the old Act did not apply is pending on the date of commencement of this Act, it shall be disposed of in accordance with the provisions of Section 39, which shall mutatis mutandis apply." 165 This Section talks of the pendency of a revision or an appeal arising out of a suit pending on the day on which this Act came into force.
It is clear that provisions of Section 40 will come to the rescue of the appellant tenant only if the suit from which revision or appeal arose was pending on the date of commencement of this Act i.e. 15.7.1972 and therefore it could not be contended that the present revision petition or the appeal either to the High Court or the appellate authority arose out of suit which was pending on the date on which this Act came into force.
Admittedly the suit itself was filed much after the coming into force of this Act.
In this view of the matter therefore, in our opinion, even this contention of learned counsel for the appellant could not be accepted.
It is well settled that the rights of the parties will be determined on the basis of the rights available to them on the date of the suit, but in Vineet Kumar 's case (supra) this Court took the view that if during the pendency of the proceedings 10 years have elapsed the tenant is entitled to the protection under the Act and in coming to this conclusion the Court also considered the language of Section 39 of the Act and it observed: "The appellant in the present case only seeks the protection of the new Rent Act which became applicable to the premises in question during the pendency c.f the litigation.
We see no reason why the benefit of the new Rent Act be not given to the appellant.
Section 20 of the new Rent Act provides a bar to a suit for eviction of a tenant except on the specified grounds as provided in the section.
Subsection (4) of section 20 stipulated that in any suit for eviction on the grounds mentioned in Cl.
(a) to sub section
(2) viz. the arrears of rent, if at the first hearing of the suit the tenant in default pays all arrears of rent to the landlord or deposits in court the entire amount of rent and damages for the use and occupation of the building due from him, such damages for use and occupation being calculated at the same rate as rent together with interest thereon at the rate of nine per cent per annum and the landlord 's cost of the suit in respect thereof after deducting therefrom any amount already deposited by the tenant under sub section (1) of section 30, the court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground.
Section 39 and 40 of the new Rent Act also indicate that the benefit of new Act will be given 166 to the tenant if the conditions contemplated in those sections are satisfied.
Section 39 also indicates that the parties are entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary. " But unfortunately attention of the Court was not drawn to the Om Prakash Gupta 's case (supra) which specifically considered this Act and the language of Section 39 in particular and is a decision of a Bench of three Judges which is binding on us.
The restriction on the right of a landlord to evict a tenant has been provided for in this Act under Section 20 and the language of Section 20 is also significant.
Bar of suit for eviction of tenant except on specified grounds (1) Save as provided in sub section (2) no suit shall be instituted for the eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner: Provided that nothing in this sub section shall bar a suit for the eviction of a tenant on the determination of his tenancy by efflux of time where the tenancy for a fixed term was entered into by or in pursuance of a compromise or adjustment arrived at with reference to a suit, appeal, revision or execution proceedings, which is either recorded in court or otherwise reduced to writing and signed by the tenant.
" This is put in Chapter IV with the heading "Regulation and Eviction" and the section starts with title which is printed in bold "Bar of suit for eviction of tenant except on specified grounds" and again in the wording of the section itself it provides: "No suit shall be instituted for eviction.
" This clearly indicates that the restriction put under Section 20 is to the institution of the suit itself and therefore it is clear that if the provisions of this Act applies then no suit for eviction can be instituted except on the grounds specified in the sub sections of this Section.
Keeping in view the language of this Section if we examine the provisions contained in sub section (2) of Section 2 it will be clear that for a newly constructed building the provisions of this Act will not apply for 10 years and therefore so far as the restriction under Section 20 is concerned they will not apply and therefore it is clear that within 10 years as provided for in clause (2) of Section 2 restriction of the 167 institution of suit as provided for in Section 20 clause (1) quoted above will not be applicable and it is thus clear that during the pendency of the litigation even of 10 years expired the restriction will not be attracted as the suit has been instituted within 10 years and therefore restriction as provided for in Section 20 can not be attracted.
In the light of the discussions above therefore, in our opinion, the contention advanced by learned counsel for the appellant can not be accepted.
The appellant tenant could not be given the advantage of the provisions contained ' in this Act.
In this view of the matter therefore the appeal is without any substance and is dismissed.
It is true that we maintained the decree for eviction passed by the High Court but in view of the fact that as the appellant has been carrying out the business in the premises for a long time for it would be proper to permit the appellant time to make their arrangements for shifting.
We therefore direct that the decree for eviction shall not be executed upto 3 1st March, 1988 on the appellant filing a usual undertaking within four weeks.
In default the respondent shall be entitled to execute the decree forthwith.
In the circumstances of the case parties are directed to bear their own costs.
S.L. Appeal dismissed.

summary:
The appellants are the tenants of the disputed property.
Respondent plaintiff 's suit for eviction of the appellants was dismissed by the trial court.
The High Court in revision set aside the judgment and order of the trial court and decreed the suit for ejectment of the tenants appellants.
The tenants appealed to this Court.
Dismissing the appeal, the Court, HELD: Under the provisions of sub section (2) of Section 2 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, newly constructed buildings stand exempted from the operation of the Act for a period of ten years, which has to be computed from a date to be determined in the manner indicated in Explanation I to section 2(2), which in this case is the date on which first assessment of the premises in dispute was made for house tax by the Nagar Palika, i.e. October 1, 1976.
Provisions of Sections 39 and 40 are of no avail to the appellants as the suit for their eviction was not pending on July 15, 1972, when the Act came into force; the suit being filed much later after coming into force of the Act.
Provisions of the Act are not applicable to the appellants ' case and the protection thereunder granted to the tenants is not available to them.
[166G H; 164C, F] In view of the fact that the appellants had been carrying on business in the premises in question for a long time, the decree for eviction directed not to be executed till March 31, 1988, subject to the appellants ' filing usual undertaking (within four weeks).
[167C D] Om Prakash Gupta, etc.
vs Dig Vijendrapal Gupta, etc., [19821 3 S.C.R. 491 and Vineet Kumar vs Mangal Sain Wadhera, [1985] A.l.
R. S.C. 817, relied upon by the appellants.
159 Firm Amar Nath Basheshar Das vs Tek Chand, [19721 3 S.C.R. 922, relied upon by the respondent.