judgement:
Appeal No. 3273 of 1988.
From the Judgment and Order dated 25 11 1987 of the Central Adminstrative Tribunal Jabalpur in Original Application No. 68 of 1986.
P. Parmeshwaran for the Appellants G.L. Sanghi Ashok Singh and S.K Agnihotri for the Respondents.
The short question which arises for consideration in this case is whether by reason of the absence of one of the members of a Departmental Promotion Committee at a meeting convened for the purpose of making recommendations regarding the promotion of officers to higher posts in the services under the Government of India the recommendations made by the Departmental Promotion Committee at the meeting would become invalid.
The 1st respondent Somasundaram Viswanath was one of the PG NO 149 Officers of the Indian Defence Accounts Service who came within the zone of consideration for promotion to the cadre of Controller of Defence Accounts.
In order to make appropriate recommendations in that behalf the Departmental Promotion Committee convened its meeting on 7.8.1986.
One of the members of the said Committee was the Secretary to the Government of India, Ministry of Defence.
Even though he had been informed about the date and time of the meeting, he could not be present at the meeting and in his absence the remaining members of the Committee made recommendations.
The 1st respondent was graded as 'good ' and was not empanelled.
Aggrieved by the decision of the Departmental Promotion Committee the 1st respondent filed a petition being Original Application No. 68 of 1986 before the Central Administrative Tribunal, Jabalpur Bench questioning the validity of the recommendations made by the Departmental Promotion Committee and praying for the issue of an order prohibiting the appellants from promoting his juniors to the higher cadre.
In the course of his petition Respondent No. 1 raised many pleas, but it is not necessary for us to refer to all of them for the purpose of deciding the present case.
One of the contentions urged by the 1st respondent, which requires to be considered is that the proceedings of the Departmental Promotion Committee at its meeting held on 7.8.1986 stood vitiated on account of the absence of the Secretary to the Government of India, Ministry of Defence, who was one of the members of the Committee.
In reply to the above plea the appellants pleaded that the Secretary to the Government of India, Ministry of Defence was not present in the meeting due to the fact that he had to attend Parliament on that day and that the proceedings were protected by the departmental instructions issued by the Government of India with regard to the procedure to be followed by the Departmental Promotion Committees.
In reply thereto the 1st respondent pleaded that the administrative instructions issued by the Government of India could not override the rules made under the proviso to Article 309 of the Constitution of India and had, therefore, to be ignored.
The Central Administrative Tribunal, which heard the case, proceeded to set aside the recommendations made by the Departmental Promotion Committee on the main ground that the Committee had not been properly constituted at the meeting held on 7.8.1986 because of the absence of the Secretary to the Government of India, Ministry of Defence and, therefore, the proceedings of the Departmental Promotion Committee were not valid.
The Tribunal directed that a fresh Departmental Promotion Committee may be convened for reconsidering the agenda which was before the Departmental Promotion Committee on 7 . 8 appellants have filed this appeal by Special Leave.
PG NO 150 Promotions to the posts in Level l and Level II of the Senior Administrative Grade of the Indian Defence Accounts Service are governed by the Indian Defence Accounts Service (Recruitment) Rules, 1958 (as amended from time to time) (hereinafter referred to as 'the Rules ') promulgated under the proviso to Article 309 of the Constitution of India by the President of India.
Under the Rules recruitments by promotion to the administrative posts in the Indian Defence Accounts Service have to be made by selection on merit with due regard to the seniority on the recommendation of a duly constituted Departmental Promotion Committee.
In Appendix II to the Rules the composition of the Departmental Promotion Commit tees for recommending eligible officers for promotion to the various grades of the Service has been set out.
The Departmental Promotion Committee for purposes of promotion to Level l and Level II of the Senior Administrative Grade should consist of (i) the Chairman Member of the Union Public Service Commission as Chairman, (ii) the Secretary, Ministry of Defence, (iii) the Financial Adviser (Defence Services), and (iv) the Controller General of Defence Accounts as members.
The Rules do not contain the details regarding the functions of the Departmental Promotion Committees, the procedure to be followed by them and the requisite quorum at the meetings of the Departmental Promotion Committees.
These details had been laid down in a number of official memoranda issued by the Government of India from time to time in the form of departmental instructions prior to 30th December, 1976.
The Government of India, however, issued an Office Memorandum bearing No. 22011/6/76 Estt(D) on 30.12.1976 consolidating all the prior administrative instructions governing the functioning of and the procedure to be followed by the Departmental Promotion Committees which were required to be constituted under the several rules of recruitment in force in the various departments of the Government of India.
The preamble of the said Office Memorandum reads thus: "OFFICE MEMORANDUM Sub: Procedure for making promotions and functioning of the Departmental Promotion Committee.
The undersigned is directed to state that the Ministry of Home Affairs (now the Department of Personnel and Administrative Reforms) have in the past issued various Office Memoranda on the subject relating to the constitution and functioning of the Departmental Promotion Committees and PG NO 151 the procedure to be followed in making promotions.
With a view to making such instructions, issued from time to time, handy and available at one place, it has now been decided to consolidate all these instructions.
Accordingly the following instructions are hereby issued on the subject for the guidance of all the Ministries /Departments in the Government . " Paragraph VII of the said Office Memorandum, which deals with "the validity of the proceedings of Departmental Promotion Committees when one member is absent", reads thus: "The proceedings of the Departmental Promotion Committee shall be legally valid and can be operated upon notwithstanding the absence of any of its members other than the Chairman provided that the member was duly invited but he absented himself for one reason or the other and there was no deliberate attempt to exclude him from the deliberation of the DPC and provided further that the majority of the members constituting the Departmental Promotion Committee are present in the meeting." According to Paragraph VII of the Office Memorandum, extracted above, it is clear that the absence of any of the members of a Departmental Promotion Committee, other than the Chairman, would E not vitiate the proceedings of the Departmental Promotion Committee provided that the member absent has been duly invited but he absented himself for some reason and that there was no deliberate attempt to exclude him from the deliberation of the Departmental Promotion Committee and that the majority of the members constituting the Departmental Promotion Committee are present in the meeting.
In the instant case the only person who was absent at the meeting of the Departmental Promotion Committee was the Secretary to the Government of India, Ministry of Defence who could not attend the meeting because he had to be present in Parliament at the same time at which the Departmental Promotion Committee had to meet.
Th e Chairman of the Departmental Promotion Committee was present and the Chairman and the other members who were present constituted the majority of the Departmental Promotion Committee.
It was urged on behalf of the 1st respondent that the Office Memorandum dated 30.12.1976 which contained the various administrative instructions regarding the procedure for making promotions and the functions of the Departmental Promotion Committees being merely in the nature of PG NO 152 administrative instructions could not override the Rules which had been promulgated under the proviso to Article 309 of the Constitution of India.
It is well settled that the norms regarding recruitment and promotion of officers belonging to the Civil Services can be laid down either by a law made by the appropriate Legislature or by rules made under the proviso to Article 309 of the Constitution of India or by means of executive instructions issued under Article 73 of the Constitution of India in the case of Civil Services under the Union of India and under Article 162 of the Constitution of India in the case of Civil Services under the State Governments.
If there is a conflict between the executive instructions and the rules made under the proviso to Article 309 of the Constitution of India, the rules made under proviso to Article 309 of the Constitution of India prevail, and if there is conflict between the rules made under the proviso to Article 309 of the Constitution of India and the law made by the appropriate Legislature the law made by the appropriate Legislature prevails.
The question for consideration is whether in the instant case there is any conflict between the Rules and the Office Memorandum dated 30.12.1976, referred to above.
We have already noticed that there are different rules framed under the proviso to Article 309 of the Constitution of India for making recruitments to services in the different departments and provisions have been made in them for the constitution of Departmental Promotion Committees for purposes of making recommendations with regard to promotions of officers from a lower cadre to a higher cadre.
But these rules are to some extent skeletal in character.
No provision has been made in any of them with regard to the procedure to be followed by the Departmental Promotion Committees and their various functions and also to the quorum of the Departmental Promotion Committees.
These details which were necessary for the proper functioning of the Departmental Promotion Committees, as a matter of practice, were laid down prior to 30.12.1976 by the Government of India in the form of Office Memoranda issued from time to time and that on 30.12.1976 a consolidated Office Memorandum was issued containing instructions with regard to such details which were applicable to all Departmental Promotion Committees of the various Ministries/Departments in the Government of lndia.
said Office Memorandum deals with several topics, such as of the Departmental Promotion Committees, frequency at which Departmental Promotion Committees should meet, matters to be put up for consideration by the Departmental Promotion Committees, the procedure to be observed by the Departmental Promotion Committees.
the procedure o be followed in the PG NO 153 case of an officer under suspension whose conduct is under investigation or against whom disciplinary proceedings are initiated or about to be initiated, validity of the proceedings of the Departmental Promotion Committees when a member is absent, the need for consultation with the Union Public Service Commission, the procedure to be followed when the appointing authority does not agree with the recommendations of a Departmental Promotion Committee, implementation of the recommendations of the Departmental Promotion Committees, ad hoc promotions, period of validity of panels etc.
The Office Memorandum dated 30.12.1976, therefore, is in the nature of a complete code with regard to the topics dealt with by it.
Unless there is anything in the Rules made under the proviso to article 309 of the Constitution of India, which is repugnant to the instructions contained in the Office Memorandum, the Office Memorandum which is apparently issued under article 73 of the Constitution of India is entitle to be treated as valid and binding on all concerned.
In the instant case the Rules do not contain any of these details except indicating who are all the persons who constitute the Departmental Promotion Committee.
We do not, therefore, find any repugnance between the Rules and the Office Memorandum.
In the circumstances we feel that the plea raised by the 1st respondent in is additional affidavit dated 13th May, 1988 (page 132 of the Paper Book) that the Office Memorandum is ineffective cannot be upheld.
We do not agree with the decision of the Central Administrative Tribunal that in the instant case the proceedings of the Departmental Promotion Committee on 7.8.1986 have been vitiated " solely on account of this reason viz., that secretary, Ministry of Defence, one of its members was not present".
We hold that the proceedings, of the Departmental Promotion Committee at is meeting held on 7.8.1986 are not invalid for the above reason.
We, therefore, reverse the aforesaid part of the decision of the Tribunal.
The Tribunal has no doubt in the course of its order referred to certain other matters, but we feel that it proceeded to dispose of the case mainly on the ground that the proceedings of the Departmental Promotion Committee dated 7.8.1986 were vitiated on account of the absence of the Secretary to the Government of India, Ministry of Defence at that meeting.
We notice that adequate attention has not been given to the other aspects of the case and according to us those aspects require fresh consideration at the ands of the Tribunal.
We, therefore, set aside the decision of the Tribunal against which this appeal is filed and remand the case to it to dispose it of afresh in the light of the above observations.
The Tribunal is requested to decide the case within three months from the PG NO 154 date of receipt of a copy of this order.
The appeal is accordingly disposed of.
There shall, however, be no order as to costs.
Y. Lal Appeal disposed of.

summary:
Somasundram Viswanath, Respondent No. 1 herein was working as an officer in the Defence Accounts Service.
Promotions to Level I & Level II of the Senior Administrative Grade of the said Service were governed by the Indian Defence Accounts Service (Recruitment) Rules, l95X (as amended from time to time) promulgated by the President of India under the proviso to article 309 of the Constitution of India.
Under the Rules, recruitments by promotion to the senior administrative posts were to be made by Selection on merit on the recommendations of a duly constituted Departmental Promotion Committee.
In accordance with the said Rules, when the case of the Respondent came within the Zone of consideration for promotion to the cadre of controller of Defence Accounts, the same was placed before the Departmental Promotion Committee, and the said Committee in order to make appropriate recommendations convened its meeting on 7.8.1986.
At the said meeting one of its members i.e. the Secretary to the Ministry of Defence could not be present even though he was duly notified about the date and time of the meeting.
In his absence the remaining members met and made the recommendation.
The 1st Respondent was graded good ' and was not put in the Select panel.
Aggrieved by the said decision Respondent filed a Petition before the Central Administrative Tribunal, Jabalpur Bench, challenging the validity of the recommendations made by the Department Promotion Committee and prayed for an order directing the appellant union of PG NO 146 PG NO 147 India not to promote his juniors to the higher grade.
The principal contention raised by the Respondent before the Tribunal was that the Departmental Promotion Committee was not properly constituted, as one of its members, was absent with the result the proceedings of its meeting held on 7.8.1986 stood vitiated and recommendation made by it should not be acted upon.
On the other hand the Deptt.
contended that the proceedings of the Committee were protected by the administrative instructions issued by the Government of India with regard to the procedure to be followed by the D.P.C.
In reply thereto the 1st Respondent pleaded that the administrative instructions issued by the Government of India could not override the rules made under the proviso to article 309 of the Constitution and the same has to be ignored.
On consideration of the rival contentions the Central Administrative Tribunal came to the conclusion that the D.P.C. had not been properly constituted at the meeting held on 7.8.1986 because of the absence of the Secretary to the Govt.
of India, Ministry of Defence and therefore the proceedings of the said Committee were not valid.
The Tribunal accordingly set aside the recommendations made by the Committee and directed that a fresh D.P.C. may be convened for reconsidering the agenda which was before the Departmental Committee on 7.8.86.
The Union of India being dissatisfied with the aforesaid order of the Tribunal appealed by special leave, to this Court.
Disposing of the appeal.
the Court, HELD: It is well settled that the norms regarding recruitment and promotion of officers belonging to the Civil appropriate Legislature or by rules made under the proviso to Article 309 of the Constitution of India or by means of executive instructions issued under Article 73 of the Constitution of India in the case of Civil Services under the Union of India and under article 162 of the Constitution of India in the case of Civil Services under the State Governments.
[152B] If there is a conflict between the executive instructions and the rules made under the proviso to Article 309, the rules made under the proviso lo Article 309 prevail, and if there is a conflict between the rules made under the proviso to Article 309 and the law made by the appropriate Legislature the law made by the appropriate Legislature prevails.
[152C] PG NO 148 The Office Memorandum dated 30.12.1976 1s in the nature of complete code with regard to the topics dealt with by it.
Unless there is anything in the Rules made under the proviso to Article 309 which is repugnant to the instructions contained in the Office Memorandum the Office Memorandum which is apparently issued under Article 73 or the Constitution is entitled to be treated as valid and binding on all concerned.
[153B C] This Court does not agree with the decision of the Central Administrative Tribunal that in the instant case the proceedings of the Departmental Promotion Committee on 7.8.1986 have been vitiated solely on account of the reason that the Secretary Ministry of Defence, one of its members was not present at the meeting of the Committee.
The proceedings of the Departmental Promotion Committee at its meeting held.
on 7.8.1986 are not invalid on this account.
[153E] The decision of the Tribunal set aside and the case remitted to the Tribunal to dispose it of afresh.
[153G]


judgement:
Appeal No. 84 of 1957.
Appeal from the judgment and decree dated November 7, 1955, of the Bombay High Court in Appeal No. 629 of 1955, arising out of the judgment and decree dated August 9, 1955, of the.
City Civil Court, Bombay, in Suit No. 2178 of 1954.
A.V. Viswanatha Sastri and I. N. Shroff, for the appellants.
Purshotam Tricumdas and C. P. Lal, for the respondents.
March 31.
The following Judgment of the Court was delivered by IMAM J.
The sole question considered and decided by the High Court was whether the suit filed by the appellants in the City Civil Court could be entertained by that Court, having regard to the provisions of section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Act).
The High Court was of the opinion that the City Civil Court had no jurisdiction to entertain the suit.
It did not pronounce any opinion on the merits of the appellants ' case.
The only question which requires con sideration in this appeal is whether the High Court correctly decided that the City Civil Court had no jurisdiction to entertain the suit filed by the appellants.
The first plaintiff in the suit before the City Civil Court, was a tenant of the premises in question under the first defendant.
The second and third plaintiffs were persons to whom the said premises were sublet by 369 the first plaintiff.
The first defendant as landlord of the premises in suit gave notice to quit to the first plaintiff on December 6, 1947.
Thereafter, he filed suit ' No. 483/4400 of 1948 in the Court of Small Causes Bombay on April 29,1948, whereby he sought to evict the first plaintiffs To that suit the first defendant also made the second and the third plaintiffs parties alleging that they were trespassers and had no right to be on the premises.
The Small Cause Court held that the second and third plaintiffs were not lawful subtenants and the subletting by the first plaintiff to them being contrary to law the latter had deprived himself of the protection of the Act.
It accordingly passed a decree for eviction of all the plaintiffs of the present suit.
An appeal against the decree was unsuccessful and a revisional application to the High Court of Bombay was summarily dismissed by that Court.
Thereafter, the present suit No. 2178 of 1954 was filed by the appellants in the Bombay City Civil Court on September 20, 1954.
In this suit the appellants prayed for a declara tion that the first plaintiff was a tenant of the defendants and was entitled to protection under the Act and that the second and the third plaintiffs were lawful subtenants of the first plaintiff and were entitled to possession, use and occupation of the premises as subtenants thereof.
The City Civil Court held that it had jurisdiction to entertain the suit but dismissed the suit on the ground that there bad been no lawful subletting, by the first plaintiff of the premises to the second and the third plaintiffs as the provisions of section 10 of the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944 (Bombay Act No. VII of 1944) (hereinafter referred to as the Bombay Rents Act, 1944) had not been properly complied with.
Against that decision the appellants appealed to the Bombay High Court which was dismissed.
The High Court disagreed with the view of the Judge of the City Civil Court that he had jurisdiction to entertain the suit but did not record any decision on the merits of the appellants ' case.
The preamble of the Act states that it was expedient 47 370 to amend and consolidate the law relating to the control of rents and repairs of certain premises, of rates of hotels and lodging houses and of evictions.
The entire provisions of the Act read as a whole show that the Act was passed to achieve that purpose.
The Act defines " landlord " to mean " any person who is for the time being, receiving, or entitled to receive, rent in respect of any premises whether on his own account or on account, or on behalf, or for the benefit of any other person or as a trustee, guardian, or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant ; and includes any person not being a tenant who from time to time derives title under a landlord; and further includes in respect of his subtenant a tenant who has sublet any premises " and " tenant " to mean " any person by whom or on whose account rent is payable for any premises and includes (a) such subtenants and other persons as have derived title under a tenant before the coming into operation of this Act, (a) any person to whom interest in premises has been transferred under the proviso to section 15, (b) any person remaining, after the determination of the lease, in possession, with or without the assent of the landlord, of the premises leased to such person or his predecessor who has derived title before the coming into operation of this Act, (c) any member of the tenant 's family residing with him at the time of his death as may be decided in default of agreement by the Court.
" Section 12 gives protection to a tenant from eviction if he pays or is ready and willing to pay standard rent and permitted increases.
Section 13 states the grounds upon which the landlord is entitled to recover possession of any premises.
Amongst the numerous grounds one is if the tenant had since the coming into operation of the Act sublet the whole or part of the premises or assigned or transferred in any other manner his interest therein.
Section 14 states: ,,Where the interest of a tenant of any premises is determined for any reason, any subtenant to whom the premises or any part thereof have been lawfully 371 sublet before the coming into operation of this Act shall subject to the provisions of this Act, be deemed to become the tenant of the landlord on the same terms and conditions as he would have held from the tenant if the tenancy had continued.
" Section 28 of the Act deals with jurisdiction of courts and it states: " (1) Notwithstanding anything con tained in any law and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for this provision, be within its jurisdiction, (a) in Greater Bombay, the Court of Small Causes, Bombay, (aa) in any area for which, a Court of Small Causes is established under the Provincial Small Cause Courts Act, 1887, such Court and (b) elsewhere, the Court of the Civil Judge (Junior Division) having jurisdiction in the area in which the premises are situate or, if there is no such Civil Judge, the court of the Civil Judge (Senior Division) having ordinary jurisdiction, shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions and subject to the provisions of subsection (2), no other court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question." Section 29 deals with appeals.
It provides that there will be no further appeal from the appellate order.
Section 29A, however, states that nothing contained in sections 28 or 29 shall be deemed to bar a party to a suit, proceeding or appeal mentioned therein in which a question of title to premises arises and is determined, from suing in a competent court to establish his title to such premises.
The plaint in the suit filed by the appellants in the City Civil Court clearly asserts that the first plaintiff was entitled in law to sublet the premises in question to the second, and third plaintiffs and that there had been a lawful subletting of the premises to them.
It 372 was not necessary for the first plaintiff to comply with the provisions of section 10 of the Bombay Rents Act, 1944.
It further alleged that the Appeal Court of Small Causes of Bombay erred in holding that the first plaintiff could sublet the premises only if he had complied with the provisions of section 10 of the aforesaid Act.
According to para.
11 of the plaint the plaintiffs asserted that they were always ready and willing to pay the rent in respect of the said premises and to observe and perform the terms and conditions of the tenancy.
Paragraph 12 states the declaration which the plaintiffs prayed for in the suit, which is in the following terms: " The plaintiffs submit that they are entitled to a declaration that 1st plaintiff is a tenant of the said premises within the meaning of the Bombay Rents, Hotel and Lodging House Rates Control Act of 1947, and that the 2nd and 3rd plaintiffs are entitled to the possession, use and occupation of the said premises as the lawful subtenants of the 1st plaintiff in respect of the said premises".
Clauses (a) and (b) of para.
18 of the plaint contain the relief sought by the plaintiffs.
They are in substance what is stated in para.
12 though separately stated for the first plaintiff and second and third prayer in cl.
(c) of the defendants, their plaintiffs respectively.
The para an injunction against servants or agents restraining them from proceeding further with the execution of the decree of the Court of Small Causes in suit No. 483/4400 of 1948.
It is manifest from the assertion in the plaint and the nature of the relief asked for that the plaintiffs based their case on the provisions of the Act.
According to them, the Act gave the first plaintiff protection and the second and third plaintiffs were entitled to remain in possession as subtenants of the first plaintiff.
They accordingly sought to avoid eviction by seeking an injunction against the execution of the decree for eviction.
One of the grounds upon which a landlord is permitted to evict a tenant under section 13 of the Act is that he has since the coming into operation of the Act, sublet the premises or assigned or transferred in any other manner his interest therein.
The 373 Act, however, saved a subletting before its commencement, provided the premises had been lawfully sublet.
"Tenant " in the Bombay Rents Act, 1944, means " any person by whom or on whose account rent is payable for any premises, and includes every person I from time to time deriving title under a tenant.
" It was never pretended here or in the High Court, as indeed it could not be, that outside the Act a subtenancy would continue to subsist and the sub tenant would become the tenant when the principal tenancy itself had been lawfully terminated.
As the definition of "tenant " in the Bombay Rents Act, 1944, included a subtenant, that Act required, under section 10, certain conditions to be complied with for the creation of a lawful subtenancy, as a statutory status of a tenant was being conferred on a subtenant unknown to the ordinary law.
Even a lawful termination of the principal tenancy would not affect the subtenant.
In suit No. 483/4400 it was finally held by the Appeal Court that the first plaintiff had not lawfully sublet the premises and as his tenancy had been terminated he and his subtenants were liable to be evicted.
The plaintiffs seek for a redetermination of these very questions in the suit filed by them in the City Civil Court.
The plaintiffs rely upon section 29A of the Act in justification of the suit filed by them in the City Civil Court.
According to them, questions of title are expressly allowed to be reagitated in a competent Civil Court other than those specified in section 28 even if such a question arose and was determined by a court exercising jurisdiction under that section.
This contention of the plaintiffs makes it necessary to construe the provisions of sections 28 and 29A of the Act.
In a suit for recovery of rent where admittedly one party is the landlord and the other the tenant, section 28 of the Act explicitly confers on courts specified therein jurisdiction to entertain and try the suit and expressly prohibits any other court exercising jurisdiction with respect thereto.
Similarly, in a suit relating to possession of premises where the relationship of landlord and tenant admittedly subsists between the parties, jurisdiction to entertain and try such a suit is in the 374 courts specified in section 28 and no other.
All applications made under the Act are also to be entertained and disposed of by the courts specified in section 28 and no other.
In all such suits or proceedings the courts specified in section 28 also have the jurisdiction to decide all claims or questions arising out of the Act or any of its provisions.
The words employed in section 28 make this quite clear.
Do the provisions of section 28 cover a case where in a suit one party alleges that he is the landlord and denies that the other is his tenant or vice versa and the relief asked for in the suit is in the nature of a claim which arises out of the Act or any of its provisions ? The answer must be in the affirmative on a reasonable interpretation of section 28.
Suit No. 483/4400 of the Court of Small Causes, Bombay was admittedly by a landlord.
Eviction of the tenant and those to whom he had sublet the premises was sought on the ground that the latter were trespassers and the former was not entitled to remain in possession, that is to say, that none of the defendants to that suit were protected from eviction by any of the provisions of the Act.
The suit, in substance, was a denial of the right of the defendants as tenants.
The claim of the defendants was that they were protected by the provisions of the Act.
In such a suit the claim of the defendants was one which arose out of the Act or any of its provisions and only the courts ,specified in section 28 and no other could deal with it and decide the issue.
The present suit filed in the City Civil Court raised in substance a claim to the effect that the plaintiffs were the tenants of the premises within the meaning of the Act.
Such a claim was one which arose out of the Act or any of its provisions.
The suit related to possession of the premises and the right of the landlord to evict any of the plaintiffs was denied on the ground that the first plaintiff was a tenant within the meaning of the Act and the premises had been lawfully sublet by him to the second and third plaintiffs.
The City Civil Court was thus called upon to decide whether the first plaintiff was a tenant of the premises within the meaning of the Act and whether he had 375 lawfully sublet the same to the second and third plaintiffs.
The City Civil Court, therefore, had to determine whether the plaintiffs had established their claim to be in possession of the premises in accordance with the provisions of the Act.
As the tenancy of the first plaintiff had been terminated by the landlord, this plaintiff could resist eviction only if he established his right to continue in possession under the provisions of the Act.
On the termination of the tenancy of the first plaintiff, outside the provisions of the Act, the subtenancy would come to an end and the landlord would be entitled to possession.
This could be denied to him only if the second and third plaintiffs could establish that the premises had been lawfully sublet to them and under section 14 of the Act they must be deemed to be tenants of the premises.
in other words, the City Civil Court could not decree the suit of the plaintiffs unless their claim to remain in possession was established under the Act or any of its provisions.
Independent of the Act the plaint in this suit disclosed no cause of action.
Section 28 obviously contemplates the filing of any suit relating to possession.
of any premises to which any of the provisions of Part 11 of the Act apply between a landlord and a tenant and it authorizes the court to deal with any claim or question arising out of the Act or any of its provisions in such a suit.
The suit of the plaintiffs filed in the City Civil Court certainly is one relating to possession of premises to which the provisions of Part 11 of the Act apply and in that suit claims and questions arising out of the Act or any of its provisions had to be dealt with.
It was, however, suggested that the suit in the City Civil Court was not one between a landlord and a tenant because the defendants of this suit did not admit that the plaintiffs were the tenants of the premises in question.
Section 28 applies to a suit where admittedly the relationship of landlord and tenant within the meaning of the Act subsists between the parties.
The plaint in the suit in the City Civil Court admits that the defendants were landlords of the premises at various stages and the plaintiffs were their tenants.
The suit, therefore, was 376 essentially a suit between a landlord and a tenant.
The suit did not cease to be a suit between a landlord and a tenant merely because the defendants denied the claim of the plaintiffs.
Whether the plaintiffs were the tenants would be a claim or question arising out of the Act or any of its provisions which had to be dealt with by the court trying the suit.
On a proper interpretation of the provisions of section 28 the suit contemplated in that section is not only a suit between a landlord and a tenant in which that relationship is admitted but also a suit in which it is claimed that the relationship of a landlord and a tenant within the meaning of the Act subsists between the parties.
The courts which have jurisdiction to entertain and try such a suit are the courts specified in section 28 and no other.
No doubt section 29A expressly provides that nothing contained in section 28 or section 29 shall be deemed to bar a party to a suit, proceeding or appeal, mentioned therein, in which a question of title to premises arises and is determined, from suing in a competent court to establish his title to such premises.
Even if it be assumed that a claim to a right to tenancy of premises is a question of title to the premises, is that a title which section 29A permits a party to establish in a com petent court other than that specified in section 28 ? If it is possible to avoid a conflict between the provisions of section 28 and section 29A on a proper construction thereof, then it is the duty of a court to so construe them that they are in harmony with each other.
It is possible to conceive of cases where in a suit under section 28 a question of title to premises which does not arise out of the Act or any of its provisions may be determined incidentally.
Any party to the suit aggrieved by such a determination would be free to sue in a competent court to establish his title to such premises by virtue of the provisions of section 29A.
On the other band, in a suit where a question of title entirely arises out of the Act or any of its provisions, the jurisdiction to try such a suit was exclusively vested in the courts specified in section 28 and no other.
That is to say, a title which could not be established outside the Act but 377 which arose under the provisions of the Act by virtue of a claim made thereunder must be determined by a court specified in section 28 and a title de hors the Act may be determined in any other court of competent jurisdiction.
The Act purported to amend and consolidate the law relating to the control of rents of certain premises and of evictions.
It defined " landlord " and " tenant " to have a meaning wider in scope and concept than those words have under the ordinary law.
Any one, who was a landlord or a tenant, as defined in the Act, would have to conform to the provisions of the Act and all claims to such a status would have to be determined under the provisions of the Act as they would be claims arising out of it.
The Act specially provided that the courts specified in section 28 shall have the jurisdiction to deal with any claim or question arising out of the Act or any of its provisions and expressly excluded any other court from having such jurisdiction.
It is difficult to accept the suggestion that the legislature intended, after setting up special courts under section 28 to deal with such matters, that the same should be reagitated and redetermined in another suit by a court not specified in section 28.
By enacting section 29A the legislature clearly intended that no finality should be attached to the decision of a court trying a suit under section 28 on a question of title de hors the Act.
The provisions of the Act, on the other hand, clearly indicate that all claims or questions arising out of the Act or any of its provisions, even though they may be in the nature of a title to the premises, were to be determined by the courts specified in section 28 and no other.
Some reference was made to section 49 of the which provides that recovery of possession of any immovable property under Ch.
VII of the Act shall be no bar to the institution of a suit in the High Court for trying the title thereto.
The provisions of this section render no assistance in the matter of interpretation of sections 28 or 29A.; Chapter VII of the deals with the recovery of possession of 48 378 immovable property from a person including a tenant.
The provisions of section 41 onwards prescribe a summary mode for recovery of possession which could even be stayed by the Small Cause Court if the provisions Of section 47 were complied with.
Indeed, under section 41 no claims or rights are determined.
In such a situation it is clearly understandable that nothing contained in Ch.
VII could be a bar to the institution of a suit in the High Court for trying the title to the immovable property.
In a suit under section 28 the court has to determine all questions relating to recovery of rent or relating to possession and all claims or questions arising out of the Act or any of its provisions.
Section 29 provides for an appeal against the decision of the court.
Under Ch.
VII of the there is no provision for an appeal against an order directing recovery of possession.
In our opinion, the High Court correctly decided that the suit filed by the plaintiffs, who are the appellants in this appeal, could not be determined by the City Civil Court.
On behalf of the appellants a request was made that if the appeal should fail, they may be given some time to vacate the premises.
The High Court in dismissing the appeal had directed " Decree not to be executed for a fortnight ".
In granting special leave this Court had granted an ex parte stay, staying the execution of the decree in suit No. 483/4400 of 1948 of the Court of Small Causes, Bombay until the 16th day of January, 1956 and had directed that the stay application be posted for hearing on that date.
On that (lay the application for stay was allowed on two conditions being fulfilled and on the non compliance of which the stay order would stand vacated.
On February 19, 1957, another order was passed by this Court when its attention was drawn to the non compliance of the conditions stated in the order of January 16, 1956, on the part of the appellants.
The stay order was not vacated as the appellants were ordered to do certain things and because of the undertaking given by them that they would deliver forthwith possession of the premises to the respondents in 379 the event of the appeal being dismissed or decided against them.
Having regard to the undertaking given, as also the fact that execution of the decree in suit No. 483/4400 of the Court of Small Causes, Bombay has been delayed long enough.
, we are unable to accede to the request made by the appellants.
The appeal is accordingly dismissed with costs.
Appeal dismissed.

dataset_name: IN-Abs

summary:
A who was a tenant of N sub let the premises to B and C. N filed a suit for ejectment against A, B and C in the Court of Small Causes, Bombay, on the ground of illegal sub letting.
The suit was decreed.
Thereafter, A, B and C filed the present suit in the Bombay City Civil Court for a declaration that A was a tenant of N and was protected from eviction by the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, and that B and C were lawful sub tenants of A and were as such entitled to possession, use and occupation of the premises.
The City Civil Court held that it had jurisdiction to entertain the suit but dismissed it on the ground that there was no lawful subletting.
On appeal, the Bombay High Court held that the City Civil Court had no jurisdiction to entertain the suit and dismissed the appeal without going into the merits : Held, that the High Court was right in holding that section 28 of the Act barred the City Civil Court from entertaining the suit.
Section 28 explicitly confers on courts specified therein jurisdiction to entertain a suit between a landlord and a tenant in respect of a claim which arose out of the Act or any of its provisions, 368 and expressly prohibits any other court exercising jurisdiction with respect thereto.
In the present suit the claim being one which arose out of the Act, and the City Civil Court not being a court specified in section 28, it could not entertain the suit.
Though section 29A of the Act allows questions of title to be regarded in a civil court, it applies only to titles which do not arise out of the Act or any of its provisions; and titles which could riot be established outside the Act but which arose under the provisions of the Act by virtue of a claim made thereunder must be determined by a court specified in section 28.


judgement:
ivil Appeal Nos.
1594 1595 0f 1986.
From the Judgment and Order dated 23.8.1985 of the Delhi High Court in S.A.O. No. 185 and I84 of 1983.
Avadh Behari Rohtagi, M.S. Maan and B.S. Maan for the Appellant.
Harish N. Salve, S.K. Mehta, Vijay Makhija, R. Jaganath Goulay, S.A. Sarin and Aman Vachhar, for the Respondents.
The Judgment of the Court was delivered by NATARAJAN, J.
Both the appeals by special leave have been filed by the same appellant and are directed against a common judgment delivered by the High Court of Delhi in two connected second appeals dismissing the Execution Applications filed by the appellant against the respondents in the two appeals under Section 21 of the Delhi Rent Control Act (for sho rt 'the Act ' hereinafter).
The Execution Applications were dismissed by the Rent Controller but on appeal by the appellant herein they were allowed and the tenant/respondent in each of the applications was directed to surrender possession in a month 's time.
The High Court, however, reversed the order of the Rent Control Tribunal in the Second Appeals preferred by the respondents a dismissed the Execution Applications.
The aggrieved appellant has preferred these appeals.
It was the appellant 's case that she had obtained the sanction of the Additional Rent Controller, New Delhi on 26/27.2.76 and there after leased out specified portions in her property bearing No. N 57, Panchseel Park, New Delhi to the respondents under separate leases of a limited period of two years commencing from 1.3.76.
According to here the rear portion in the ground floor consisting of a drawing cum dining hall a bed room, a bath room and other facilities were leased out to the tenant Maj.
R.C. Chhiba (respondent in CA No. 1594 of 1986)and the first and second floors comprising of four bed rooms with attached bath rooms and other facilities were leased out to the tenant Tewari (respondent in CA 1595 of 1986) and each of the tenants was to pay a sum of Rs.50 per month for the respective portion PG NO 245 leased out to them.
On the ground the two respondents failed to vacate the portions leased out to them at the end of the two years period, the appellant filed Execution Applications under Section 21 of the Act to seek an order from the Rent Controller for delivery of possession of the leased portions: The common defence put forth by the two respondents was that there was a single tenancy and not two tenancies and they were jointly inducted into possession of the entire leased portion even in the month of December 1975 under an oral lease and as such, their tenancy was not referable to the sanction given by the Rent Controller on 26/27.2.76.
To substantiate their contentions, the respondents placed reliance on the payment of a sum of Rs.1,700 by them on 1;0.12.1975 as security deposit and the payment of a sum of Rs.5,100 by means of cheque on 29.12.1975 towards advance payment of rent for three months.
They alleged that inspite of their having been inducted into possession in December 1975 itself, the respondent mislead them by saying that the oral tenancy required formal sanction by the Rent Controller and hence they should appear before the Rent Controller and have their statements recorded by him.
It ws only after giving their statements before the Rent Controller they suspected the motives of the appellant and hence they refused to execute lease deeds in the month of March 1976 as desired by the appellant.
The Rent Controller.
After a detailed consideration of the evidence adduced by the parties accepted the case of the respondents and held that an oral tenancy had been created in favour of the respondents even in the month of December 1975 and as such their tenancy rights were not governed by the sanction given by the Rent Controller under Section 21 of the Act and further more the sanction of the Rent Controller was vitiated by fraud in that it was obtained by suppressing the true facts from the notice of the Rent Controller.
It was further held that the order of sanction of the Rent Controller suffered from an infirmity due to the appellant failing to glove the reasons for her wanting to let out the property for a limited period.
We need not however concern ourselves about that aspect of the matter.
The Rent Control Tribunal, in the appeals preferred to it, however differed from the Rent Controller and held that even if he respondents had been inducted into possession in December 1975 under an oral tenancy, they must be deemed to have impliedly surrendered their earlier tenancy and consented to acquire fresh tenancy under the sanction granted by the Rent Controller on 26/27.2.76.
On the PG NO 246 question whether the sanction of the Rent Controller was vitiated by fraud, the Appellate Tribunal held that the respondents ought to have brought to the notice of the Rent Controller without delay the fraud practised by the appellant and since they had failed to act promptly they were not entitled to seek nullification of the sanction of the Rent Controller on the ground of fraud.
In accordance with its conclusions, the Tribunal allowed the appeals preferred by the appellant and held that the Execution Applications were maintainable and directed the respondents to deliver possession to the appellant of the leased portions in a month 's time.
It was then the turn of the respondents file second appeals to the High Court against the order of the Rent Control Tribunal.
The High Court allowed the appeals holding that since the respondents were already given tenancy rights they would not be governed by the sanction given by the Rent Controller on 26/27.2.76 and furthermore the sanction order itself was unenforceable as it was vitiated by fraud.
The High Court also held that no question of implied surrender of the earlier tenancy would arise when the Rent Controller gave sanction for limited tenancy rights being given to the respondents in as much as the purported new lease was void in law and incapable of affording scope for any surrender of a pre existing lease.
Consequently the High Court allowed the second appeals and restored the order of the Rent Controller dismissing the Execution Applications.
Mr. Rohtagi, learned counsel for the appellant formulated his propositions as under to contend that the High Court had erred in allowing the appeals and dismissing the Execution Applications: 1.
The sanction given by the Rent Controller on 26/27.2.76 to the appellant permitting her to grant limited tenancy rights to the respondents was fully in accordance with Section 21 of the Act and it did not suffer from any defect or infirmity.
(2) The order of sanction was not vitiated by fraud as the respondents were fully in the know of things and were aware of the nature and purpose of the application made before the Rent Controller and had willingly appeared before the Rent Controller and solemnly declared before him that they were willing to take the premises on lease for a limited period of two years commencing from 1.3.1976.
(3) In any event the respondents are dis entitled under law to set up a plea of fraud to seek nullification of the PG NO 247 sanction granted by the Rent Controller because the respondents had not only failed to bring forthwith to the notice of the Rent Controller the fraud committed by the appellant but on the other hand they had availed of the benefit of the permission given by the Rent Controller for the full period of two years and thereby they had lost their power of avoidance of the transaction.
(4) Even if the order of sanction was vitiated by fraud, the tenancy created thereunder was only a voidable transaction and not a void one and, as such, by reason of the respondents having failed to avoid the contract and instead having availed the benefit of it for the full period of two years, they were not entitled to refute the validity or the binding nature of the sanction granted by the Rent Controller for creation of limited tenancy rights in their favour.
(5) Even if it were to be held that the respondents had already been inducted into possession of the leased premises on an oral tenancy in the month of December 1975 itself, they must be deemed to have impliedly surrendered their tenancy rights under the oral lease when they agreed to accept the limited tenancy rights given to them in pursuance of the sanction of the Rent Controller.
Before we examine the contentions of Mr. Rohtagi, we may appositely advert to certain facts emerging from the evidence and the inferences resulting therefrom.
The relevant factors requiring mention are as follows.
The two respondents are not stranger but are brothers and they have been inducted into possession on one and the same day, i.e. on 10th December 1975.
Though the appellant would say that different portions of the house were leased out to them under separate tenancies, the fact remains that a sum of Rs.1,700 had been paid by them towards security deposit on 10.12.1975.
The appellant has no doubt acknowledged the payment under two receipts but both the receipts have been typed on the same paper.
The receipts would read as if a sum of Rs.850 had been received separately from each one of them but the recital is of no consequence because the respondents have paid the appellant a sum of Rs.5,100 by means of a single cheque towards advance rent for a period of three months at the rate of Rs.1,7)0 per month.
The appellant has tried to explain away the payment by saying that the payment represented a sum of PG NO 248 Rs.2,550 given by each of the respondents for meeting the expenses of white washing, colour washing and for effecting repairs to the premises.
It has, how ever, been found that no such works were carried out.
There is the further fact that while the ground floor portion leased out consisted of only a drawing cum dining hall, one bed room and one bathroom, the first and second floors consisted of four bed rooms together with bathrooms etc.
It is inconceivable that irrespective of the difference in the size and nature of the two portions the respondents would have consented to pay the same rate of rent to the appellant for the portions alleged to have been leased out to them.
It is also worthy of note that the tenancies said to have been granted to the two respondents are for the same period, i.e. from 1.3.76 to 28.2.78.
If all these factors are taken note of, the only conclusion that can be reached is that only a single tenancy in favour of both the respondents should have been created for the entire portion leased out and not two tenancies, viz. one for the ground floor and the other for the first and second floors and that the story of two tenancies put forward by the appellant is a make believe affair It is in this background the appellant 's contentions have to be examined.
It is true that the appellant as well as the respondents appeared before the Rent Controller on 26/27.2.76 and gave statements to the effect that the appellant did not require the use of the leased premises for a period of two years commencing from 1.3.76 and that the respondents were willing to take the respective portions marked in the plan exhibit A I produced by the appellant for a limited period but even so the question would arise whether the order passed by the Rent Controller can be deemed a valid and legal sanction given under Section 21.
The answer has to be clearly in the negative because the appellant had already let out the premises to the respondents and as such there was no question of the appellant not being in need of the leased portion for a period of two years from 1.3.76.
It has been held in Inder Mohan Lal vs Ramesh Khanna, l l987] IV SCC 1 at page 9 that in order to attract Section 21 four conditions must be fulfilled.
The relevant portion reads as follows: "Therefore the first condition must be that the landlord must not require the premises either in whole or part of any premises for a particular period.
Secondly, the landlord must obtain the permission of the Controller in the prescribed manner.
Thirdly, letting of the whole or part of the premises must be for residence.
Fourthly, such letting out must be for such period as may be agreed in writing.
" PG NO 249 Applying the above tests, it may be seen that in this case the very first condition has not been fulfilled.
When the appellant had already parted with her possession of the leased portions by inducting the respondents into possession in December 1975 itself, the statement of the appellant before the Rent Controller on 26/27.2.76 made as if she was in possession of the house and she would not be needing the house for her occupation for a period of two years from 1.3. ]976) was a meaningless statement besides being a subversive statement as well.
As pointed out in S.B. Noronah vs Prem Kumari, [1980] l SCR 281 Section 2 I has been provided in the Act to offer a pragmatic compromise formula to satisfy the ever increasing demand of rental accommodation by non owners of houses on the one hand and the reluctance of the owners of houses due to genuine apprehension entertained by them on the other in letting out their houses in whole or in part even when they were not in need of the house or portion of it lest the tenants should set up statutory tenancy rights and refuse to vacate the premises at the end of the lease period.
What the Section envisages is the creation of tenancy rights after getting the sanction of the Rent Controller.
Such being the case the landlord should make known to the Rent Controller, if there is already a tenant in occupation of the premises, the factum of his possession and the terms of the tenancy and satisfy the Rent Controller, that notwithstanding a tenant being in occupation of the premises under an earlier tenancy he should be granted sanction under section I to confer limited tenancy rights in favour of the existing tenant himself or in favour of .I new tenant.
Section ' I was not intended to obtain post facto sanction of a tenancy that had already been created by suppressing relevant information from the Rent Controller so as to enable the landlord to straightaway recover possession of the leased property by filling an application under Section 2l of the Act after the expiry of the period for which permission to lease had been granted by the Rent Controller.
Such being the case when the appellant had already put the respondents in possession of the property in December 1975 she could not have bona fide made a statement before the Rent Controller that she would not be requiring the premises for her own occupation from l.3.1976) onwards for a period of two years.
he fact that the respondents also appeared before the Rent Controller and gave statements in tune with the statement made by the appellant cannot improve the situation in any manner because a statement made in contravention of facts.
whether made by one or both the contracting parties, cannot alter the truth of the situation or cure the lacuna of withholding of relevant information from the Rent PG NO 250 Controller.
We cannot therefore accept the contention of the appellant 's counsel that the order passed by the Rent Controller on 26/27.2.76 granting sanction to the appellant to confer limited tenancy rights on the respondents did not suffer from any defect or infirmity.
As regards the next contention of Mr. Rohtagi that the appellant had not committed any fraud when she sought for and obtained sanction from the Rent Controller to grant limited tenancy rights to the respondents and that in any event the respondents were fully in the know of things and were therefore estopped from raising a plea of fraud to resist the Execution Applications, the argument is based on a misconception of the real perspective from which the matter Should be viewed.
What is of relevance is not whether the appellant had committed any fraud upon the respondents but whether the appellant had fraudulently suppressed relevant materials from the notice of the Rent Controller and had thereby obtained an order of sanction from the Rent Controller to lease out the property for a period of two years from 1.3.1976.
There is no denying the fact that the appellant had failed to disclose to the Rent Controller that she had already inducted the respondents into possession and inspite of it she was seeking permission under Section 21 in order to restrict the tenancy rights of the respondents to a period of two years with effect from 1.3.1976.
Had she disclosed the real state of affairs it is doubtful whether the Rent Controller would have given his approval to the appellant to restrict the tenancy rights of the respondents, who were already in possession, to a period of two years in substitution of the rights available to them as statutory tenants under the Act.
We do not however rule out the possibility of a Rent Controller granting sanction under Section 21 to a landlord to let out his premises in whole or in part for a limited period to a tenant even if the tenant had already been inducted into possession but such sanction has to be obtained after a full an i frank disclosure of all factors including the circumstances under which the tenant had been put in possession even before the Rent Controller 's sanction was obtained and before an agreement in writing was entered into between the parties in terms of the sanction.
It could be that the tenant may have been in urgent need of the premises and could not afford to wait to take possession of the house till the legal and procedural formalities were gone through on account of some exigency such as immediate requirement of the house to celebrate a wedding or for a family member to undergo treatment or for the confinement of a daughter or daughter in law etc.
but in all such cases the parties must place all the materials before the Rent Controller while PG NO 251 seeking his sanction under Section 21.
The fact that the respondents had also appeared before the Rent Controller and agreed to take the property on lease for a limited period of two years without demur cannot obliterate or nullify the fraud committed on the statute.
This position has been succinctly pointed out in S.B. Noronah vs Prema Kumari, (supra) at page 287 in the following words: The fact that a landlord and a potential tenant together apply, setting out the formal ingredients of Section 21, does not relieve the Controller from being vigilant to inquire and satisfy himself about the requisites of the landlord 's non requirement "for a particular period" and the letting itself being "as a residence" Therefore, besides what the parties say, the Rent Controller has to apply his mind before granting sanction under Section 21 because the order passed by him has legal consequences and will govern the rights of the parties to the tenancy that is to follow in terms of the sanction.
This is the proper perspective from which the matter should be viewed.
Forgetting this position, Mr. Rohtagi based his arguments on the footing that what has been held against the appellant was her perpetration of a fraud on the respondents and the respondents being the sufferers thereby.
It was proceeding on those lines Mr. Rohtagi argued that the respondents were not illiterate but highly educated persons, that they were fully aware of the nature of the transaction and that they had willingly consented to the creation of limited tenancy rights in their favour and it was only after deriving full benefit under the tenancy rights given to them for two years, they were brazenly setting forth a plea of fraud and refusing to deliver possession of the leased premises.
The argument does not merit consideration because we have already pointed out that the relevant factor for consideration is not whether the respondent were victims of a fraud but whether the appellant by herself or in collusion with the respondents had fraudulently suppressed the truth from the Rent Controller and induced him to give his sanction under Section 21 so as to restrict the tenancy rights already conferred upon the respondents to a period of two years and to enable the appellant to initiate execution proceedings straightaway against the respondents at the expiry of the lease period and have them evicted through process of court from the leased premises.
What is now left is the further contention of the appellant 's counsel regarding the failure of the respondents to have speedily brought to the notice of the Rent Controller the fraud committed by the appellant and to have PG NO 252 sought for an annulment of the permission granted under Section 21.
The appellant 's counsel placed reliance on the observations of this Court in three cases viz.
J.R. Vohra vs Indian export House Pvt. Ltd., [1985] I SCC 712 at 723, Inder Mohan Lal 's,case (supra) para 28 page 17 and Joginder Kumar Butani vs R.P. Oberai, [ 1987] IV SCC 20 at 29 which are all to the effect that the delay on the part of the tenant to impugn the permission granted under Section 21 by the Rent Controller on the ground of fraud is a relevant factor to be taken into consideration by the Court while determining the question whether a tenant should not be summarily evicted under Section 21.
The observations in those cases cannot be of any assistance to the appellant for in none of those cases was it found that the sanction granted by the Rent Controller under Section 21 was vitiated by fraud and was therefore a nullity.
None of the decisions lay down that where a sanction granted by the Rent Controller under Section 21 is rendered void by reason of a fraud practised upon the statute, the delay on the part of the tenant in seeking annulment of the order of sanction will cure the order of its voidness.
Turning now to the last of the contentions of the appellant 's counsel viz. that by reason of the respondents having agreed to take limited tenancy rights under the order of the Rent Controller for a period of two years commencing from 1.3.1976 they must be deemed to have impliedly surrendered their earlier tenancy rights as envisaged under Clause (f) of Section 111 of the Transfer of Property Act, it has no merit in it because, the High Court has rightly pointed out after referring to Does d. Earl of Egrement vs Courtenay, and some decisions of the High Courts, that when a new lease does not pass are interest according to the contract the acceptance of it will not operate as a surrender of the former lease; that, in the case of a surrender implied by law from the acceptance of a new lease,the condition ought also to be understood as implied by law, making void the surrender in case the new lease should be made void.
" For all the aforesaid reasons,the appeals have to fail and will accordingly stand dismissed but there will to no order as to costs.
N.V.K. Appeals dismissed.

summary:
Execution applications were filed by the Appellant under section 21 of the Delhi Rent Control Act, 1958 for obtaining possession of the portions in the occupation of the respondents Tenants.
The appellant 's case was that she obtained s motion of the Additional Rent Controller on 26/27th February, 1976 and thereafter leased out specified portions in her property to the respondents under separate leases for a limited period of two years commencing from March 1, 1976.
The rear portion in the ground floor was leased out to one tenant and the first and second floor were leased out to another tenant.
Each tenant was to pay a sum of Rs.850 per month.
The execution applications were filed by the appellant against the two respondents as they failed to vacate the portion leased out to them at the end of the two year period.
The two respondents put up a common defence contending, that there was a single tenancy and not two tenancies, they were jointly inducted into possession of the entire leased portion in the month of December, 1975, under an oral lease and the tenancy was therefore not referable to the sanction given by the Additional Rent Controller on 26/27th February, 1976.
They placed reliance on the payment of Rs.1,700 on 10th December, 1975 as security deposit, and three months advance payment of rent of Rs.5,100 by means of cheque on 29th December, 1975.
The Rent Controller after inquiry and consideration of the accepted the case of the respondents, and held that an oral having been granted in favour of the respondents even in the month of December, 1975 their tenancy rights were not governed by the sanction given by the Additional Rent Controller under section 2l, and that sanction of the Rent Controller was vitiated by fraud in that it was by supressing the true facts from the notice of the Rent Controller.
The execution applications were accordingly dismissed.
PG NO 241 PG NO 242 In the appeals preferred to the Rent Control Tribunal, it was held that even if the respondents had been inducted into possession in December 1975 under an oral tenancy they must be deemed to have impliedly surrendered their earlier tenancy the sanction granted by the Rent Controller on 2h/27th February, 1976.
It was further held that the respondents ought to have brought to the notice of the Rent Controller without delay the fraud practised by the appellant and since they have failed to act promptly they were not entitled to seek nullification of the sanction of the Rent Controller.
The Tribunal allowed the appeals, held the execution applications were maintainable, and directed respondents to deliver possession to the appellant in a month 's time.
Second appeals were filed by respondents to the High Court, which were allowed.
It was held that as the respondents were already given tenancy rights they would not be governed by the sanction given by the Rent Controller on 26/27th February, 1976, that the sanction order itself was unenforceable as it was vitiated by fraud, and that no question of implied surrender of the earlier tenancy would arise, when the Rent Controller gave sanction for limited tenancy rights.
The High Court restored the order of the Rent Controller dismissing the execution appeals.
Dismissing the appeals by the landlord, the Court, HELD: 1.
What section 21 envisages is the creation of tenancy rights after getting the sanction of the Rent Controller.
Such being the case, the landlord should make known to the Rent Controller, if there is already a tenant in occupation of the premises, the factum of his possession and the terms of the tenancy and satisfy the Rent Controller that notwithstanding a tenant being in occupation of the premises under an earlier tenancy he should be granted sanction under section 21 to confer limited tenancy rights in favour of the existing tenant himself or in favour of new tenant.
[249D E] 2.
Section 21 was not intended to obtain 'post facto ' sanction of a tenancy that had already been created by supressing relevant information from the Rent Controller so as to enable the landlord to straight away recover possession of the leased property by filing an application under section 21 after the expiry of the period for which permission to lease had been granted by the Rent Controller.
[249E F] PG NO 243 3.
Besides what the parties say, the Rent Controller has to apply his mind before granting sanction under section 21 because the order passed by him has legal consequences and will govern the rights of the parties to the tenancy that is to follow in terms of the sanction.
[251C] S.B. Noronah vs Prem Kumari, [1980] I SCR 281; J.R. Vohra vs Indian Export House Pvt. Ltd., ; at 723; Inder Mohan Lal vs Ramesh Khanna, [1987] IV SCC 1 at page 9; and Joginder Kumar Butan vs R.P. Oberai, [1987] (IV) SCC page 20 at 29 referred to.
A statement made in contravention of facts, whether made by one or both the contracting parties, cannot alter the truth of the situation or cure the lacuna of withholding of relevant information.
[249H] In the instant case, it is inconceivable that irrespective of the differences in the size and nature of the two portions, the respondents would have consented to pay the same rate of rent to the appellant for the portions alleged to have been leased out to them.
The tenancies Granted to the two respondents are for the same period i.e. from March 1, 1976 to 28 February.
If all these factors are taken note of the only conclusion that can be reached is that only a single tenancy in favour of both the respondents should have been created for the entire leased portion and not two tenancies, one for the ground floor, and the other for the first and second floor.
The story of two tenancies put forward by the appellant is a make believe affair.
[248B D] In the instant case, when the appellant had already put the re spondent in possession of the property in December, 1975, she could not have bona fide made a statement before the Rent Controller that she would not be requiring the premises for her own occupation from 1st March 1976 onward for a period of two years.
The fact that respondent 910 appeared before the Rent Controller and gave statements in tune with the statement made by the appellant cannot improve the situation in any manner.
[249G H] 5.
The sanction obtained from the Rent Controller under Section 21 was vitiated by fraud and therefore a nullity.
It could therefore not be said that by reason of the respondents having agreed to take limited ten tenancy rights under the order of Rent Controller for a period of two years commencing from March 1, 1976 they must be deemed to have impliedly surrendered their earlier tenancy rights as envisaged under clause (f) of section 111 of the Transfer of Property Act.[252C E] PG NO 244 Doe d. Earl of Egrement vs Courtenay, , referred.


judgement:
ition (Crl.) No. 648 of 1987 etc.
(Under Article 32 of the Constitution of India) D.S. Tewatia, Mukul Mudgal, Rakesh Khanna, P.K. Jain, R.P. Singh, C.V.S. Rao, Prem Malhotra, S.K. Sabharwal, Mahabir Singh, Mrs. Urmila Kapoor and N. Sudhakaran for the appearing parties.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
These are a batch of writ petitions under Article 32 of the Constitution raising the common claim of entitlement to the benefit of Section 5 of the Punjab Borstal Act, 1926.
In each of these writ petitions, the petitioner has been convicted for the offence punishable under Section 302 of the Indian Penal Code and has been sentenced to life imprisonment.
The State of Haryana has challenged the claim of the petitioner in each of these writ petitions.
Learned counsel for the petitioners has relied upon the decision of this Court in Hava Singh vs State of Haryana & Anr., [1987] 4 SCC 207 in support of the claim advanced in the writ petitions.
A two Judge Bench of this Court in that case referred to Section 5 of the Act and E held: "On a conspectus of the aforesaid decision as well as on a consideration of the facts and circumstances the only conclusion follows that the petitioner who has already undergone actual imprisonment for seven years is entitled to be released from detention and from imprisonment.
Paragraph 516 B of the Punjab Jail Manual is not applicable in this case as the petitioner who was an adolescent convict below twenty one years of age was sent to the Borstal Institute at Hissar for detention in accordance with the provisions of Section 5 of the Punjab Borstal Act, 1926.
He being convicted by the Sessions Judge the maximum period of detention as prescribed by the Act is seven years.
We have already said hereinbefore that such an inmate of the Borstal Institute cannot be transferred to jail on the ground that he has attained the age of twenty one years as the said Act does not provide for the same.
The only provision for transfer to jail is in the case of incorrigible inmate or inmates convicted of major Borstal Institution offence.
" PG NO 143 Reliance was also placed by learned counsel for the petitioners on another two Judge Bench decision of this Court in the case of State of Andhra Pradesh vs Vallabhapuram Ravi; , That was a case under the Andhra Pradesh Borstal Schools Act, 1925 (5 of 1926) and the question for consideration was the same as here with reference to the provision of Section 8 of that Act.
The two Judge Bench held that the provisions of the Borstal Schools Act applied to the offence punishable under Section 302 of the Indian Penal Code.
Both these cases were referred to in Subhash Chand vs State of Haryana & Ors., ; by a three Judge Bench.
It referred to Hava Singh 's case (supra) at length.
The three Judge Bench in its judgment referred to the definition of 'offence ' under Section 2(4) of the Punjab Borstal Act which defined 'offence ' to mean "an offence punishable with transportation or rigorous imprisonment under the Indian Penal Code other than (a) an offence punishable with death;" The Court found that Section 302 of the Indian Penal Code provides: "whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine" and proceeded to say again "one of the punishments for the offence of murder to death and, therefore, the offence of murder would be covered within Section 2(4)(i)(a) of the Punjab Act and to such a conviction the Punjab Borstal Act would have no application.
Support for such a view is available from several decisions of different High Courts".
The Court ultimately held: "In Hava Singh 's case the definition was not placed for consideration before the Court and, therefore, the conclusion which has been reached is not correct.
The Punjab Borstal Act does not have application to an offence punishable under Section 302 of IPC".
This being a decision of a larger Bench we are bound by it.
PG NO 144 In the Webster '6 Third New International Dictionary the follow ing meaning has been given to the word 'punishable ' "Deserving of, or liable to, punishment: capable of being punished by law or right".
Aiyar 's the Law Lexicon (Reprint Edition 1987) gives the meaning of 'punishable ' thus: "The word 'punishable ' as used in statutes which declare that certain offences are punishable in a certain way, means liable to be punished in the way designated.
" In Bouvier 's Law Dictionary, the meaning of the word 'punishable ' has been given as 'liable to punishment '.
In 'Words and Phrases Permanent Edition ', the following meaning has been given: "The word 'punishable ' in a statute stating that a crime is punishable by a designated penalty or term of years in the state prison limits the penalty or term of years to the amount or term of years stated in the statute.
" The word 'punishable ' is ordinarily defined as deserving of or capable or liable to Punishment, punishable within statute providing that defendant may have ten peremptory challenges if offence charged is 'punishable ' with death or by life imprisonment; means deserving of or liable to punishment; capable of being punished by law or right, may be punished, or liable to be punished, and not must be punished. 'Corpus Juris Secundum gives the meaning as: 'Deserving of, or liable to, punishment; capable of being punished by law or right; said of persons of offences.
The meaning of the term is not 'must be punished ', but 'may be punished ', or 'liable to be punished '.
In the absence of a definition of 'punishable ' we have referred to these for gathering the exact meaning of the word.
In the sense given to the word, as above, there can be no doubt that the offence of murder is punishable with death even though the punishment awarded is not death but imprisonment for life.
PG NO 145 An earlier decision of this Court in Kunwar Bahadur & Ors.
vs State of Uttar Pradesh, [1980] Supp.
SCC 339, where a two Judge Bench dealt with the provisions of the United Provinces Borstal Act 7 of 1938 was also relied upon.
The judgment is a short one.
Detailed reference to the provisions of the United Provinces Act has not been made but Section 7 of the Act was referred to and it was observed: "Under this Section where a prisoner is sentenced for transportation i.e. life imprisonment and is below the age of 21 years he should be sent to Borstal School where he cannot be detained for more than five years, The law thus contemplates that for such an offender the sentence of five years will be equivalent even to a higher sentence of life prisonment".
Obviously in the United Provinces Act, there is no definition of 'offence ' as available in the Punjab Act.
Therefore, the decision in Kunwar Bahadur 's case (supra) is not really material for our purpose. 'Punishable ' carries a meaning 'liable to be punished ' as indicated by the three Judge Bench.
Since the offence under Section 302 is punishable with death, the provisions of the Punjab Borstal Act would not cover an offence under Section 302 of IPC and the benefit would not therefore, be available to an accused convicted for the offence under Section 302 IPC.
During the hearing of the matters learned counsel for the petitioners had maintained that the provisions of the Punjab Act should be suitably amended to bring about uniformity in the law on the subject.
This is a matter for the State and the Legislature and it is for them to consider whether the provision should be suitably amended keeping the modern concept of punishment and treatment of adolescents in view.
Each of the writ petitions is dismissed.
There would be no order for costs P.S.S. Petitions dismissed .

summary:
The petitioners who have been convicted for the offence punishable under section 302 of the Indian Penal Code and have been sentenced to life imprisonment, claim entitlement to the benefit of section 5 of the Act.
Dismissing the writ petitions, HELD: The Punjab Borstal Act, 1926 does not have application to an offence punishable under section 302 of the Indian Penal Code.
[143G] The offence of murder is punishable with death even though the punishment awarded is not death but imprisonment for life.
[144H] 'Punishable ' in section 2(4) of the Act carries a meaning 'liable to be punished '.
Since the offence under section 302 is punishable with death, the provisions of the Punjab Borstal Act would not cover an offence under section 302 of I.P.C. and the benefit would not, therefore, be available to an accused convicted for the offence under section 302 I.P.C. [145E] Subhash Chand vs State of Haryana & Ors., ; applied; Hava Singh vs State of Haryana & Anr., [1987] 4 SCC 207; State of Andhra Pradesh vs Vallabhapuram Ravi, ; and Kunwar Bahadur & Ors.
vs State of Uttar Pradesh, [1980] (Supp.) SCC 339, distinguished.
PG NO 141 PG NO 142