judgement:
ubt, the order of dete n tion contains fresh facts.
In addition, the detaining a u thority has taken into consideration the earlier grounds of detention which grounds had been nullified by the High Cou rt by issuing a prerogative writ of habeas corpus.
A copy of the earlier grounds of detention was also one of the doc u ments furnished to the detenu which confirms the fact th at the detaining authority has considered the earlier groun ds of detention alongwith other documents for drawing h is requisite subjective satisfaction for passing the detenti on order.
The order of detention is vitiated on that groun d, and is therefore liable to be set aside.
[58F. G; 59F G] & ORIGINAL JURISDICTION: Writ Petition (Criminal) No. 61 of 1989.
(Under Article 32 of the Constitution of India. ) V.V. Vaze, M.K. Pandit and P.H. Parekh for the Petitioner.
P.S. Poti, M.N. Shroff and Mrs. H. Wahi for the Respondent section The Judgment of the Court was delivered by 54 section RATNAVEL PANDIAN, J.
This petition under Article 32 of the Constitution of India is filed by the petitioner, t he detenu herein, challenging the legality and validity of t he order of detention dated 21.10.1988 passed by the detaini ng authority (the Commissioner of Police, Surat City) clampi ng upon the detenu the above said order of detention und er Sub section (2) of Section 3 of the Gujarat Prevention of Anti social Activities Act, 1985 (hereinafter referred to as the 'Act ') on the ground that he on consideration of t he materials placed before him was satisfied that it was nece s sary to make the said order with a view to preventing t he detenu from acting in any manner prejudicial to the maint e nance of public order in the area of Nanpura Machhiw ad falling under the jurisdiction of Athwa Lines Police St a tion, Surat City and directed the detenu to be detained in Sabarmati Central Prison, Ahmedabad under the conditio ns specified in the Gujarat Prevention of Anti Social Activ i ties Order, 1985.
In pursuance of the impugned order t he detenu has been detained in the aforesaid prison.
The second respondent, the State of Gujarat, approv ed the impugned order on 26.10.1988 and confirmed the same on 13.12 '.
The detenu submitted his representation dat ed 15.12.
1988 which was received by the 1st respondent on 19.12.
1988 on which date itself the same was rejected.
T he copy of the representation sent to the second respondent w as rejected on 21.12.1988.
It is stated in the grounds of detention that the dete nu was illegally keeping in possession the country liquor a nd openly selling the same at the comer of Nanpura, Machhiwa d, Masjid Wali Gali, Bhandariwad and conducting a den (Add a) and that he had been arrested in 1988 for offences under t he Bombay Prohibition Act in respect of which number of cas es were registered which cases are still pending trial as disclosed in Annexure I.
It is further stated that t he detenu had engaged 10 persons whose names are given in paragraph 2 of the grounds of detention, to accelerate h is bootlegging activities and those hired persons who we re conducting den (Adda)under the instructions and guidance of the detenu had been arrested in 1988 in 19 different cas es under the Bombay Prohibition Act from the detenu 's ad da during police raids of which 8 cases are pending trial a nd the remaining eleven are under investigation, the details of which are given in Annexure 11 attached to the grounds of detention.
On the above materials and the statements of witnesses placed before him, the detaining authority h ad satisfied himself that the abovementioned bootlegging acti v ities of the detenu in a large scale in an organised mann er were seriously detrimental to the public health and we re likely 55 to endanger public health and consequently passed th is impuged order of detention.
Hence this writ petition.
Mr. V.V. Vaze, learned counsel appearing on behalf of the petitioner, detenu raised several contentions assaili ng the legality and validity of the order of detention one of which being that the detaining authority for drawing h is requisite subjective satisfaction to clamp this order of detention upon the petitioner/detenu had taken into consi d eration the previous grounds of detention which was t he subject matter of Special Criminal Application No. 46 of 1987 before the High Court of Gujarat.
Since we are inclin ed to dispose of this Writ Petition on this ground alone we a re not traversing on other grounds.
Admitedly, the Commission er of Police, Surat City passed an Order of detention.
Und er Section 3(2) of the Act on 2.1.
1987 in No. PCB/ PASA/I/ 87 on the ground that between 1984 to 1986 there were 19 cas es filed against the detenu under the Bombay Prohibition Act of which 16 were pending in Court and three others under inve s tigation when this previous order was passed.
The petition er filed Special Criminal Application No. 46 of 1987 before t he High Court of Gujarat at Ahmedabad challenging the validi ty of the said order.
The High Court by its judgment dated 3.
8. 1987 quashed the earlier impugned order of detention a nd directed the release of the detenu forthwith.
A copy of t he High court order is annexed to the Writ Petition as Annexu re 'D '.
The detaining authority in this case had made a refe r ence about the previous order in the impugned grounds of detention which reads thus: "You are associated with bootlegging activity for long tim e, therefore, under order number dated 2.1.87 you were order ed to be detained under PASA and were kept in Baroda Centr al Jail.
But you filed a petition against this order of dete n tion in the High Court by Special Criminal Misc.
Applicati on No. 46/1987, After this petition was heard on 3.8.87, t he Hon 'ble High Court quashed the detention order and releas ed you from detention.
The proceedings taken against you ha ve had no effect on you and after you were released from t he detention, you have continued your activity.
" The detenu, presumably based on the above statement, h as stated in his writ petition that the present order of dete n tion is clamped upon him since the earlier order passed on 2.1. 1987 had been quashed and set aside.
The detaini ng authority in attempting to reply 56 to the allegations made in paragraph No. 6 of the Wr it Petition, wherein it is averred "The petitioner states th at in some of the cases, the petitioner is acquitted and in none of the cases the petitioner is convicted till today ", has made the following statement in paragraph 9 of h is counter: "It is submitted that the present detaining authority to ok into consideration the previous grounds of detention also to establish that the petitioner was engaged in bootleggi ng activities since long.
" Now on this above statement it has been streneous ly urged that since the detaining authority for drawing h is subjective satisfaction had taken into consideration all t he previous grounds of detention, namely, the earlier groun ds of detention passed on 2.1. 1987 which had been subsequent ly quashed by the High Court the present detention order is liable to be set aside.
According to learned counsel for t he petitioner, once the previous grounds of detention had be en quashed on its merit, then the detaining authority has no justification to take into consideration the earlier groun ds of detention for passing this present detention order whi ch should have been based only on the fresh grounds that we re available subsequent to the quashing of the previous dete n tion order.
In support of this statement several decisio ns were relied on about which we make reference presentl y.
Firstly, the attention of the Court was drawn to Ghul am Nambi Zaki vs State of Jammu and Kashmir, wherein the State contended that the existence of fre sh material is not a condition precedent for passing the seco nd order and that in any event, the second order can be ma de when the first order is withdrawn or revoked for technic al defect.
Hidayatullah, C.J. speaking for the bench repell ed that contention holding thus: "The matter is not res integra.
In a number of decisions of this Court to which reference will be made presently, th is point has been considered and it has been held that once an order of revocation is made, another order detaining t he same person can only be passed if some additional or fre sh material is in possession of the State Government on whi ch action can be based.
" Then referring to the decision of the Constitution Ben ch in Hadibandhu Das vs District Magistrate, Cuttack and Anot h er; , , the learned Chief Justice observed: 57 "In other words, the revocation or expiry of the previo us order cannot lead ipso facto to a revival of the detenti on by the passing of a fresh order, because a person who is entitled to his liberty can only be put in a second jeopar dy when there are additional or fresh facts against him." Ultimately, he concluded: "As pointed out in the All India Reporter case (Hadiband hu Das case) the inference is very compulsive that fresh fac ts must be found for new orders otherwise once the old dete n tion comes to an end either by the expiry of the period of detention or by the cancellation of the order of detentio n, a fresh detention cannot be ordered." In Har Jas Dev Singh vs State of Punjab & Ors., ; , this Court while examining a similar question wi th regard to validity of second detention order passed und er Section 14(2) of the Maintenance of Internal Security A ct (Act 26 of 1971) on identical grounds of the earlier ord er expressed its view: "In these circumstances after the date on which the ord er cease to be in force, unless fresh facts have arisen on t he basis of which the Central Government or State Government or an Officer, as the case may be, was satisfied that such an order should be made, the subsequent detention on the ve ry same grounds would be invalid." The learned counsel also cited for the same principle of law, the decision in Chotka Hembram vs State of West Beng al & Ors.; , Those decisions mentioned albeit are cases wherein t he first detention order ceased to be either by revocation or by expiry of the period of detention.
What would be t he legal implications and ultimate effect of quashing an ord er of detention by the High Court in exercise of its jurisdi c tion under Article 226 of the Constitution of India th is Court in Ibrahim Bachu Bafan vs State of Gujarat & Ors ., , made the following rule: " . .
When the High Court exercises jurisdiction und er Article 226 of the Constitution it does not make an order of revocation.
By issuing a high prerogative writ like habeas 58 corpus or certiorari it quashes the order impugned before it and by declaring the order to be void and striking down t he same it nullifies the order.
The ultimate effect of cance l lation of an order by revocation and quashing of the same in exercise of the high prerogative jurisdiction vested in t he High Court may be the same but the manner in which t he situation is obtained is patently different and while o ne process is covered by Section 11(1) of the Act, the other is not known to the statute and is exercised by an authori ty beyond the purview of sub section (1) of Section 11 of t he Act.
It is, therefore, our clear opinion that in a situati on where the order of detention has been quashed by the Hi gh Court, sub section (2) of Section 11 is not applicable a nd the detaining authority is not entitled to make anoth er order under Section 3 of the Act on the same grounds.
" It emerges from the above authoritative judicial pr o nouncements that even if the order of detention comes to an end either by revocation or by expiry of the period of detention there must be fresh facts of passing a subseque nt order.
A fortiori when a detention order is quashed by t he Court issuing a high prerorgative writ like habeas corpus or certiorari the grounds of the said order should not be tak en into consideration either as a whole or in part even alon g with the fresh grounds of detention for drawing the requ i site subjective satisfaction to pass a fresh order becau se once the Court strikes down an earlier order by issuing ru le it nullifies the entire order.
In the present case, no doubt, the order of detenti on contains fresh facts.
In addition to that the detaini ng authority has referred to the earlier detention order a nd the judgment of the High Court quashing it, presumably f or the purpose of showing that the detenu in spite of earli er detention order was continuing his bootlegging activitie section But what the detaining authority says clearly in paragraph 9 of his affidavit in reply is that he took into considerati on the previous grounds of detention also for his conclusi on that the detenu 'was engaged in bootlegging activities sin ce long '.
In other words the detaining authority has taken in to consideration the earlier grounds of detention which groun ds had been nullified by the High Court in Special Crimin al Application No. 46 of 1987 by issuing a prerogative writ of habeas corpus.
Under Section 15 of the Act, the expiry or revocation of an earlier detention order is not a bar for making a subs e quent detention 59 order under Section 3 against the same person.
The provi so annexed to that Section states that in a case where no fre sh facts have arisen after expiry or revocation of an earli er order made against such person the maximum period for whi ch such person may be detained in pursuance of the subseque nt detention order shall in no case extend beyond the period of 12 months from the date of detention under the earli er order.
Chinnappa Reddy, J. in Abdul Latif Abdul Wahab Shei kh vs B.K. Jha and Another, ; = 03 speaking for the bench of this Court while dealing wi th Section 15 of the Act observed: "It, therefore, becomes imperative to read down Section 15 of the Gujarat Prevention of Anti Social Activities Ac t, 1985 which provides for the making of successive orders of detention so as to bring it in conformity with Article 22( 4) of the Constitution.
If there is to be a collision betwe en Article 22(4) of the Constitution and Section 15 of the Ac t, Section 15 has to yield.
But by reading down the provisio n, the collision may be avoided and Section 15 may be su s tained." Mr. Poti has sought to explain the statement of t he detaining authority made in his counter saying that t he earlier proceeding was considered only to a limited purpo se of taking note of the detenu 's continued involvement of bootlegging activities; but the entire grounds of earli er detention as they were, were not considered.
We are unab le to accept this explanation because the detaining authorit y, in the counter, in clear terms had expressed that he consi d ered the earlier grounds of detention also.
Incidently, it was brought to our notice that a copy of the earlier groun ds of detention was also one of the documents furnished to t he detenu in the present case which confirms the fact that t he detaining authority has considered the earlier grounds of detention along with other documents for drawing his requ i site subjective satisfaction for passing this impugn ed order.
In other words, the earlier grounds of detenti on dated 2.1. 1987, quashed by the High Court was one of t he material documents considered by the detaining authority in drawing his subjective satisfaction.
Therefore, we hold th at this order of detention is vitiated on the ground that t he detaining authority has taken into consideration the groun ds of earlier detention order alongwith other materials f or passing this impugned order.
Hence, the order is liable to be set aside.
Accordingly, we quash the detention order on this ground and direct that the detenu be set at liber ty forthwith if his detention is not required for any oth er case.
R.S.S. Petition allowed.

summary:
With a view to preventing the petitioner detenu fr om acting in any manner prejudicial to the maintenance of public order, an order of detention was passed against h im by the Comissioner of Police, Surat City, under section 3( 2) of the Gujarat Prevention of Anti social Activities Ac t, 1985.
The grounds of detention referred to the detenu 's criminal activities connected with bootlegging on a lar ge scale and in an organised manner, and the several cas es registered and pending against him on that account.
T he detenu 's representations were dismissed by the 1st respon d ent and the State Government.
It was contended on behalf of the petitioner that t he Detaining Authority for drawing his requisite subjecti ve satisfaction had taken into consideration the previo us grounds of detention which were the subject matter of a Special Criminal Application before the Gujarat High Cour t, and the High Court had quashed the order of detention i m pugned in that case.
On the other hand, it was contended on behalf of the respondents that the earlier proceeding w as considered only to a limited purpose of taking note of t he detenu 's continued involvement in bootlegging activities.
Allowing the writ petition, and quashing the detention ord er it was HELD: (1) Even if the order of detention comes to an e nd either by revocation or by expiry of the period of detenti on there must be fresh facts for passing a subsequent orde r. [58D] Ghulam Nambi Zaki vs State of Jammu & Kashmir, ; Hadibandhu Das vs District Magistrate, Cuttack Anr.
; , ; HarJas Dev Singh vs State of Punja b; , and 53 Chotka Hembram vs State of West Bengal, 1, referred to.
(2) A fortiori when a detention order is quashed by t he Court issuing a high prerogative writ like habeas corpus or certiorari, the grounds of the said order should not be taken into consideration either as a whole or in part ev en alongwith the fresh grounds of detention for drawing t he requisite subjective satisfaction to pass a fresh ord er because once the Court strikes down an earlier order by issuing a rule it nullifies the entire order.
[58D E] Ibrahim Bachu Bafan vs State of Gujarat, , followed.
(3) It is imperative therefore to read down section 15 of the Act which provides for the making of successi ve orders of detention so as to bring it in conformity wi th Article 22(4) of the Constitution.
[59C] Abdul Latif Abdul Wahab Sheikh vs B.K. Jha & Anr .; , followed.


judgement:
etition (Criminal) No. 5 37 of 1988.
(Under Article 32 of the Constitution of India.) Dr. Y.S. Chitale, M.K. Pandit, P.H. Parekh, J.H. Pare kh and M.N. Sompal for the Petitioner.
45 P.S. Poti, Mrs. H. Wahi and M.N. Shroff for the Respondent section The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
This is a petition under Artic le 32 of the Constitution of India challenging the legality a nd validity of the order of detention dated 17.9.1988 passed by the detaining authority (the Commissioner of Police, Ahmed a bad City) clamping upon the petitioner (the detenu herei n) the impugned order of detention under Sub section (2) of Section 3 of the Gujarat Prevention of Anti Social Activ i ties Act, 1985 on the ground that he on the materials plac ed before him was satisfied that it was necessary to make th is order of detention with a view to preventing the detenu fr om acting in any manner prejudicial to the maintenance of public order in the area of Ahmedabad City and directed t he detenu to be detained in Sabarmati Central Prison.
In purs u ance of the said order, the detenu has been detained in t he aforesaid prison.
The Government approved the order of detention on 21.9.1988.
The detenu submitted his representation dat ed 22.9.1988 to the Ist respondent who by his order dat ed 30.9.1988 rejected the same.
Hence this Writ Petition.
Before adverting to the arguments advanced by Dr. Ch i tale, on behalf of the detenu; we would like to produce t he relevant portion of the grounds of detention which rea ds thus: " .
As such you are a dangerous person as defined in section 2(c) of the said Act, and known as dangerous perso n.
As you with the aid of your Associates create dangero us atmosphere in the said vicinity you disturb public peac e, maintenance and as such following offences were register ed against you with Police Records, and in which you we re arrested.
Plice Offence Section Decision No. Station Regd.
No. 1.
Sabarmati 140/81 324, 114 Compro IPC mised 16.2.82 2.
Sherkotda 411/82 332,323, P.T. 114 IPC 46 3.
Sherkotda 412/82 PIC 147, 148 P.T. 149,307 BP Act 135(1) 4.
Sherkotda 452/85 IPC 302, Not 109,3 proved 5.
Sabarmati 346/87 IPC 302, In the 109,34 Court While considering complaints, in the above cases, Identif i cation (Chehra Nissan) Register, and charge sheets co n tents carefully, it is found that you, with the aid of yo ur associates, in the said area, give threats to innoce nt people, and cause injuries to them by showing dangero us weapons that like Acid, Knife, sharp weapons.
As such y ou commit offences punishable for causing injuries to hum an body and which are punishable in Indian Pen al Code . . " Dr. Chitale, the learned counsel for the petition er took us through the grounds of detention and the oth er relevant records, particularly the copies of the statemen ts of witnesses on the basis of which the detaining authori ty has claimed to have drawn his subjective satisfaction f or passing this impugned order of detention and raised vario us contentions inter alia contending; (1) The material a nd vital fact, namely, the acquittal of the detenu in the cas es registered in Crime Nos.
411 and 412 of 1982 of Sherkot da Police Station as shown at Serial Nos. 2 and 3 in the tab le appended to grounds of detention which fact would ha ve influenced the minds of the detaining authority one way or the other on the question whether or not to make the dete n tion order, has not been placed before the detaining autho r ity and this non placing and the consequent non consider a tion of the said material likely to influence the minds of the detaining authority vitiates the subjective satisfacti on and invalidates the detention order; (2) Leave apart, t he non disclosure of the names of the witnesses on whose stat e ments the detaining authority placed reliance to draw h is subjective satisfaction, claiming privilege under Secti on 9(2) of the Act, the grounds of detention otherwise a re vague or deficient and lacking details with regards to t he names of the 'associates ', for the disclosure of which no privilege could be claimed and hence it was not possible f or the detenu in the absence of the names of the so call ed 'associates ' to make an effective representation against t he order of detention, the deprivation of which amounts to an infringement of the 47 constitutional safeguard provided under Article 22(5) of t he Constitution of India; (3) Though the authority has me n tioned in more than one place the words 'your associate s ' which fact evidently should have influenced the mind of t he detaining authority in making this impugned order, the nam es of the associates are nowhere disclosed which fact wou ld show either the authority did not know as to who the assoc i ates were or knowing the names of the associates, he h as refrained from furnishing it to the detenu thereby disabli ng the detenu to make his effective representation; and (4) T he materials placed before the detaining authority were hard ly sufficient to draw any conclusion that the alleged activ i ties of the detenu were detrimental to the ' ' maintenan ce of public order. ' ' A plethora of decisions were cited by Dr. Chitale.
T he learned counsel for the respondent, Mr. Poti vehement ly urged that the contentions urged by Dr. Chitale do not mer it consideration and the detaining authority in the prese nt case is justified in passing this order of detention.
M r. Poti also cited number of decisions in support of his su b missions.
We shall now examine these contentions in seriatim.
In the grounds of detention five cases register ed against the detenu in respect of which he had been arrest ed are taken into consideration by the detaining authority to draw his subjective satisfaction that the detenu was di s turbing the maintenance of public order.
Out of the fi ve cases, two cases mentioned under Serial Nos. 2 and 3 a re shown as 'P.T. ', that is pending trial.
In other words on 17.9.88 i.e. the date of passing the order of detention, t he detaining authority was of the opinion that the trials of both the cases were not over, though actually the detenu h ad been acquitted even on 26.8.1988 in the case relating to Crime No. 411 of 1982 and on 5.6.88 in the case relating to Crime No. 412/82.
Though the acquittal of both the cases a re admitted, the date of acquittal of Crime No. 411/82 is giv en as 6.7.88 in the counter.
In the Writ Petition two grou nd Nos. 10 and 11 are with reference to these cases.
They re ad as follows: "10.
The petitioner states that in the grounds of detenti on the detaining authority has mentioned erroneously that Ca se No. 411 of 1982 is pending.
In fact, the said Case w as decided by the Court on 26.8.1988 and the petitioner w as acquitted by the judgment dated 26.9.1988 delivered by t he Metropolitan Magistrate, Court No. 7, Ahmedabad.
When 48 grounds of detention were passed and when the detenti on order was passed in September, 1988, the detaining authori ty has taken a non existing fact into account that the sa id case was pending trial.
The detention is liable to be quashed on this ground also.
Likewise, the grounds of detention mention ed that Case No. 412 of 1982 is pending which is erroneous.
T he said case was decided on 5.6.1988 and the petitioner w as acquitted.
The detention is liable to be quashed for taki ng this non existing ground.
" These two grounds are answered by the detaining author i ty in paragraphs 12 and 13 of his affidavit in reply swo rn in December 1988 which read thus: "12.
With reference to the averments made in para 10 of t he petition, I say that the same are not true ' and deni ed hereby.
I say that the petitioner was acquitted in Crime N o. 411 of 1982 by the Metropolitan Magistrate, Court No. 7, Ahmedabad by an order dated 6.7.1988.
However, it is submi t ted that each activity of the petitioner is a separa te ground of detention against the petitioner and, therefor e, even if the petitioner is acquitted in the said Crimin al Case, the detention order is not vitiated on that count.
With reference to the averments made in para 11 of t he petitioner, I say that the same are not true and deni ed hereby.
I say that it is true that in the Criminal Case N o. 412/82 the petitioner was acquitted by the Sessions Cou rt No. 20, Ahmedabad on 5.6.1984.
However, as submitted here i nabove, each activity of the petitioner is a separate grou nd for detention of the petitioner, and, therefore, the fa ct that the petitioner was acquitted in Criminal Case No. 4 11 (Sec 412) of 1982 has no bearing on the detention order a nd the detention order cannot be said to be vitiated on th at count." Though as per Section 6 of the Act the grounds of dete n tion are severable and the order of detention shall not be deemed to be invalid or inoperative if one ground or some of the grounds are invalid, the question that arises for co n sideration is whether the detaining authority was real ly aware of the acquittal of the detenu in those two cases 49 mentioned under Serial Nos. 2 and 3 on the date of passi ng the impugned order.
It is surprising that the detaini ng authority who has specifically mentioned in the grounds of detention that the petitioner 's cases 2 and 3 were pendi ng trial on the date of passing the order of detention has co me forward with a sworn statement in reply, filed nearly thr ee months after signing the grounds of detention, that he kn ew that the accused had been acquitted in both the cases.
T he averments made in paragraphs 12 and 13 in the affidavit in reply are not clear at what point of time the detaini ng authority came to know of the acquittal of the detenu in both the cases.
At any rate, it is not his specific ca se that the fact of acquittal was placed before him for consi d eration at the time of passing the impugned order.
But wh at the authority repeatedly states is that "each activity of the petitioner is a separate ground of detention" and ad ds further that "the fact that the petitioner was acquitted in Criminal Case No. 411/82 and 412/82 is of no consequence ".
We are unable to comprehend the explanation given by t he detaining authority.
It has been admited by Mr. Poti th at the sponsoring authority initiated the proceedings a nd placed all the materials before the detaining authority on 14.9.1988 by which date the petitioner had already be en acquitted in the above said two cases.
Thus it is clear th at either the sponsoring authority was not aware of the acqui t tals of those two cases or even having been aware of t he acquittals had not placed that material before the detaini ng authority.
So at the time of signing the order of detentio n, the authority should have been ignorant of the acquittal section Evidently to get over the plea of the detenu in the wr it petition in this regard for the first time in the counte r, the detaining authority is giving a varying statement as if he knew about the acquittal of the detenu in both the case section As ruled by this Court in Shiv Ratan Makim vs Union of Ind ia & Ors., [1985] Supp.
(3) SCR 843 at page 848 "even if a criminal prosecution fails and an order of detention is th en made, it would not invalidate the order of detention" b e cause as pointed out by this Court in Subharta vs State of West Bengal, ; "the purpose of preventi ve detention being different from conviction and punishment a nd subjective satisfaction being necessary in the former whi le proof beyond reasonable doubt being necessary in t he latter", the order of detention would not be bad mere ly because the criminal prosecution has failed.
In the prese nt case, we would make stress, not on the question of acquitt al but on the question of non placing of the material and vit al fact of acquittal which if had been placed, would ha ve influenced the minds of the detaining authority one way or the other.
Similar questions arose in Sk.
Nizamuddin vs State of West Bengal; , in which the dete n tion order was passed under the provisions of Maintenance of 50 Internal Security Act.
In that case the ground of detenti on was rounded on a solitary incident of theft of alumini um wire alleged to have been committed by the detenu therei n.
In respect of that incident a criminal case was filed whi ch was ultimately dropped.
It appeared on 'record that t he history sheet of the detenu which was before the detainin g. authority did not make any reference to the criminal ca se launched against the petitioner, much less to the fact th at the prosecution had been dropped or the date when the pet i tioner was discharged from the case.
In connection with th is aspect this Court observed as follows: "We should have thought that the fact that a criminal ca se is pending against the person who is sought to be proceed ed against by way of preventive detention is a very materi al circumstance which ought to be placed before the Distri ct Magistrate.
That circumstance might quite possible have an impact on his decision whether or not to make an order of detention.
It is not altogether unlikely that the Distri ct Magistrate may in a given case take the view that since a criminal case is pending against the person sought to be detained, no order of detention should be made for t he present, but the criminal case should be allowed to run i ts full course and only if it fails to result in convictio n, then preventive detention should be resorted to.
It would be most unfair to the person sought to be detained not to disclose the pendency of a criminal case against him to t he District Magistrate.
" It is true that the detention order in that case was s et aside on other grounds but the observation extracted abo ve is quite significant.
The above observation was subsequent ly approved by this Court in Suresh Mahato vs The Distri ct Magistrate, Burdwan and Others, AIR 1975 SC 720 and in As ha Devi vs Additional Chief Secretary to the Government of Gujarat & Ant., ; In the latter case (i. e. Asha Devi), it has been pointed out: " . . if material or vital facts which would infl u ence the minds of the detaining authority one way of t he other on the question whether or not to make the detenti on order, are not placed before or are not considered by t he detaining authority it would vitiate its subjective sati s faction rendering the detention order illegal.
" 51 In Sita Ram Somani vs State of Rajasthan and Other s, certain documents which were claimed to ha ve been placed before the Screening Committee in the fir st instance were not placed before the detaining authority a nd consequently there was no occasion for the detaining autho r ity to apply its mind to the relevant material.
In t he circumstances of that case, a principal point was rais ed before this Court that there was no application of mind by the detaining authority to those vital materials which we re with held.
This Court, while answering that contenti on observed thus: "No one can dispute the right of the detaining authority to make an order of detention if on a consideration of t he relevant material, the detaining authority came to t he conclusion that it was necessary to detain t he appellant. 'But the question was whether the detaining a u thority applied its mind to relevant considerations.
If it did not, the appellant would be entitled to be released.
" From the above decisions it emerges that the requisi te subjective satisfaction.
the formation of which is a cond i tion precedent to passing of a detention order will g et vitiated if material or vital facts which would have beari ng on the issue and weighed the satisfaction of the detaini ng authority one way or the other and influenced his mind a re either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority befo re issuing the detention order.
It is clear to our mind that in the case on hand, at the time when the detaining authori ty passed the detention order this vital fact, namely, t he acquittals of the detenu in case Nos.
mentioned at seri al Nos. 2 and 3 have not been brought to his notice and on t he other hand they were withheld and the detaining authori ty was given to understand that the trial of those cases we re pending.
The explanation given by the learned counsel f or the respondents, as we have already pointed out, cannot be accepted for a moment.
The result is that the nonplacing of the material fact namely the acquittal of detenu in t he above said two cases resulting in non application of min ds of the detaining authority to the said fact has vitiated t he requisite subjective satisfaction, rendering the impugn ed detention order invalid.
Since we have now come to the conclusion that the ord er of detention is to be set aside on the first ground itsel f, we are not inclined to traverse on other grounds.
In t he premises, the impugned order is set aside and the Wr it Petition is allowed.
We direct that the detenu be set at liberty forthwith.
P.S.S. Petition allowed.

dataset_name: IN-Abs

summary:
The petitioner was detained under an order dated 17 th September, 1988 made by the detaining authority under sub section (2) of section 3 of the Gujarat Prevention of Anti Social Activ i ties Act, 1985 with a view to prevent him from acting in a ny manner prejudicial to the maintenance of public order.
T he grounds of detention mentioned five offences register ed against him with police records, out of which the first o ne under section 324 IPC was stated to have been compromised, t he second under section 332 IPC and the third under sections 148 and 3 07 IPC respectively were stated to be pending trial, the four th under section 302 IPC was stated not proved, while the fif th under section 302 IPC was stated to be in the court.
The Government approved the said order on 21st Septe m ber, 1988.
The detenu submitted his representation dat ed 22nd September, 1988 to the first respondent who by h is order dated 30th September, 1988 rejected the same.
He thereupon, filed this petition under Article 32 of t he Constitution.
It was contended for the petitioner that he has be en acquitted even on 26th August, 1988 in the case shown at serial No. 2 in the Table appended to the grounds of dete n tion, and on 6th June, 1988 in the case shown at Serial N o. 3, that this material and vital fact of his acquittal in t he said cases had not been placed before the detaining author i ty and this non placing and the consequent non considerati on of the said material likely to influence the mind of t he detaining authority vitiates the subjective satisfaction a nd invalidates the detention order, that the names of his s o called associates were nowhere disclosed which fact wou ld show either the authority did not know as to who the se associates were or knowing their names has refrained fr om furnishing it to the detenu thereby disabling him to ma ke his effective representation, and 44 that the grounds of detention otherwise were vague or def i cient.
For the respondent it was contended that each activ i ty of the petitioner was a separate ground of detention a nd that the fact that the petitioner was acquitted in the sa id cases was of no consequence.
Allowing the writ petition, HELD: The requisite subjective satisfaction, the form a tion of which is a condition precedent to passing of a detention order, will get vitiated if material or vit al facts which would have bearing on the issue and weighed t he satisfaction of the detaining authority one way or the oth er and influenced his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention orde r. [51D E] In the instant case, at the time when the detaini ng authority passed the detention order the vital fact of acquittal of the detenu in cases mentioned at serial Nos. 2 and 3 had not been brought to his notice and on the oth er hand it was withheld and the detaining authority was giv en to understand that the trial of those cases was pendin g.
This non placing of the material fact resulting in no n application of the mind of the detaining authority to t he said fact has vitiated the requisite subjective satisfa c tion, rendering the impugned detention order invalid.
T he same is, therefore, set aside.
The detenu be set at liber ty forthwith.
[51E, F, G, H] S.K. Nizamuddin vs State of West Bengal, ; ; Suresh Mahato vs The District Magistrate, Burdwan Ors., AIR 1975 SC 728; Asha Devi vs Additional Secretary to the Government of Gujarat & Anr., ; and Si ta Ram Somani vs State of Rajasthan & Ors., referred to.
Shiv Rattan Makim vs Union of India & Ors., [1985] Sup p. (3) SCR 843 and Subharta vs State of West Bengal , distinguished.


judgement:
er to cancel the nOti ce convening the meeting and to direct the Secretary to issue a notice to that effect, the said power could be exercis ed only bona fide and for a purpose or purposes within t he scope of the said Act.
If the power was exercised mala fi de or for a collateral purpose, the exercise of the power wou ld certainly be bad.
[125E F] & CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1994 of 1989.
From the Judgment and Order dated 28.10.88 of the Guj a rat High Court in L.P.A. 236 of 1988.
G. Ramaswamy, Additional Solicitor General, P.H. Pare kh and M .K. Pandit for the Appellants.
Respondent Nos. 1 and 3 in person, Mukul Mudgal and G. Venkateshwara Rao for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
Leave granted.
As a substantial point of law is involved in this cas e, we have granted special leave and the Appeal is being tak en up to hearing with the consent of the parties.
The Appeal is directed against the judgment of a Division Bench of t he Gujarat High Court, allowing the writ petition filed befor e The facts of the case relevant for the disposal of th is Appeal, briefly stated, are as follows.
Appellants Nos.
1 and 2 are persons elected in 1987 as Mayor and Deputy Mayor respectively of the Municipal Corp o ration of Bhavnagar, Respondent No. 5 herein (referred to in the judgment as "the Corporation").
Appellant No. 3 is t he Secretary of the said Corporation.
Respondents Nos. 1 and 2 are persons claiming to have 114 been elected as Mayor and Deputy Mayor of the Corporation at a meeting held on June 1, 1988, the validity of which is disputed before The Corporation came into existence in 1982.
The ele c tions to the Corporation were duly held in 1985 and 51 members were elected.
On June 30, 1987, appellants Nos. 1 and 2 were duly elected as Mayor and Deputy Mayor respe c tively of the Corporation for a period of one year.
On M ay 21, 1988, a notice was issued by appellants Nos. 1 and 2 to convene a meeting of the members of the Corporation at 5. 00 p.m. on June 1, 1988 to elect a Mayor and Deputy Mayor of the Corporation for the second term and for certain oth er business mentioned in the Agenda circulated.
On May 3 1, 1988, appellant No. 1 gave instructions by a letter to t he Deputy Secretary of the Corporation to postpone the meeti ng of the Corporation as appellant No. 1 had to go to Gandhin a gar for a certain urgent work of the Corporation.
It see ms clear from the record that the said instructions were giv en by appellant No. 1 after consulting 32 members of the Corp o ration, presumably those belonging to his own party.
Purs u ant to the said letter and the instructions contained ther e in appellant No. 3 issued a letter addressed to the membe rs of the Corporation that the meeting scheduled for June 1, 1988 had been postponed.
The said letter was circulated to all the members of the Corporation.
In spite of the sa id letter postponing the meeting, 19 members of the Corpor a tion, presumably belonging to the minority party or parti es assembled at the place indicated in the notice dated May 2 1, 1988 and elected respondents Nos. 1 and 2 as Mayor a nd Deputy Mayor of the Corporation respectively.
At the sa id meeting neither the Commissioner of the Corporation nor t he Secretary or Deputy Secretary was present and the minutes of the said meeting were not recorded by the Secretary of t he Corporation.
As appellants nos.
1 and 2 did not hand ov er the charge to respondents Nos. 1 and 2, the latter filed a writ petition, being Writ Petition No. 2772 of 1988 in t he Gujarat High Court for being declared as legally elect ed Mayor and Deputy Mayor of the Corporation respectively a nd for an order that charge of the said post should be hand ed over to them.
On June 9, 1988, the said writ petition w as dismissed by a learned Single Judge of the Gujarat Hi gh Court.
The learned Single Judge, who dismissed the said wr it petition, took the view that, as the Mayor in exercise of the powers conferred upon him under sub clause (c) of Clau se 1 of Chapter II of the Schedule (under Section 453) in t he Bombay Provincial Municipal Corporations Act, 1949 (herei n after referred to as "the said Act") can issue a notice f or convening the meeting, he is also entitled to the power to cancel or rescind the notice 115 under the provisions of Section 21 of the Bombay Gener al Clauses Act, 1904.
It was held that appellant No. 1, as t he Mayor, was exercising a statutory power vested in him a nd could, therefore, cancel the notice and postpone the meeti ng convened by him before the meeting was held.
It was point ed out by him that in the history of the Corporation meetin gs had been postponed by the Mayor in the same manner.
T he learned Single Judge further took the view that even assu m ing that appellant No. 1 had no right to postpone the mee t ing, even then the election of respondents Nos. 1 and 2 as Mayor and Deputy Mayor at the meeting held on June 1, 19 88 could not be held legal and valid as the majority of t he members of the Corporation had been deprived of the opport u nity of exercising their right to elect a Mayor and Depu ty Mayor by reason of the notice for postponing the meeting.
A Letters Patent Appeal was preferred by respondents Nos. 1 and 2 against the decision of the learned Single Judge to a Division Bench of the Gujarat High Court.
The Division Ben ch of the said High Court took the view that it was bound by the view taken by a Division Bench of this Court in Chandr a kant Khaire vs Dr. Shantaram Kale and others; , ; where it was observed as follows: "A properly convened meeting cannot be postponed.
The prop er course to adopt is to hold the meeting as originally inten d ed and then and there adjourn it to a more suitable date.
If this course be not adopted, members will be entitled to ignore the notice of postponement, and, if sufficient to form a quorum, hold the meeting as originally convened a nd validly transact the business thereat.
" The Division Bench pointed out that the number of membe rs present at the said meeting on June 1, 1988 was sufficie nt to constitute the quorum prescribed and hence, the meeti ng must be held to be valid and respondents Nos. 1 and 2 du ly elected as Mayor and Deputy Mayor respectively.
The Divisi on Bench took the view that even if the aforesaid observatio ns made by this Court constituted only an obiter dictum of th is Court and not the ratio of the case, they were neverthele ss binding as a precedent on the Division Bench.
The learn ed Judges constituting the Bench did note that the result a nd the conclusion arrived at by them would be a little sta r tling inasmuch as the party which is in the majority in t he Corporation would not be having a Mayor or Deputy Mayor fr om its own party but would have to suffer as Mayor and Depu ty Mayor persons belonging to the minority party but observ ed that such a result could not be helped because the majori ty of the councillors who had consented to the postponement of the said 116 meeting to be held on June 1, 1988 had acted illegally a nd had thereby invited the result.
It is this decision which is sought to be assailed before us.
It was contended by Mr. G. Ramaswamy, learned Addition al Solicitor General who appeared for the appellants, that t he Division Bench had committed an error in following t he observations made in Chandrakant Khaire 's case which we ha ve already set out above as that case could be distinguished on facts.
It was submitted by him that, on the other hand, t he question raised in this Appeal was practically covered, on the basis of analogy, by the ratio of the decision of th is Court in Mohd. Yunus Saleem vs Shiv Kumar Shastri and ot h ers; , which dealt with analogous provisio ns of the Representation of the People Act, 1951.
It was fu r ther submitted by him that in view of the provisions of Section 21 of the Bombay General Clauses Act, 1904, whi ch were applicable to the case, since appellant No. 1, Mayo r, had the power to convene the meeting of the members of t he Corporation, it must be held that he also had the impli ed power to cancel or postpone the meeting.
In order to appreciate these contentions, it is nece s sary to refer to certain provisions of the said Act.
The relevant clauses of Section 19 of the said Act runs as follows: "19.
Mayor and Deputy Mayor (1) The Corporation shall at its first meeti ng after general elections and at its first meeting in the sa me month in each succeeding year elect from amongst the cou n cillors one of its members to be the Mayor and another to be the Deputy Mayor.
(2) The Mayor and the Deputy Mayor shall ho ld office until a new Mayor and a new Deputy Mayor have be en elected under sub section (1) and, in a year in which gene r al elections have been held, shall do so notwithstandi ng that they have not been returned as councillors on t he results of the elections X X X X X" Chapter XXIX of the said Act which deals with the subjec ts of rules, 117 by laws, regulations and standing orders.
Section 453 in t he said Chapter provides that the rules as amended from time to time shall be deemed to be part of the said Act.
Chapter II of the Schedule (under section 453) of t he said Act deals with the proceedings of the Corporatio n, Transport Committee, Standing Committee, etc.
Sub claus es (a) to (c) of Clause 1 of the said Chapter are as follows: "1.
Provisions regulating Corporation proceedings.
(a) There shall be in each month at least o ne ordinary meeting of the Corporation which shall be held n ot later than the twentieth day of the month; (b) the first meeting of the Corporation aft er general elections shall be held as early as conveniently m ay be on a day and at a time and place to be fixed by t he Commissioner, and if not held on that day shall be held on some subsequent date to be fixed by the Commissioner; (c) the day, time and place of meeting shall in every other case be fixed by the Mayor or in the event of the office of Mayor being vacant, or of the death or resi g nation of the Mayor or of his ceasing to be a councillor, or of his being incapable of acting, by the Deputy Mayor, or failing both the Mayor and the Deputy Mayor, by the Chairm an of the Standing Committee.
" Sub clause (f) of Clause 1, briefly put, provides th at one third of the whole number of councillors constitutes t he quorum.
Sub clause (h) provides that at least seven cle ar days ' notice shall ordinarily be given of every meetin g, other than an adjourned meeting, but in cases of urgency a ny such meeting may be called on a shorter notice except f or certain other purposes with which we are not concerned her e. Section 21 of the Bombay General Clauses Act, 1904 ru ns as follows: "21.
Power to make to include power to add to, amend, va ry or rescind, orders, etc.
Where, by any Bombay Act, or Maharashtra Act, a 118 power to issue notifications, orders, rules or by laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and cond i tions, if any, to add to, amend, vary or rescind any notif i cations, orders, rules or by laws, so issued.
" It is clear from the judgment of the Division Bench of the Gujarat High Court the correctness of which is cha l lenged before us that the Division Bench considered itse lf bound by the observations in Chandrakant Khaire 's case s et out by us earlier.
The facts of that case were that t he first meeting of the Municipal Corporation of Aurangab ad after election was held on May 6, 1988 at 2.00 p.m. as scheduled.
The Municipal Commissioner presided over the sa id meeting.
At the said meeting, not only the councillors b ut many outsiders were also present in the hall when the mee t ing was being held.
There were also a large number of su p porters of the rival parties, spectators and journalist section The Municipal Commissioner was surrounded by some 20 25 persons apart from the councillors belonging to the riv al parties, one group, comprising of the supporters of Sh iv Sena, insisted upon the meeting being adjourned for the d ay while the other group consisting of the supporters of t he Congress (I) party demanded that the meeting should be continued.
There was total confusion inside the hall.
T he Municipal Commissioner informed the Collector, who w as present in the hall, that he could not hold the meeting in the unruly and disorderly situation prevailing and co m plained that his repeated requests to the councillors to maintain peace, had no effect and they kept on shoutin g, raising slogans and fighting amongst themselves.
The Commi s sioner announced that the polling for the offices of Mayo r, Deputy Mayor and Members of the .Standing Committee wou ld commence from 2.30 p.m. onwards.
Some members belonging to Shiv Sena Party sat on the ballot boxes and others belongi ng to that party and its supporters surrounded the Municip al Commissioner demanding the meeting be adjourned to a subs e quent date.
Thereupon, the councillors belonging to a Party in Power, namely, Congress (I), started shouting at him that the meeting should be held later on that day.
Th is was followed by shouting of slogans, hurling of abuses a nd thumping of tables and even throwing of chairs.
It appea rs that the Superintendent of Police and the Collector ask ed the outsiders to clear out of the hall and requested t he councillors to take their places to enable the Municip al Commissioner to transact the business for the day a nd brought the situation under control.
The affidavit filed by the said officers, namely, the Superintendent of Police a nd the Collector, showed that the atmosphere then calmed do wn and the 119 order was restored and they left the hall.
It was thereaft er that the Municipal Commissioner announced on the mike th at the meeting would continue and the elections would be he ld at 4.30 p.m.
It was at this election, that respondents no section 1 and 2, namely, Dr. Shantaram Kale and Takiqui Hassan, we re declared elected as Mayor and Deputy Mayor respectivel y.
This election which was challenged in Court and it is in t he context of these facts that the observations set out earli er were made.
The contention of the appellant was that t he meeting was adjourned for the day or sine die by the Munic i pal Commissioner and hence the holding of the adjourn ed meeting later on the same day without fresh notice was b ad in law.
It was submitted by the learned Additional Solicit or General of India, counsel for the appellants, that t he Division Bench which delivered the impugned judgment, err ed in taking the view that it was bound by the observations s et out earlier by us in the judgment in Chandrakant Khaire 's case.
It was submitted by him that in that case the meeti ng of the Aurangabad Municipal Corporation had already co m menced and the question was as to whether the Municip al Commissioner could on his own adjourn the meeting for t he day or sine die or whether this could be done only by a resolution passed at the meeting.
It was submitted by h im that that was a case which dealt with the question of a d journment of a meeting which had commenced whereas in t he present case, a meeting which had been convened was ca n called and, later on, another meeting was fixed on a diffe r ent date.
The question in Chandrakant Khaire 's case w as relating to an adjournment of a meeting whereas in t he present case the question related to the cancellation of a notice convening the meeting.
It was urged by him that in view of the provisions of Section 21 of the Bombay Gener al Clauses Act and sub clause (c) of Clause 1 of the sa id Schedule set out earlier, the Mayor who had the power to convene the meeting must be held to have the implied pow er to cancel the meeting which was convened.
It was, on t he other hand, submitted by respondent No. 1, who appeared in person, that the decision in Chandrakant Khaire 's case is directly applicable to the case before us and in view of t he same, it must be held that the Mayor, namely, appellant N o. 1, had no power to cancel the notice convening the meeti ng and hence it must be held that the meeting at which t he supporters of respondent No. 1 which met and elected r e spondent No. 1 as aforesaid was validly held and the resol u tion appointing respondent No. 1 was validly passed.
As we have pointed out earlier in Chandrakant Khaire 's case, the meeting which was convened had already commenc ed and the conten 120 tion of the appellant was that in view of the riotous beh a viour of the councillors as well as the outsiders who h ad got into the meeting, the Commissioner had adjourned t he meeting sine die.
It was common ground that no resoluti on was passed at the meeting regarding its adjournment.
It w as in those circumstances that the aforesaid observations ha ve been made by the Division Bench of this Court which decid ed the case.
The Bench in that case was not really concern ed with a situation where a meeting had not commenced at a ll and the notice convening the meeting had been cancelled by the person authorised to issue the notice convening t he meeting.
In this connection, we may refer to the meaning of the term 'adjournment ' given in certain dictionaries.
It h as been observed in Stroud 's Judicial Dictionary, Fifth Ed i tion, Volume I at page 61 that the word 'adjournment ' mu st be construed with reference to the object of the contex t, and with reference to the object of the enquiry.
In We b ster 's Comprehensive Dictionary, International Edition, at page 18 the term 'adjournment ' has, inter alia, been defin ed as "(1) To put off to another day or place, as a meeting or session; postpone (2) To put off to the next session, as t he decision of a council (3) To postpone or suspend proceedin gs for a specified time.".
In Concise Oxford Dictionary, Six th Edition, the word 'adjournment ' has been defined, int er alia, as "(1) Put off, postpone; break off for later resum p tion".
The definitions of the aforesaid term 'adjournmen t ' in Chambers Twentieth Century Dictionary, Revised Editi on (1964) and Collins English Dictionary are more or le ss similar so the aforestated definition of the said term in Webster Comprehensive Dictionary, International Edition.
It appears to us that strictly speaking, unless the object of the context or inquiry otherwise warrants the term 'adjour n ment ' in connection with a meeting should be applied only to the case of a meeting which has already convened and whi ch is thereafter postponed and not to a case where a noti ce convening a meeting is cancelled and subsequently, a noti ce for holding the same meeting on a later date is issued, as in the case before us.
It seems that the passage in the judgment in Chandraka nt Khaire 's Case which has been strongly relied upon by t he respondent No. 1 has been taken substantially from t he observations at page 156 in Shackleton on the Law and Pra c tice of Meetings (Seventh Edition).
Shackleton has bas ed those observations on the decision of a single case, namel y, Smith vs Paringa Mines Ltd., [1906] 2 Ch.
In that cas e, a company had two directors and there was disagreement amo ng them regarding the appointment of an additional directo r.
The aggrieved director commenced an action and after this a notice was 121 issued postponing a general meeting already called but, in the belief that the attempted postponement was illegal, t he aggrieved director advertised the meeting in the press f or the same day as previously arranged.
On that day, he wi th certain other shareholders attended the meeting and at th at meeting resolutions were approved re electing himself as a director and refusing to re appoint the other director.
It was held that the resolutions were valid, for, in the a b sence of express authority in the articles, the directors of a company have no power to postpone a general meeting pro p erly convened.
It appears, therefore, that these observ a tions are based on a decision which dealt with the powers of the directors of a company which are derived from the art i cles of association of the company which essentially are in the nature of a compact or an agreement.
The only powe rs which the directors of a company have, are such as have be en conferred upon them by articles of association of the comp a ny.
The powers of the Mayor of the Corporation, on the oth er hand, are statutory in nature and they are derived from t he Bombay Municipal Corporation Act.
As set out by us earlie r, sub section (1) of Section 19 of the said Act provides f or the election of a Mayor of a Municipal Corporation.
T he Mayor has various powers conferred under the said Act.
Su b clause (c) of Clause 1 in Chapter II of the said Schedule in the Municipal Corporation Act provides that except for t he first meeting for a new Corporation which has been du ly elected, the time, day and place of meeting shall be fix ed by the Mayor.
The powers of the Mayor regarding the holdi ng of meetings of the Corporation, therefore, are not deriv ed from any compact as in the case of directors of a compa ny but are essentially statutory in nature.
We do not thin k, with respect, that, in these circumstances, it would be proper to apply the aforestated observatioins of Shacklet on to the present case.
Moreover, as we have already point ed out, the case before this Court in Chandrakant Khaire vs D r. Shantaram Kale and Ors., was not a case where a noti ce convening a meeting was cancelled and later a notice conve n ing another meeting was issued but it was a case where a meeting duly convened had commenced and it was alleged th at the Municipal Commissioner had adjourned it without the re being any resolution to that effect.
We are, therfore, of the view that the aforesaid observations in the decision of Chandrakant Khaire 's case are not applicable to the ca se before us.
We can derive some support to our view from a decisi on of this Court in Mohd. Yunus Saleem vs Shiv Kumar Shast ri and Ors.
In that case, the facts were that a parliamenta ry constituency from which election to Lok Sabha took place in 1971 consisted of five assembly constituencies.
The polli ng at two of these was scheduled to take place 122 on March 1 and at the other three on March 3, 1971.
T he polling at the first two constituencies took place as sche d uled but on March 2 there was a communal riot, as a resu lt of which the Election Commissioner postponed the poll at t he other three constituencies from March 3 to March 9.
T he polling took place in the said constituencies on the pos t poned date and the first respondent was declared electe d.
The appellant challenged the election in an election pet i tion.
It was contended by him, inter alia, that the Electi on Commissioner had no power to alter the date of the poll at the remaining constituencies.
The election petition w as dismissed by the High Court.
On appeal to this Court, th is Court took the view that Section 153 of the Representati on of the People Act, 1951 on which reliance had been placed by the High Court in taking the view that the Election Commi s sioner had power to postpone the poll was not applicab le because it dealt only with the question of extending ti me for completion of the election and not for altering the da te of the poll; Sections 57 and 58 of the Representation of t he People Act, 1951 could not be invoked by the Election Co m missioner for this purpose.
It was, however, held th at section 30 of the Representation of the People Act read wi th Section 21 of General Clauses Act gives necessary powers to the Election Commissioner to alter the date of the poll.
We may point out that we do not propose to set out the prov i sions of Section 30 of the Representation of the People A ct because it is not necessary to do so.
Suffice it to no te that the said section provides that the Election Commissio n er shall by notification in the official gazette appoi nt inter alia the date or dates on which a poll shall, if necessary, be taken and also the date before which t he election shall be completed.
Section 153 confers upon t he Election Commissioner the power to extend the time for t he completion of election.
Section 21 of the Central Gener al Clauses Act is in pari materia with Section 21 of the Bomb ay General Clauses Act which was applicable in the case befo re us and which we have already set out earlier.
It is tr ue that the ratio of this case is not directly applicable to the case before us.
However, it does appear to us that, on a parity of reasoning, it must be held that the Mayor had t he implied power to cancel a meeting or 'postpone a meeti ng which was duly convened before the said meeting commenc ed and to convene the same on a subsequent occasion.
It is needless to say that this power must be exercised by t he Mayor bona fide and not for a collateral purpose.
The pow er must again be exercised for a proper purpose.
If the May or is unable to show this, then the postponement of the meeti ng must be held to be bad.
But it is not possible to say th at the Mayor had no power to cancel a meeting duly convened a nd to direct that the same should be held on a later day pr o vided that the power was exercised 123 bona fide and for a justified purpose.
We may now refer to certain other decisions which a re cited before us.
Our attention was drawn by respondent No. 1 to the decision of a learned Single Judge of the Gujar at High Court in Babubhai Girdharbhai Patel vs Manibhai Asha b hai Patel & Others, [1975] 16 Gujarat Law Reporter, 566.
In that case, the facts were in pari materia with the fac ts before us.
It was held by the learned Single Judge of th at Court that on a plain reading of sub section (11) of Secti on 51 of the Gujarat Municipality Act it is clear that a mee t ing can be adjourned only provided a majority of the cou n cillors accord their consent to such adjournment.
It w as also held that it is not open to the President to cancel or adjourn the meeting if he personally considers it necessa ry or desirable to do so before the councillors assemble.
It was observed that the President of the Municipality does n ot have unrestricted power to cancel or adjourn a meeting at his humour or pleasure or caprice.
No assistance can be arrived at by respondent No. 1 from this judgment becau se that decision has been reversed in respect of the aforesta t ed conclusions by a Division Bench of the Gujarat High Cou rt in Letters Patent Appeal No. 183 of 1974 decided on Novemb er 20, 1974 by B.J. Divan, C.J., and T.U. Mehta, J., the jud g ment having been delivered by Divan, C.J.
In that case, it was held that it is obvious that the President of the muni c ipality in whom the power to call a meeting of the munic i pality had been vested by section 51(1) of the Gujar at Municipalities Act, 1963 must also be conferred the power to adjourn the meeting if, because of certain extraordina ry circumstances like civil commotion or act of God or a ny other unusual event, it becomes necessary to adjourn t he holding of the meeting.
The learned Judges constituting t he Division Bench held that they were unable to agree with t he view of the learned Single Judge to the effect that t he doctrine that he who has such power to convene a meeting h as also the power to adjourn the meeting, if the circumstanc es so demand, cannot be read into the provisions of the Gujar at Municipalites Act.
The learned Judges, however, agreed wi th the learned Single Judge that the President of the Munic i pality had no power to adjourn the meeting at his !will or caprice.
They also pointed out that unless unusual circu m stances beyond the control of the President of the Munic i pality prevail, he cannot utilise this power to adjourn a meeting which has once been notified.
Taking into accou nt all the facts and circumstances of the case, it was he ld that the adjournment of the meeting of the municipality by the President was not warranted in law and was, therefor e, invalid.
We may, however, point out that neither the learn ed Single Judge who delivered the judgment in Babubhai Gir d harbhai Patel vs 124 Manibhai Ashabhai Patel & Ors., nor the Division Benc h, which reversed this decision to the extent set out by us have taken into account the provisions of section 21 of t he Bombay General Clauses Act, which we have already referr ed to.
That section fortifies the view taken by the Divisi on Bench.
We may now refer to the decision of the Allahabad Hi gh Court in R.K. Jain vs Bar Council of U.P. & Ors., AIR (197 4) 61 Allahabad 211.
In that case, the Bar Council ofUPin exercise of its power under section 15(2) of theAdvocates Act, 1961, framed rules which regulate the manner and proc e dure of holding the election of the members to the B ar Council.
These rules are known as Bar Council of Utt ar Pradesh Election Rules, 1968.
Rule 4 lays down that t he election of members to the Bar Council shall be held at su ch place or places, on such date or dates, and during such ho ur or hours as the Council may appoint.
Rule 6 provides th at notice of the time and place of election shall be given by publication in the manner prescribed under the rules.
T he learned Single Judge (K.N. Singh, J., as he then was) w ho decided the case held that the principles laid down in section 21 of the General Clauses Act are fully applicab le in construing Rules 4 and 6 of the said Election Rule s, 1968.
On the facts of the case it was held that the B ar Council had the full jurisdiction to change the date of an election and to postpone the election or to fix dates f or holding the election afresh till the elections were comple t ed.
In our view, the learned Judges of the Gujarat Hi gh Court who delivered the judgment under consideration befo re us need not have considered themselves bound by the afor e said observations in Chandrakant Khaire 's case, as they ha ve done.
In the first place, these observations do not const i tute the ratio of the judgment in that case.
The question in that case was whether a meeting which was duly convened a nd had commenced could have been adjourned by the Municip al Commissioner and not whether a notice convening a meeti ng issued by the Municipal Corporation could be cancelled by him before the commencement of the meeting with a view to have the meeting held on a subsequent date.
We are of t he view that the Division Bench was not really called upon to consider the situation in such a case, as we have point ed out earlier.
Moreover, it appears that the Division Ben ch has not taken into account the provisions of section 21 of the Bombay General Clauses Act or the principles underlyi ng that section.
No argument was advanced before the Divisi on Bench on the basis of that section at all.
The attention of the Division Bench was not drawn to the judgment of th is Court in Mohd. Yunus Saleem 's case.
Had that 125 been done, we feel that the Division Bench which decided t he Chandrakant Khaire 's case, might not have made the afor e stated observations at all.
In our view, the principl es underlying section 21 of the Bombay General Clauses A ct would be clearly applicable in considering the scope of t he powers of the Mayor of a Municipal Corporation set out in Clause 1 of Chapter II of the said Schedule in the said A ct and in particular, in sub clause (c) of the said clause.
We may point out that the rules in the Schedule have be en framed under the statutory provisions of the said Act a nd section 453 of the said Act provides that the rules in t he schedule as amended from time to time shall be deemed to be part of that Act.
In our view, the power of the Mayor co n ferred under Clause 1 of Chapter II of the said Schedu le must be regarded as a statutory power as distinguished fr om the powers of directors of a company which are deriv ed strictly from the Articles of Association of the Compa ny which are contractual in nature.
There appears to be no reason to take the view that the principles underlyi ng section 21 of the Bombay General Clauses Act would not app ly to the said powers of the Mayor.
In our view, appellant N o. 1, the Mayor of respondent No. 5, Corporation, had the pow er to cancel the notice convening the meeting before the co m mencement of the meeting with a view to convene the meeti ng on a later date.
The question, however, whether he h as exercised the power within its true ambit is a differe nt question altogether.
In this regard, in our opinion, a l though the Mayor had the power to cancel the notice conve n ing the meeting and to direct the secretary to issue a notice to that effect, the said power could be exercis ed only bona fide and for a purpose or purposes within t he scope of the said Act.
If the power was exercised mala fi de or for a collateral purpose, the exercise of the power wou ld certainly be bad.
In the present case, there is considerab le factual controversy as to whether, even on the footing th at appellant No. 1 had the power to cancel the notice conveni ng the meeting, that power was exercised bona fide for a pu r pose within the scope of the said Act or whether it w as exercised for collateral or impermissible purposes.
We remand the matter to the Gujarat High Court for the determ i nation of that question.
In view of the urgency of t he matter, we would request the Gujarat High Court to dispo se of the writ petition latest by 30th April, 1989 as far as possible.
The interim order granted by this Court on Nove m ber 16, 1988 shall continue upto 5th May, 1989, subject to any orders which may be passed hereafter by the Gujarat Hi gh Court.
From that date, it will be for the parties to app ly for appropriate interim orders to the Gujarat High Cou rt till the case is finally disposed of by that Court.
126 The Appeal is allowed to the extent aforesaid.
Taki ng into account the facts and circumstances of the case, t he parties shall bear and pay their own costs.
R.P.D. Appeal allowed.

summary:
Appellants Nos. 1 and 2 were elected on June 30, 1987 as Mayor and Deputy Mayor respectively of the Municipal Corp o ration of Bhavnagar, Gujarat for a period of one year.
On May 21, 1988 a notice was issued by them for convening a meeting of the members of the Corporation on June 1, 1988 to elect a Mayor and Deputy Mayor and for certain other bus i ness mentioned in the Agenda circulated.
Subsequently, on May 31, 1988, appellant No. 1 gave instructions by a lett er to the Deputy Secretary of the Corporation to postpone t he meeting as he had to go to Gandhinagar for urgent work of the Corporation.
The said instructions were given by appe l lant No. 1 after consulting 32 members of the Corporatio n. Pursuant to the said letter and the instructions contain ed therein, appellant No. 3, the Secretary of the Corporatio n, issued a letter addressed to all the members of the Corpor a tion informing them that the meeting scheduled for June 1, 1988 had been postponed.
In spite of the aforesaid lett er postponing the meeting, 19 members of the Corporatio n, presumably belonging to the minority party or partie s; assembled at the place indicated in the notice dated May 2 1, 1988 and elected respondent Nos. 1 and 2 as Mayor and Depu ty Mayor.
Neither the Commissioner of the Corporation nor i ts Secretary or Deputy Secretary was present at the said mee t ing, and the minutes of that meeting were not recorded.
As the appellants Nos. 1 and 2 did not hand over t he charge to respondents Nos. 1 and 2, the latter filed a wr it petition in the High Court for being declared as legal ly elected Mayor and Deputy Mayor and for an order that char ge of the said posts should be handed over to them.
111 The Single Judge dismissed the Writ Petition taking t he view that as the Mayor in exercise of the powers conferr ed upon him under subclause (c) of clause (1) of Chapter II of the Schedule (under section 453) in the Bombay Provincial Munic i pal Corporations Act, 1949 can issue a notice for conveni ng the meeting, he is also entitled to the power to cancel or rescind the notice under the provisions of section 21 of t he Bombay General Clauses Act, 1904.
Division Bench of the High Court, however, allowed t he Letters Patent Appeal filed by respondents Nos. 1 and 2 taking the view that it was bound by the view taken by th is Court in Chandrakant Khaire vs Dr. Shantaram Kale and ot h ers; , where it was observed that a proper ly convened meeting could not be postponed.
The proper cour se to adopt is to hold the meeting as originally intended a nd then and there adjourn it to a more suitable date.
In the appeal by special leave filed by the appellan ts before this Court, it was contended on behalf of the appe l lants that the Division Bench had committed an error in following the observations made in Chandrakant Khaire 's ca se as that case could be distinguished on facts, that t he question raised in this appeal was practically covered on the basis of analogy, by the ratio of the decision of th is Court in Mohd. Yunus Saleem vs Shiv Kumar Shastri and ot h ers; , which dealt with analogous provisio ns of the Representation of the People Act, 1951 and that in view of the provisions of Section 21 of the Bombay Gener al Clauses Act, 1904, which were applicable to the case, sin ce appellant No. 1 had the power to convene the meeting of t he members of the Corporation, it must be held that he also h ad the implied power to cancel or postpone the meeting.
Respondent No. 1 contested the appeal and submitted th at the decision in Chandrakant Khaire 's case was direct ly applicable to the case and it must be held that the appe l lant No. 1 had no power to cancel the notice convening t he meeting and hence it must be held that the meeting at whi ch the supporters of respondent No. 1 which met and elect ed respondent No. 1 as Mayor was validly held and the resol u tion appointing respondent No. 1 was validly passed.
Partly allowing the appeal and remanding the matter ba ck to the High Court, this Court, HELD: (1) Unless the object of the context or inqui ry otherwise warrants the term 'adjournment ' in connection wi th a meeting should 112 be applied only to the case of a meeting which has alrea dy been convened and which is thereafter postponed and not to a case where a notice convening a meeting is cancelled a nd subsequentiy, a notice for holding the same meeting on a later date is issued, as in the instant case.
[120E F] (2) Mayor had the implied power to cancel a meeting or postpone a meeting which was duly convened before the sa id meeting commenced and to convene the same on a subseque nt occasion.
It is needless to say that this power must be exercised by the Mayor bona fide and not for a collater al purpose.
The power must again be exercised for a prop er purpose.
If the Mayor is unable to show this, then t he postponement of the meeting must he held to he bad.
But it is not possible to say that the Mayor had no power to canc el a meeting duly convened and to direct that the same shou ld he held on a later day provided that the power was exercis ed bona fide and for a justified purpose.
[122G H; 123A] Chandrakant Khaire vs Dr. Shantaram Kale and other s; , ; , distinguished.
(3) The principles underlying section 21 of the Bomb ay General Clauses Act would he clearly applicable in conside r ing the scope of the powers of the Mayor of a Municip al Corporation set out in Clause 1 of Chapter II of the sa id Schedule in the said Act and in particular, in sub clau se (c) of the said clause.
The rules in the Schedule have be en framed under the statutory provisions of the said Act a nd section 453 of the said Act provides that the rules in t he Schedule as amended from time to time shall he deemed to he part of that Act.
The power of the Mayor conferred und er clause 1 of Chapter II of the said Schedule must be regard ed as a statutory power as distinguished from the powers of directors of a company which are derived strictly from t he Articles of Association of the Company which are contractu al in natore.
[125A C] (4) There appears to be no reason to take the view th at the principles underlying section 21 of the Bombay Gener al Clauses Act would not apply to the said powers of the Mayo r. In the instant case, appellant No. 1, the Mayor of respon d ent No. 5, Corporation, had the power to cancel the noti ce convening the meeting before the commencement of the meeti ng with a view to convene a meeting on a later date.
[125D] Smith vs Paringa Mines Ltd., [1906] 2 Ch.
103, disti n guished.
Mohd. Yunus Saleem vs Shiv Kumar Shastri and Ors .; , , relied on.
113 Babubhai Girdharbhai Patel vs Manibhai Ashabhai Patel Others, [1975] 16 Gujarat Law Reporter, 566, referred to.
R.K. Jain vs Bar Council of U.P. & Ors., AIR (1974) 61 Allahabad 211, approved.


judgement:
ivil Appeal No. 855 of 1978.
186 From the Judgment and Order dated 21.3.
1978 of the Rajasthan High Court in S.B. Civil Second Appeal No. 59 of 1978.
Tapas Ray, Sushil Kumar Jain, Sudhanshu Atrey and L.C. Agrawalas for the Appellant.
G.L. Sanghi, Parmod Dayal, A.D. Sangar, Ajay K. Jain and K.K. Jain for the Respondent.
The Judgment of the Court was delivered by NATARAJAN, J.
This appeal by special leave is by a tenant and is directed against the judgment of the High Court of Rajasthan in Civil Second Appeal No. 59 of 1978 confirming the judgment of the Appellate Court whereby the appellant was held liable to be evicted from the premises leased to him by the respondent on the ground of having parted with the possession of the premises.
C.M.P. No. 906 of 1973 has been filed by the respondent under Order 41 Rule 27 C.P.C. for certain documents being received as additional evidence.
In so far as the facts are concerned, there is no con troversy whatever.
In January 1963, the appellant took on lease from the respondent a building situate in Rasta Ka Gheewalan in the city of Jaipur.
In the Deed of Rent execut ed by the appellant, there was an express provision that he should not sublet the premises to anyone.
However, in March 1968, a social club known as the Lokpriya Social Club came to be opened in the premises and the members of the club began using the premises for playing cards, chopar, chess etc.
every evening till about midnight or even till 1 a.m.
The functioning of the club in the premises led to the respondent filing a suit against the appellant seeking his eviction on two grounds viz. (1) sub letting the premises contrary to the terms of the lease deed and (2) conversion of the user of the premises from residential to non residen tial purposes.
As it has been concurrently held by the first two courts that the premises had not been leased for resi dential purposes, no further advertance is called for to the second ground on which the eviction was sought for.
As regards the first ground, the appellant did not dispute but on the other hand admitted the factum of the Lokpriya Social Club being opened in the leased premises in March 1968 and the club functioning 187 in the premises since then.
He however contened that he had neither sublet for rent nor otherwise parted with the pos session of the premises to the club.
His case was that he continued to have possession of the premises for doing business in gold jewellery and cloth on commission basis in a small portion of the building but being the founder of the club, he had provided the club a room to have its office and a hall for the club members to assemble and play games such as cards, chess, chopar etc.
In the trial of the suit, the respondent examined him self and an Assistant in the office of the Registrar of Companies as witnesses on his side.
The appellant examined himself and three other witnesses on his side to substanti ate his contentions.
The Trial Court held that the respondent had failed to prove that the appellant had sublet the premises to the Lokpriya Social Club for rent and that the evidence only warranted an inference that the appellant had allowed the club to use the premises as a licencee and as such, the appellant was not liable to be evicted.
The Appellate Court, while concurring with the Trial Court that the evidence did not establish any subletting of the premises for rent, nevertheless held that there were adequate materials to hold that the appellant had parted with the possession of the premises in favour of the club and such parting of posses sion would amount to subletting within the meaning of the Act and as such the appellant was liable to be evicted.
Consequently, the Appellate Court passed a decree for evic tion against the appellant.
The Second Appeal to the High Court by the appellant did not meet with success and hence he has approached this Court by way of appeal by special leave.
Since the first ground on which eviction was sought for was the subletting of the premises to the Lokpriya Social Club, the question whether the appellant was receiving any rent or not from the club had loomed large in the proceed ings before the Trial Court and the Appellate Court.
The appellant 's categoric stand that he was not receiving any rent from the Club and his permitting the club to use the premises was not for any monetary return could not be dis lodged by the respondent by specific materials.
However, after the appellant had filed this appeal, the respondent has been able to obtain copies of the Managing Committee 's reports, balance sheets and auditor 's reports of the club for the years 1968 to 1976.
It is relevant to mention here that the club has been registered as a limited company under the Indian .
As a registered company, it had to prepare audited balance 188 sheets every year and present the same together with the Auditor 's Report to the members of the club and have the same approved.
The respondent seeks permission of the Court to have the Managing Committee 's reports, the Auditor 's Reports and the balance sheets filed as additional evidence in the appeal and for that purpose he has filed CMP No. 906/79 under Order 41 Rule 27 C.P.C.
The learned counsel for the appellant vehemently opposed the filing of additional documents by the respondent as additional evidence on the ground these documents ought to have been filed before the trial court or the Appellate Court and hence they cannot be filed now.
It was also contended that if additional docu ments are received in evidence at this stage, the appellant will have no opportunity to adduce contraevidence.
We will take up the question whether CMP No. 906/79 should be al lowed or not for consideration later.
We will first examine whether even without these documents the order of eviction passed by the Appellate Court and confirmed by the High Court can be sustained or not.
It may be recalled that the decree for eviction against the appellant has been passed on the ground that though subletting of the premises for rent has not been proved, yet the appellant must be held to have parted with possession of a portion of the premises to the club and such parting with possession would attract Section 13(1)(e) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (for short the Act).
On a reading of sub clause(e) of Section 13(1), it is seen that a tenant will render himself liable for evic tion if he has "assigned, sublet or otherwise parted with the possession of, the whole or any part of the premises without the permission of landlord." Consequently even if a tenant parts with possession of the whole or any part of the premises without assigning or subletting the premises, he would still be liable to be evicted from the premises under the Act.
If from this perspective, the user of the premises by the club is examined, it can certainly be held that the appellant had parted with the possession of the premises as envisaged in clause (e) of sub section 1 of Section 13.
This conclusion is warranted by several factors.
Admittedly, when the club began to function in the leased premises, a name board carrying the name of the Club came to be exhibited in the premises.
It is also admitted that the members of the club assemble at the premises everyday and play cards and other indoor games from evening till about midnight.
Though the appellant would say that the club members cannot have access to the premises unless he or in his absence his brother or son opens the premises, there is no evidence to show that the appellant had at any time exercised his right to exclusive 189 possession and kept the premises locked and denied the members of the club entry to the premises.
That apart there is a significant fact which has escaped the notice of the Appellate Court and the High Court viz that the club has its registered office at the leased premises.
Section 146 of the Indian enjoins every company to have a regis tered office to which all communications and notices may be addressed.
Once a company has a registered office it is bound to comply with several provisions of the , viz. (a) the register of members is to be kept there (Section 163; (b) the right of inspection has to take place there (Section 163); (c) the register of directions, etc., is also to be kept there (Section 303): (d) the account books are to be maintained there unless the directors decide otherwise (Section 20): (e) the register of mortgages and charges and copies of registered documents are also to be kept there (Section 143); and the right of inspection of them is to be exercised there (Section 144).
(f) service of documents should be effected there.
These requirements of the Act have to be complied with by the club by virtue of its registered office being situated in the leased premises.
The appellant cannot prevent the club from performing its statutory duties so long as the club has its registered office in the premises.
Hence this factor also warrants the view that the appellant had parted with possession of the major portion of the premises to the club.
In such circum stances we see no merit in the contention of the appellant that the user of a portion of the premises by the club is only of a permissive nature and that there was no parting with possession of the premises to the club.
The Appellate Court and the High Court were therefore, right in holding that the user of the premises by the club would amount to the appellant having parted with possession of a portion of the premises" as contemplated under Section 13(1)(e) of the Act.
Learned counsel for the appellant referred us to Smt.
Rajbir Kaur & Anr.
vs M/s. section Chokesiri & Co., JT and argued that even if the appellant had conferred rights of exclusive possession to the club over a portion of the leased premises, the club would not be a sub lessee but only a licencee of the appellant.
We are unable to accept this argument because of various factors.
In the first place, in Smt.
Rajbir Kaur, (supra) it was clearly found that in the documents which had been brought about between the parties.
the occupants were inducted into possession only as licencees and not as lessees.
Secondly, the case arose under the East Punjab Rent Restriction Act in which Section 13 refers only to a tenant transferring his right under the lease or subletting the entire building or any portion thereof whereas in Section 13(1)(e) of the Rajasthan Premises (Control 190 of Rent and Eviction) Act with which we are concerned, there is reference to a tenant assigning, subletting or otherwise parting with the possession of the whole or any part of the premises without the permission of the landlord.
In such circumstances, the judgment in Smt.
Rajbir Kaur & Anr., (supra) cannot be of any avail to the appellant.
Coming now to C.M.P. No. 906/79 filed by the respondent for receiving certain documents as additional evidence, we have already stated that these documents consist of the reports of the Managing Committee, the balance sheets and the auditor 's reports for the years 1968 to 1976.
Though there are as many as 25 documents filed along with the application they really constitute 8 sets of documents pertaining to the period 1963 to 1976 except for the year 1969.
The purpose of filing these documents is to show that in each of the years in question it has been stated in the auditor 's report that the rent of the club premises has not been determined and provided for as the matter is under litigation.
Mr. Sanghi, learned counsel for the respondent submitted that the explanation given in the auditor 's re ports for provision not having been made in the balance sheet for payment of rent by the club was not because the club had been allowed free user of the premises without payment of rent but because there was litigation regarding the user of the premises by the club.
The further argument was that the auditor 's report clearly showed that the club was bound to pay rent to the appellant for the user of the premises but such payment was being deferred in view of the pendency of the eviction suit between the respondent and the appellant.
Mr. Sanghi stated that there cannot be any objec tion to the additional documents being received in evidence because they were reports and balance sheets submitted by the club, of which the appellant is a member, to the Regis trar of Companies and hence there is no question of the appellant being taken by surprise by the contents of the documents.
On the other hand, the learned counsel for the appellant vehemently contended that the respondent is not entitled under law to file documents by way of additional evidence at this belated stage of matters because the docu ments were in existence even when the parties went to trial before the Trial Court and as such the respondent should have acted diligently and either summoned for the documents from the office of the Registrar of Companies or obtained copies of them and filed them in Court during the trial or atleast when the matter was before the first Appellate Court.
On a consideration of the matter we think the objections raised 191 by the appellant 's counsel for the filing of additional evidence by the respondent in the appeal proceedings before us merits acceptance.
It is true that the documents sought to be filed by way of additional evidence are indisputably the audited balance sheets and reports submitted by the club but even so the fact remains that all the documents could have been obtained and filed by the respondent before the Trial Court itself since the judgment had been rendered by the Trial Court only on 22.2.
Even if the respondent was not able to file the documents before the Trial Court, he could have filed the documents before the Appellate Court and sought its permission to file them as additional evi dence.
Even before the High Court there was no attempt in this behalf.
No satisfactory explanation has been offered by the respondent for having failed to produce the documents before the Courts below or the High Court.
In such circum stances, we see no justification to allow C.M.P. No. 906/79 and permit the respondent to file the documents in question as additional evidence in the proceedings.
Accordingly C.M.P. No. 906/79 is dismissed.
In spite of the dismissal of C.M.P. No. 906/79, since we have sustained the view taken by the first Appellate Court and the High Court that the appellant had parted with pos session of a major portion of the leased premises in favour of the Lokpriya Social Club and such parting with possession would attract the operation of Section 13( 1 )(e) of the Act, we find no merit in the appeal and accordingly it will stand dismissed.
The appellant is, however, given three months time from today to vacate and deliver vacant posses sion of the premises to the respondent subject to his filing an undertaking in the usual terms within a period of four weeks from today.
There will be no order as to costs.
R.S.S. Appeal & Petition dismissed.

summary:
The appellant/tenant took on lease a building from the respondent.
In the Deed of Rent there was an express provi sion that the tenant should not sublet the premises to anyone.
However, shortly thereafter a social club came to be opened in the premises, where members played cards, chess etc.
every evening till about midnight.
The respondent thereupon filed.
a suit against the tenant seeking his eviction inter alia on the ground of sub letting the prem ises contrary to the terms of the lease deed.
The tenant admitted the factum of the opening of the club but contended that he had neither sublet the premises for rent nor other wise parted with its possession to the club.
The Trial Court held that the respondent had failed to prove that the appellant had sublet the premises to the Club for rent, and that the evidence only warranted an inference that the appellant had allowed the club to use the premises as a licencee and as such, the appellant was not liable to be evicted.
The Appellate Court held that the evidence did not establish any subletting of the premises for rent, but nevertheless there were adequate materials to hold that the appellant had parted with the possession of the premises in favour of the club and such parting of possession would amount to subletting within the meaning of section 13(1)(e) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 and as such the appellant was liable to be evicted.
Consequently, the Appellate Court passed a decree for evic tion.
The High Court dismissed the second appeal of the appellant.
After the filing of the appeal in this Court the re spondent filed a civil miscellaneous petition seeking per mission to produce certain documents in the nature of the Auditor 's reports and the Managing Committee 's reports of the club as additional evidence to establish that 185 there existed a stipulation for the payment of rent by the club to the appellant, and the club was bound to pay rent to the appellant for the user of the premises, but such payment was being deferred in view of the pendency of the eviction suit between the respondent and the appellant.
Dismissing the appeal and the civil miscellaneous peti tion, the Court, HELD: (1) On a reading of sub clause (e) of Section 13(1) it is seen that a tenant will render himself liable for eviction if he has "assigned, sublet or otherwise parted with the possession of, the whole or any part of the prem ises without the permission of landlord.
" Consequently, even if a tenant parts with possession of the whole or any part of the premises without assigning or subletting the prem ises, he would still be liable to be evicted from the prem ises under the Act.
If from this perspective the user of the premises by the club is examined, it can certainly be held that the appellant had parted with the possession of the premises as envisaged in clause (e) of sub section (1) of section 13.
[188E G] (2) There is no evidence to show that the appellant had at any time exercised his right to exclusive possession and kept the premises locked and denied the members of the club entry to the premises.
[188H; 189A] (3) Section 146 of the Companies Act enjoins every company to have a registered office and certain requirements of the Companies Act have to be complied with by the club by virtue of its registered office being situated in the leased premises.
The appellant cannot prevent the club from per forming its statutory duties so long as the club has its registered office in the premises.
[189B, D] Smt.
Rajbir Kaur vs M/s. section Chokesiri & Co., JT 1988(3) SC 593, distinguished.
(4) The additional documents could have been obtained and filed before the Trial Court, the Appellate Court or the High Court and no satisfactory explanation has been offered for having failed to do so.
Hence there is no justification to allow the civil miscellaneous petition.
[191 C]