judgement:
Civil Appeal No. 936 of 1977.
From the Judgement and Order dated 16.9.1976 of the Bombay High Court in S.C.A. No. 2741 of 1971.
Shishir Sharma and P.H. Parekh for the Appellant.
Dr. N.M. Ghatate, S.V. Deshpande for the Respondent.
83 The Judgement of the Court was delivered by K.N. SAIKIA, J.
This appeal by Special Leave is from the Judgement of the High Court of Bombay, dated 16th September, 1976, in Special Civil Application N. 2741 of 1971 upholding the Judgement of the Maharashtra Revenue Tribunal.
The suit land bearing Survey No. 182, owned by Shankarlal Kunjilal, was taken under Government management as per order of the Assistant Collector, Jalgaon bearing No. TEN.
WS 946 dated 14.12.1950 as the land was lying fallow for two consecutive years.
The Mallatdar, Raver was appointed as a Manager thereof under Section 45 of the Bombay Tenancy and Agricultural Lands Act, 1948, hereinafter referred to as "the Act. ' After assuming the management the land was leased out to the appellant Dhondu Choudhary by the Mamlatdar for a period of 10 years by an agreement of lease dated 7.12.1951.
The period of lease accordingly expired on 6.12.1951.
The period of lease accordingly expired on 6.12.1961.
However, the management of the land was terminated by the Government by the Assistant Collector 's order dated 27.7.1963, and the possession thereof was ordered to be restored to the respondent landlord.
There was nothing on the record to show that the lease which expired on 6.12.1961 was extended by the Manager thereafter till the termination of management by order dated 27.7.1963.
The appellant claimed that he was paying rent to the Mamlatdar during the period of 7.12.1961 to 27.7.1963 and thus continued to a be tenant in respect of the land.
He filed a Civil Suit against the respondent in the Court of Civil Judge, Raver, who made a reference to the Mamlatdar, Raver who held that the appellant continued to be tenant.
The respondent 's appeal to the Assistant Collector having failed, he moved a revision application before the Maharashtra Revenue Tribunal, hereinafter referred to as `the Tribunal ' wherein the question arose whether the appellant 's tenancy was subsisting on 27.7.1963, and whether he had become the tenant in respect of the land since that date under the Act.
Relying on a bench decision of the Bombay High Court in Special Civil Application No. 1077 of 1961 Ghambhir Lal Laxman Das vs Collector of Jalgaon, (decided on 20.12.1962) wherein it was held that the person to whom lease was granted by the Manager of the land which was taken under Government management, could not continue to be the tenant after the expiry of the period of 10 years without a fresh lease, and that after the management was terminated by the 84 Government on expiration of the lease, the tenancy under the lease could not be said to be subsisting on the date on which the management was terminated.
The Tribunal held that the appellant could not continue as tenant since termination of the lease on 27.7.1963.
The Tribunal further held that since the land was taken under the Government management by the order of the Assistant Collector under Section 88(1) of the Act the provision s of Sections 1 to 87 were not applicable and the appellant, therefore, could not continue to be tenant after expiration of the period of lease on 6.12.1961.
The High Court in the Special Application under Article 227 of the Constitution of India having upheld the above finding of the Tribunal, the appellant obtained Special Leave.
The only submission of the learned counsel for the appellant Mr. Shishir Sharma is that the appellant having continued payment of rent to Mamlatdar even after expiry of lease till the termination of management, he continued to be a tenant which the landlord could not avoid on resumption of the land.
Dr. N.M. Ghatate, the learned counsel for the respondent, submits that the appellant could by no means continue to be a tenant after his lease expired and no fresh lease was granted to him and more so after the management was terminated on 27.7.1963.
We find force in Dr. Ghatate 's submission.
Admittedly the management of the land was assumed by the State Government under Section 65 of the Act.
Section 65 deals with assumption of management of lands which remained unclutivated, and says: "65.
(1) If it appears to the State Government that for any two consecutive years, any land has remained uncultivated or the full and efficient use of the land has not been made for the purpose of agriculture, through the default of the holder or any other cause whatsoever not beyond his control the State Government may, after making such inquiry as it thinks fit, declare that the management of such land shall be assumed.
The declaration so made shall be conclusive.
(2) On the assumption of the management, such land shall vest in the State Government during the continuance of the management and the provision of Chapter IV shall mutatis mutandis apply to the said land: 85 Provided that the manager may in suitable cases give such land on lease at rent even equal to the amount of its assessment: Provided further that, if the management of the land has been assumed under sub section (1) on account of the default of the tenant, such tenant shall cease to have any right or privilege under Chapter II or III, as the case may be, in respect of such land, with effect from the date on and from which such management has been assumed.
" Admittedly, the Manager was appointed under Section 45 of the Act, Section 45 deals with vesting of estate in management, and says: "45.
(1) On the publication of the notification under section 44, estate the in respect of which the notification has been published shall, so long as the management continues, vest in the State Government.
Such management shall be deemed to commence from the date on which the notification is published and the State Government shall appoint a Manager to be in charge of such estate.
(2) Notwithstanding the vesting of the estate in the State Government under sub section (1), the tenant holding the lands on lease comprised in the estate shall, save as otherwise provided in this Chapter, continue to have the same right and shall be subject to the same obligations, as they have or are subject under the proceeding Chapters in respect of the lands held by them on lease.
" Section 61 deals with termination of management, and says: "61.
The State Government, when it is of opinion that it is not necessary to continue the management of the estate, by order published in the Official Gazette, direct that the said management shall be terminated.
On the termination of the said management, the estate shall be delivered into the possession of the holder, or, if he is dead, of any person entitled to the said estate together with any balances which may be due to the credit of the said holder.
All acts done or purporting to be done by the Manager during the continuance of the management of the estate shall be binding on the holder or to any person to whom the possession of the estate has been delivered.
" 86 Thus on termination of the management the suit land in the instant case was to be delivered into the possession of the respondent holder and all acts done or purporting to be done by the Manager during the continuance of the management of the estate should be binding on the holder or on any person to whom the possession of the estate had been delivered.
In the instant case the finding of the Courts below is that after expiry of the lease no fresh lease was granted by the Manager.
In view of this finding, the appellant 's claim to have continued as the tenant even after expiry of the lease on 6.12.1961 and till 27.7.1963, the date of termination, by paying rent for the period to the Mamlatdar would be of no avail, in the absence of fresh lease after expiry of the 10 years lease on 6.12.1961.
The Tribunal followed the binding decision of the Bombay High Court holding that there was no lease in favour of the appellant and that by mere holding over he could not have continued the status of a tenant.
This would be so because the Act does not envisage the Government as a landholder but only as Manager.
While delivering back the land into the possession of the landholder, it could not be burdened with any tenancy created or resulting while under management.
Besides, there could be no privacy between the landlord and the erstwhile tenant under Government in the matter of tenancy.
Between the appellant and the respondent landlord, therefore, no question of the former continuing as tenant of the latter could arise after the land was reverted to the landholder.
Mr. Sharma 's submission that the appellant was a deemed tenant is also not tenable.
The appellant could not have been a deemed tenant under Section 4 or 4B of the Act inasmuch as Section 88 of the Act grants exemption inter alia to lands held on lease from the Government.
It says: "88.
(1) Save as otherwise provided in sub section(2), nothing in the forging provisions of this Act shall apply (a) to lands belonging to, or held on lease from, the Government; xxx xxx xxx xxx xxx xxx xxx xxx (d) to an estate or land taken under management by the State Government under Chapter IV or section 65 except as provided in the said Chapter IV or section 65, as the case may be, and in sections 66, 80A, 82, 83, 84, 85, 86 and 87: 87 Provided that from the date on which the land is released from management, all the foregoing provisions of this Act shall apply thereto; but subject to the modification that in the case of a tenancy, not being a permanent tenancy, which on that date subsists in the land. xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx" In Keshav Vithal Mahatre vs Arbid Ranchhod Parekh, [1973] Bom.
L.R. LXXXV 694, a learned Single Judge has held that a lease of land granted by a Manager under section 47 of the Bombay Tenancy and Agricultural Lands Act, 1948, comes to an end with the termination of the management of the land by virtue of section 61 of the Act.
If the tenant continues to remain on the land thereafter, he would be cultivating it unlawfully as a trespasser and he cannot, therefore, claim to be a deemed tenant under section 4 of the Act.
This is consistent with the decision in Ghambhir Lal 's case(supra) relied on by the Tribunal.
Thus, Sections 4 and 4B were not applicable during the period from expiry of the lease to the termination of management.
In the result, we find no merit in this appeal and it is dismissed, but without any order as to costs.
V.P.R Appeal dismissed.

summary:
The suit land was taken under Government management as it was lying fallow for two consecutive years.
The Mamlatdar, appointed as a Manager thereof under Section 45, of the Bombay Tenancy and Agricultural Lands Act, 1948, after assuming management, leased out the said land to the appellant for a period of 10 years by an agreement of lease dated 7.12.1951.
The period of lease expired on 6.12.1961.
However, the management of the land was terminated by Government by the Assistant Collector 's order dated 27.7.63 and possession thereof was ordered to be restored to the respondent landlord.
The appellant filed a Civil Suit against the respondent contending that he was paying rent to the Mamlatdar during the period 7.12.1961 to 27.7.1963 and thus continued to be a tenant in respect of the land.
The Civil Judge made a reference to the Mamlatdar, who held that the appellant continued to be tenant.
The respondent 's appeal to the Assistant Collector having failed, a revision application was moved before the Revenue Tribunal wherein the question arose whether the appellant 's tenancy was subsisting on 27.7.1963, the date of termination of the management.
The Tribunal held that the appellant could not continue as tenant on the termination of the management, since the land was taken under the Government management under Section 88(1) of the Act.
82 The High Court in the Application under Article 227 of the Constitution of India having upheld this finding of the Tribunal, the appellant filed Special Leave petition to this Court.
The appellant contended that having continued payment of rent to the Mamlatdar even after expiry of the lease till the termination of management, he continued to be a tenant which the landlord could not avoid on resumption of the land, while the respondent submitted that the appellant could by no means continue to be a tenant after the expiry of lease, and that no fresh lease was granted to him after the management was terminated.
Dismissing the appeal, this Court, HELD: 1.
On the finding of the courts below that after the expiry of the lease, no fresh lease was granted by the Manager, the appellant 's claim to have continued as the tenant even after expiry of the lease on 6.12.1961 and till 27.7.1963, the date of termination, by paying rent for the period to the Mamlatdar would be of no avail, in the absence of fresh lease after expiry of the 10 years lease on 6.12.1961.
This would be so because the Act does not envisage the Government as a landholder but only as Manager.
While delivering back the land into the possession of the landholder, it could not be burdened with any tenancy created or resulting while under management.
Besides, there could be no privacy between the landlord and the erstwhile tenant under Government in the matter of tenancy.
Between the appellant and the respondent landlord, therefore, no question of the former continuing as tenant of the latter could arise after the land was reverted to the landholder.
[86B D] 2.
The appellant could not have been a deemed tenant either under Section 4 or 4B of the Act inasmuch as Section 88 of the Act grants exemption inter alia to lands held on lease from the Government.[86E]


judgement:
N: Criminal Appeal No. 326 of 1979.
From the Judgement and Order dated 4.5.1979 of the Gujarat High Court in Criminal Appeal No. 389 of 1976.
T.U. Mehta, P.H. Parekh and Ms. Geetanjali Mathrani for the Appellant.
D.A. Dave, Anip Sachthey and B.R. Jad for the Respondent.
The following Order of the Court was delivered.
The appellant was charged under Section 302 I.P.C. for causing murder of Gangaben, her brother 's wife , in the early hours of 11th June, 1975 by pouring kerosene on her person and setting her aflame.
The marriage had taken place with Jayantilal, the brother of the appellant, hardly three months before the incident in question.
On the date of the incident the deceased was in the husband 's house when the unfortunate incident took place.
On hearing the cries a neighbor Prahladbhai went to the house and found that the deceased was inside the kitchen.
He pushed opened the door and saw the deceased aflame.
The said Prahladbhai, Bhanubhai, the brother of the appellant, and others took her to Shardaben Hospital for treatment.
They reached the casualty department at about 6.45 a.m. and thereafter she was admitted to the Burns Ward as an indoor patient at about 6.50 a.m.
Within five minutes thereafter PW 5 Dr. Kritikumar Solanki examined her.
While taking her case history he enquired of the injured as to what had happened.
The injured replied "my nanad (sister in law) burnt me".
He prescribed certain medicines, noted the case history and thereafter instructed the nurse.
PW 4 Pankajben, to give the treatment.
Dr. Solanki was incharge of the Burns Ward at the relevant time as PW 2.
Dr. Suresh Ambvani, was absent.
Dr. Ambvani arrived at about 8.30 a.m. in the ward and examined the patient.
After noting her pulse, etc., he asked her how she had received the burns.
She told him that she had been burnt.
On further questioning she stated that her husband 's sister and burnt her.
Dr. Ambvani thereupon asked her the name of her husband 's sister which she disclosed as Padma, the appellant before us.
Dr. Ambvani later made a note about the information divulged by the victim on the police `yadi ' which was received.
92 at about 2.45 p.m. to ascertain if the victim was in a fit condition to make a dying declaration.
After the victim was brought to the hospital a telephone message was sent to Madhupura Police Station.
The investigating officer in the course of investigation recorded the panchnama of the scene of occurrence at about 10.15 a.m.
The panchnama shows that the residence of the victim was on the first floor.
In the outer room pieces of burnt clothes and a peeled skin piece were found.
To the south thereof was the kitchen which was smelling of kerosene.
Pieces of burnt clothes were also lying in that kitchen.
There was a primus with a burner and broken match box soiled with water lying alongside certain garments,namely, two blouses, two petti coats and two half burnt sarees.
There was water on the floor.
Inspector Nagori claims to have interrogated the accused on the same day but arrested her on the next day at about 5.00 p.m.
The investigation thereafter proceeded in usual course and ultimately the appellant came to be charged as stated above.
The prosecution mainly relies on the evidence of the two medical men PW 2 Dr. Ambvani and PW 5 Dr. Solanki.
In addition thereto reliance is placed on the evidence of the two nurses PW 3 Rukshmaniben and PW 4 Pankajben.
The neighbor PW 7 Prahladbhai was also examined but he turned hostile.
On an appreciation of the evidence of these witnesses the learned City Session Judge, Ahmedabad, came to the conclusion that this was a case of homicidal death.
That conclusion has been confirmed by the High Court and has not been contested before us.
With regard to the evidence of the two medical men the trial judge concluded that there was no reason to doubt their testimony since the same was corroborated by the contemporaneous entries made by them in the case paper and the police `yadi '.
Taking note of the evidence of PW 1 Dr. Purohit who performed the post mortem a nd the evidence of PW 5 Dr. Solanki, he came to the conclusion that the victim was in a position to speak.
having regard to the fact that she had 90% of burns, her pulse was 130, respiration was 20 and her general condition was not good, he concluded, relying on the decisions of this Court in Balak Ram & Anr.
vs State of U.P., ; (1975 Crl.
Appeals Reporter 39) and Lallubhai vs State of Gujarat, that the deceased could not be in a fit state of mind when she made the dying declaration.
He thought it unsafe to place implicit reliance on the said evidence particularly because it was the appellant 's contention that she was not on good 93 terms with her brother i.e. the husband of the deceased.
The learned trial Judge also thought that the possibility of torturing could not be ruled out.
In this view, that he took, he gave the benefit of doubt to the appellant and acquitted her.
The State feeling aggrieved, filed an appeal, being Criminal Appeal No. 389 of 1976, which was heard and decided by a Division Bench of the High Court of Gujarat on 4th may 1979.
The High Court on a re appreciation of the prosecution evidence concluded that the view taken by the learned Sessions Judge was thoroughly untenable.
The High Court pointed out that two main reasons which weighed with the learned Sessions Judge for acquitting the appellant were "(1) that the deceased had not the requisite mental condition so as to make acceptable dying declaration: and (ii) that her husband was very much near the cot of the deceased, and hence, the possibility of tutoring the deceased cannot be ruled out".
The High Court closely examined both these reasons and concluded that they could not be supported by the evidence on record.
Being conscious of the fact that while dealing with an acquittal appeal, the High Court should give due weight to the views of the trail court on the question of credibility of the prosecution evidence and should not lightly interfere with its appreciation, it carefully scrutinized the evidence, particularly in regard to the two oral dying declarations, and concluded that there was no possibility of tutoring nor was the deceased mentally unfit to make the dying declarations.
In that view of the matter it reversed the order of acquittal, convicted the appellant of murder and sentenced her to life imprisonment.
Mr. Mehta, the learned counsel for the appellant, has taken us through the entire evidence as well the case law on which the learned trial Judge has based his order of acquittal.
He also invited our attention to a number of decisions of this Court in support of his contention that the High Court ought not to have interfered with the order of acquittal.
According to him the High Court should have given due regard to the appreciation of evidence by the trial court and should not have lightly brushed aside its conclusion on facts.
Counsel submitted that an order of acquittal strengthens the presumption of innocence which should not be dislodged unless the appellate court comes to the conclusion that the trial court has committed a manifest error of judgement resulting in miscarriage of justice.
His submission was that this Court should approach the question by inquiring if the High Court had adhered to the well settled principle that if two views are possible and the trial court accepts one view which the High Court considers less probable, the High Court will not reverse the trial court.
Lastly he 94 contented that although a conviction can be based solely on a dying declaration, courts should be slow to accept a dying declaration as true where it is not recorded in question and answer from and is cryptic in nature, since it is a piece of evidence not tested by cross examination.
The weight to be attached to a dying declaration must largely depend on whether or not the deceased was a fit state of mind to make it and since in the present case the trial court had ruled against the prosecution, the High Court was not justified inreversing the trial court, more so because if was doubtful if she could speak at all having regard to the burns on her lips and tongue.
In support of his submission he cited a host of decisions of this Court but it is unnecessary to refer to them as on principle there can be no dispute with the propositions of law stated by the appellant 's counsel.
We have given given our anxious considerations to these submissions but we are afraid we cannot accede to them because in the facts of the present case we are satisfied that the High Court would have failed in its duty if it had not reversed the decision of the trial court.
The evidence on record shows that the marriage had taken place hardly three months before the incident.
Even on the appellant 's own showing her relations with the deceased were not strained.
The appellant is the only sister of the husband of the deceased.
The word 'nanad ' means the husband 's sister.
Therefore, when the deceased told PW 5 Dr. Solanki that her 'nanad ' had set her on the fire, she meant the appellant and none else.
The evidence of nurse PW 4 Pankajben corroborates the evidence of Dr. Solanki.
Both these witness have deposed that the deceased was in a fit state of mind and was able to speak, elbeit with difficulty.
If there was any doubt on the question of identity it was cleared by PW 2, Dr. Suresh Ambvani to whom the deceased gave the name of her tormentor as padma.
The learned Sessions Judge, also came to the conclusion that notwithstanding the extensive burns the patient was conscious and was able to speak at the time she made the dying declarations.
Her condition soon deteriorated and by 2.45 p.m. she was not in a position to make any statement to the police as recorded by PW 2 Dr. Ambvani on the police 'yadi '.
Dr. Ambvani had,however, recorded what the patient had told him.
Therefore, besides the oral evidence of two medical men there are contemporaneous documents which go to show that the deceased made the statements in question.
Even the learned Sessions Judge did not doubt the correctness of truth of what both the medical men deposed but in his view the deceased was not mentally fit when she named the appellant.
It is well settled by a catena of cases that a dying declaration is 95 admissible in evidence on the principle of necessity and can form the basis for conviction if it is found to be reliable.
While it is in the nature of an exception to the general rule forbidding hearsay evidence, it is admitted on the premises that ordinarily a dying person will not falsely implicate an innocent person in the commission of a serious crime.
It is this premiss which is considered strong enough to set off the need that the maker of the statement should state so on oath and be cross examined by the person who is sought to be implicated.
In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish.
If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court on strict scrutiny finds it to be reliable there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated.
A dying declaration is an independent piece of evidence like any other piece of evidence neither extra strong nor weak and can be acted upon without corroboration if it is found to be otherwise true and reliable.
In the present case there can be no doubt that the deceased had an opportunity to see her tormentor as the incident happened in broad day light.
Since the incident occurred in the early hours of the day there was the possibility of a family member being involved.
There being no dispute that death was homicidal, the question is who did it? As no relative from the side of her parents was present, the possibility of tutoring by them must be ruled out.
The theory that her husband prompted her to name the appellant because his relations with the appellant were strained must be brushed aside as devoid of merit.
Except the appellant 's statement in this behalf, there is no other evidence no such foundation was laid in the cross examination of the investigating officers.
Since it is conceded that the appellant 's relations with the deceased were not bad, it is difficult to understand why the latter should falsely involved her, assuming her husband did prompt her, and allow her real tormentor to escape.
Since the appellant is the only sister of her husband, there remains no doubt about the identity of the 'nanad ' (husband 's sister or sister in law).
Doubt, if any, is removed by PW 2 Dr. Ambvani 's evidence to whom she disclosed the name `Padma '.
Both the medical men were conscious about her condition and, therefore, they would not have attached any importance to her statement if they had any doubt about her mental capacity.
Even Mr. Mehta had to concede that he was not in a position to say that the two medical men were motivated in giving false evidence.
96 Mr. Mehta, however,contented that apart from the fact that the appellant had 90% burns, her pulse rate was high and she had respiratory difficulty, the evidence of PW 5 Dr. Solanki shows that he had prescribed morphine injection and, therefore, by the time PW 2 Dr. Ambvani examined her she could not be in a conscious state to make the dying declaration to him.
In this connection he relied on the statement of PW 4 Pankajben who stated that she had given the treatment prescribed by Dr. Solanki.
Mr. Mehta, however, overlooks PW 4 Pankajben 's categorical statement that she had not given any injection to the victim.
On the other hand the other nurse PW 2 Rukshmaniben deposed that she had given the morphine injection intravenously after Dr. Ambvani left the ward.
Therefore, the submission has no merit.
Mr. Mehta then submitted that having regard to the fact that the victim had 90% burns and her general condition was poor, it would be hazardous to hold that her statements to the two medical men were true.
He also argued that she had burns on her lips and her tongue was swollen making it doubtful if she could talk.
We do not think there is any merit in this submission.
In Suresh vs State of M.P., this Court was required to deal with a more or less similar situation.
In that case the victim had sustained 100% burns of the second degree and her dying declaration was recorded by Dr. Bhargava in the hospital.
Dr. Bhargava had deposed that the victim was in a fit state of health.
The evidence, however,disclosed that while Dr. Bhargave was recording her statement the victim had started going into a coma.
Yet this Court accepted the dying declaration made by the victim to Dr. Bhargava.
Therefore, the mere fact that she had suffered 90% burns and her general condition was poor is no reason to discard the testimony of both of medical men when they say that she was in a fit state of mind and was able to make the dying declaration in question.
Lastly, the contention that since the dying declarations were not in question and answer from they must be discarded altogether is not correct.
Dr. Solanki had merely asked the patient how she was burnt to record the history of her case.
The victim answered by stating that her 'nanad ' (husband ' sister) had burnt her.
Dr. Ambvani too had merely tried to ascertain from the deceased how she was burnt and it was only after she stated that she was burnt by her sister in law that he tried to find the name of her tormentor.
In these circumstances we do not think that the failure on the part of the medical men to record her statement in question and answer from can in any manner affect the probative value to be attached to their evidence.
In Rabi Chandra Padhan & Ors.
vs State of Orissa, at p. 244 this Court 97 merely stated that dying declaration should preferably be in the question and answer form.
That would be so when the statement of the victim is sought to be recorded as a dying declaration.
But in the instant case as seen from the evidence of both the medical men they merely questioned her for the limited purpose of stating they history of the case.
Even otherwise having regard to her condition they could not have questioned her in detail.
In such circumstances the fact of the statements being cryptic is understandable.
See Bankey Lal vs State of U.P. We, therefore, do not think that it would be reasonable to discard the prosecution evidence in regard to the dying declaration on such slender grounds.
In the result we see no merit in this appeal and dismiss the same.
The appellant will submit to her bail within fifteen days from today.
Bail bond will stand canceled.
R.P. Appeal dismissed.

dataset_name: IN-Abs

summary:
The wife of appellant 's brother was found aflame in the early hours of 11.6.1975 in the kitchen of her husband 's house.
She was taken to hospital and admitted to Burns ward where the doctor in charge (PW 5) examined her and while taking her case history enquired of the injured as to what happened, to which she replied, "my nanad (sister in law) burnt me".
She had suffered 90% of burns.
The nurse (PW 4) was instructed to give treatment.
Later another doctor (PW 2) attended on her.
When he asked her as to how she had received the burns, she told him that her husband 's sister had burnt her.
In reply to his further query, she named the appellant as her tormentor.
He made a note of this information by the victim on the police `yadi ' which was sent to him to ascertain if the victim was in a fit condition to make a dying declaration.
As her condition deteriorated, the victim was not in a position to make any statement to the police.
The investigation culminated in the appellant being charged under section 302, I.P.C. for causing the murder of her brother 's wife by pouring kerosene on her person and setting her aflame.
On trial, the Sessions Court held that the deceased had not the requisite mental condition so as to make an acceptable dying declaration, and that her husband was very much near the cot, and hence possibility of tutoring the deceased could not be ruled out.
Giving the benefit of doubt it acquitted the appellant.
89 In the State 's appeal against acquittal, a Division Bench of the High Court re appreciated the prosecution evidence and after closely examining the reasons given by the Sessions court, held them thoroughly untenable and not supported by the evidence on record.
It set aside the order of acquittal, convicted the accused of murder and sentenced her to imprisonment for life.
The appellant accused appealed to this Court challenging in aforesaid conviction and sentence on the ground that the High Court erred in law in holding the view taken by the trial court as less probable.
It was contended that the deceased having suffered 90% of burns and her general condition being poor, she was not in a fit mental state to make the dying declaration; that the dying declarations were not in question and answer form; and that the possibility of tutoring the deceased could not be ruled out.
Dismissing the appeal, this Court, HELD: 1.
A dying declaration is admissible in evidence on the principle of necessity and can form the basis for conviction if it is found to be reliable.
While it is in the nature of an exception to the general rule forbidding hearsay evidence, it is admitted on the premiss that ordinarily a dying person will not falsely implicate an innocent person in the commission of a serious crime.
It is this premiss which is considered strong enough to set off the need that the maker of the statement should state so on oath and be cross examined by the person who is sought to be implicated.
[94H; 95A B] 2.1 Being an independent piece of evidence like any other piece of evidence Neither extra strong nor weak a dying declaration can be acted upon without corroboration if it is found to be otherwise true and reliable, and in order to form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of indentifying the person implicated and is thoroughly reliable and free from blemish.[95d; 95B] 2.2 If it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court on strict scrutiny finds it to be reliable, there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated.
[95C] 3.1 In the instant case, since the incident occurred in the early hours of the day, there was possibility of a family member being involved; and as the incident took place in broad day light, there could be no doubt that the deceased had an opportunity to see her tormentor.
The deceased told the doctor (PW 5) that her `nanad ' had set her on fire.
Since the appellant was the only sister of her husband, there remained no doubt about the identity of the `nanad ' (husband 's sister or sister in law).
Doubt, if any, was removed by another doctor 's evidence (PW 2) to whom she disclosed the name of the appellant.
[95D, 94D, 95F G] 3.2 The mere fact that the deceased had suffered 90% burns and her general condition was poor, was no reason to discard the testimony of both the medical men when they said that she was in a fit state of mind and was able to make the dying declarations in question.
Both the doctors were conscious of her condition and would not have attached any importance to her statement if they had any doubt about her mental capacity.
Besides the oral evidence of the two medical men, there were contemporaneous documents showing that the deceased made the statements in question.
[96E; 95G; 94G] Suresh vs State of M.P., , relied on.
3.3 The doctors (PW 2 and PW 5) merely questioned the victim for the limited purpose of recording the case history.
Having regard to her condition, they could not have questioned her in detail.
In the circumstances, the fact of the statements being cryptic was understandable; and the failure on their part to record her statements in question and answer form could in no manner affect the probative value to be attached to their evidence.
[97A B; 96G] Bankey lal vs State of U.P., , relied on and Rabi Chandra Padhan & Ors.
vs State of Orissa, , held inapplicable.
Being conscious of the fact that while dealing with an acquittal appeal, the court should give due weight to the views of the trial court on the question of credibility of the prosecution evidence and should not lightly interfere with its appreciation, the High Court carefully scrutinised the evidence, particularly in regard to the two oral dying declarations, and rightly concluded that there was no possibility of tutoring nor was the deceased mentally unfit to make the said dying declarations.
[93C E] 91 Balak Ram & Anr.
vs State of U.P., ; and Lallubhai vs State of Gujrat, , referred to.


judgement:
Civil Appeal No. 1309 of 1986.
From the Judgment and Order dated 8.8.1985 of the Punjab and Haryana High Court in Regular Second Appeal No. 307 of 1985.
A.B. Rohtagi, Ranbir Singh Yadav and H.M. Singh for the Appellant.
75 A.G. Prasad and Mahabir Singh for the Respondents.
The Judgment of the Court was delivered by RAY, J.
This appeal on special leave is against the judgment and order passed by the High Court of Punjab & Haryana in Regular Second Appeal No. 307 of 1985 whereby the High Court upheld the order of termination of services of services of the appellant made on November 17, 1980 passed by the respondent No. 2, the Directer of Food and Supplies and Deputy Secretary to Government of Haryana, Chandigarh.
The salient facts that gave rise to the instant appeal are as follows: The appellant we appointed as Sub Inspector, Food and Supplies in the Department of Food and Supplies by the Respondent No.2 by order dated April 13, 1975 on and hoc basis against the ex servicemen quota.
As per the service rules the terms and conditions of the said appointment are as hereunder: "(i) The post is purely temporary.
Your appointment is purely on ad hoc basis and shall not exceed six months.
Your services are liable to be terminated at any time during this period without any notice and without assigning any reason.
Your services are also liable to be terminated at any time without notice on arrival of regular candidates from the Haryana Subordinate Services Selection Board.
" The appellant had been continuing in the said post of Sub Inspector without any break till November 17, 1980 i.e. the date of termination of his services.
The appellant, however, was served with an order of suspension made by the Respondent No. 2 on April 15, 1980 in view of the criminal proceedings pending against the appellant u/s 420 of the Indian Penal Code during the pendency of which the order of termination was made on November 17, 1980.
The said criminal proceeding being Criminal Case No. 1413 of 1981 was decided on October 21, 1981 wherein he has been acquitted of the said charge.
The Additional Chief Judicial Magistrate, Narnual had found that: ". .
Babu Ram accused was not present at the spot and he had no role to play in the distribution of the cement.
The Appellant could not point out even a single factor from the file by which the participation of this accused can be said to 76 have been proved by the prosecution.
As such, accused, Babu Ram cannot be held guilty of the offence charged and he is acquitted of the same.
" The plaintiff appellant immediately on receiving the order of termination after giving the requisite notice brought an action being Civil Suit No.453 of 1981 in the court of Senior Sub Judge, Narnual praying for a declaration to the effect that the order of suspension dated 15.4.1980 and the order of termination dated 17.11.1980 passed by the respondent No.2 were illegal, wrong, arbitrary and without jurisdiction and the appellant is entitled to reinstatement with effect from the date of his suspension and so further entitled to be regularised and to all the benefits of the service.
It had been stated in the pleadings of the appellant that a notification dated 1st January, 1980 issued by the Chief Secretary to the Government of Haryana addressed to all the Head of the Departments vide memo No. G.S.R./Const./ article 309/80 stating that such ad hoc employees who hold the class III posts for a minimum period of two years on 31.12.1979 are to be regularised if they fulfill the following conditions: (a) Only such ad hoc employees as have completed a minimum of two years service on 31.12.1979 should be made regular.
However, break in service rendered on ad hoc basis upto a period of one month may be condoned but break accruing because the concerned employee had left service of his own volition or where the ad hoc appointment was against a post/vacancy for which no regular recruitment was required/intended to be made, i.e. leave arrangements or filling up of other short time vacancies, may not be condoned.
(b) Only such ad hoc employees as have been recruited through the Employment Exchange should be made regular.
(c) The work and conduct of the ad hoc employees proposed to be regularised should be of an overall good category.
The plaintiff appellant pleaded that he having put in the minimum period of two years of service on 31.12.1979 became entitled to have his service regularised in view of the said Notification.
He further pleaded that the alleged order of termination was in fact an order of dismissal and so it amounts to punishment and the same being penal in nature is null and void because it contravened the provisions of Constitution of India.
The Senior Sub Judge, Narnaul after hearing the 77 parties held that as the petitioner appellant was acquitted of the said offence, the authorities should have revoked the suspension order and have paid the pay for the period for which the appellant remained under suspension.
The Court further held that the appellant will be entitled to all the benefits of his service.
Against this judgement and decree, an appeal was filed being C.A. No. 129 of 1983 in the Court of Addl.
District Judge, Narnaul by the State.
The Addl.
District Judge by his judgement dated 18.10.1984 affirmed the judgement and decree of the learned Sub Judge holding that no enquiry was conducted before termination of the service of the appellant.
The Addl.
District Judge also held that: ". the plaintiff had completed two years of service and according to executive instructions his services were bound to be regularised.
Reasonable opportunity to defend was not given to the plaintiff before termination of his services.
Order of termination of services was merely a camouflage for an order of dismissal for misconduct.
He was still under suspension when he was terminated.
All these facts lead only to one conclusion that the impugned order of termination of the services of the plaintiff is bad in law . " Against this judgement and order R.S.A. No. 307 of 1985 was filed by the said respondents in the High Court of Punjab and Haryana at Chandigarh.
The High Curt allowed the appeal on setting aside the judgement and decree of the courts below holding that the appellant was not entitled to be regularised automatically unless he fulfilled all the conditions given in the Notification.
It was further held that when the case of the appellant came up for regularisation the Department found that the appellant 's work and conduct was not of the required standard so as to justify his regularisation and consequently his services were not regularised.
It was further held that since the appellant was ad hoc employee therefore, the Department instead of waiting for the result of the criminal proceedings thought it fit under the circumstances to dispense with the services of the appellant in accordance with the terms of his appointment.
This judgement is under challenge in this appeal.
The pivotal question that poses itself for consideration before this Court is firstly whether during the period of suspension in view of the criminal proceeding which ultimately ended with the acquittal, an order of termi 78 nation can be made against the appellant by the respondent No.2 terminating his ad hoc services without reinstating him as he was acquitted from the charge u/s 420 I.P.C. and secondly whether the impugned order of termination from his service can be made straight away without reinstating him in the service after he earned acquittal in the criminal case and thereafter without initiating any proceeding for termination of his service as the impugned order of termination was of penal nature having civil consequences.
It has also to be considered in this connection that the respondent No.2 has also not considered the case of the appellant for regularisation of his services even though he had completed two years of service as on 31.12.1979 fulfilling all the requisite terms and conditions mentioned in the said Notification.
The order of suspension made by the respondent No.2 is admittedly on the sole ground that criminal proceeding was pending against the appellant.
The order of termination had been made illegally during the pendency of the order of suspension and also during the pendency of the criminal proceeding which ultimately ended with the acquittal of the appellant.
It is the settled position in law that the appellant who was suspended on the ground of pendency of criminal proceeding against him, on being acquitted of the criminal charge is entitled to be reinstated in service.
His acquittal from the criminal charge does not debar the disciplinary authorities to initiate disciplinary proceedings and after giving an opportunity of hearing to the appellant pass an order of termination on the basis of the terms and conditions of the order of his appointment.
Furthermore as the appellant whose name was sent through Employment Exchange and who was appointed and has completed two years service on 31.12.1979 is entitled to be considered for regularisation in the post Sub Inspector, Food and Supplies.
The High Court had observed that: ". .
In these circumstances, when his case came up for regularisation, the Department found that the plaintiff 's work and conduct was not of the required standard so as to justify his regularisation and consequently his services were not regularised.
" This finding of the High Court is totally baseless in as much as the counsel for the said respondent could not produce any order or documentary evidence to show that the respondents considered the case of the appellant for the purpose of regularisation in accordance with the Notification dated 1st January, 1980.
As such the finding of the High Court is wholly bad and illegal.
The other finding of the High Court that the acquittal of the appellant by the criminal court was of no consequence as his services were terminated before the order of acquittal was made because the appellant was no more in service is also 79 against the well settled legal position.
It has also to be borne in mind that under the Notification dated 1st January, 1980 issued by the Government, the appellant having fulfilled the condition of two years of service is entitled to be considered by the Government for regularisation of his service in accordance with the said executive instructions issued by the Government.
As we have said herein before that there is nothing on record to show that the Government has ever considered the case of the appellant for regularisation of his service in the light of the instructions contained in the said Notification dated 1st January, 1980, the impugned order of termination of service made by the Government is illegal and arbitrary and so it is liable to be quashed and set aside.
Moreover, from the sequences of facts of his case the inference is irresistible that the impugned order of termination of the service of the appellant is of penal nature having civil consequence.
It is well settled by several decisions of this Court that though the order is innocuous on the face of it still then the Court that though the order is innocuous on the face of it still then the Court if necessary, for the ends of fair play and justice can lift the veil and find out the real nature of the order and if it is found that the impugned order is penal in nature even though it is couched with the order of termination in accordance with the terms and conditions of the order of appointment, the order will be set aside.
Reference may be made in this connection to the decision of this Court in Smt.
Rajinder Kaur vs State of Punjab and Another, in which one of us is a party.
It has been held that: "The impugned order of discharge though stated to be made in accordance with the provisions of Rule 12.21 of the Punjab Police Rules, 1934, was really made on the basis of the misconduct as found on enquiry into the allegation behind her back.
Though couched in innocuous terms, the order was merely a camouflage for an order of dismissal from service on the ground of misconduct.
This order had been made without serving the appellant any charge sheet, without asking for any explanation from her and without giving any opportunity to show cause against the purported order f dismissal from service and without giving any opportunity to show cause against the purported order of dismissal from service and without giving any opportunity to cross examine the witness examined.
The order was thus, made in total contravention of the provisions of Article 311(2) and was therefore, liable to be quashed and set aside.
" This case relied on the observations made by this Court in the case of Anoop Jaiswal vs Government of India, ; 80 wherein it has been observed that: ".
Where the form of order is merely a camouflage for an order of dismissal for misconduct it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order.
If the court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee".
Similar observation has been made by this Court in the case of Hardeep Singh vs State of Haryana and Ors.
, It has been held in this case as under: "In the instant case, it is clear and evident from the averments made in paragraph 3, sub para (i) to (iii) and paragraph (v) of the counter affidavit that the impugned order of removal/dismissal from service was in substance and in effect an order made by way of punishment after considering the service conduct of petitioner.
There is no doubt the impugned order casts a stigma on the service career of the petitioner and the order being made by way of punishment, the petitioner is entitled to the protection afforded by the provisions of Article 311(2) of the Constitution as well as by the provisions of Rule 16.24 (Ix)(b) of the Punjab Police Rules, 1984. " In the premises aforesaid, we are constrained to hold that the judgement rendered by the High Court is wholly illegal and unwarranted and as such we quash and set aside the same and affirm the judgement of the courts below.
We direct that the appellant be reinstated in the service immediately and be paid all his emoluments i.e. pay and allowances from the date of the order of his suspension i.e. 15.4.1980 till the date of reinstatement into service minus the suspension allowance that had been received by the appellant during the period of his suspension (if any).
The respondents are at liberty to consider the case of the appellant for regularisation in the light of the norms laid down in the executive instructions issued on 1st January,1980 by Notification No. G.S.R./Const./Art.
309/80.
The appeal is allowed.
There will be no order as to costs in the facts the circumstances of the case.
Y.Lal Appeal allowed.

summary:
The appellant was appointed an Sub Inspector, food & Supplies by respondent No. 2 on 13.4.1975 on ad hoc basis against service man quota; the post being purely temporary liable to be terminated without notice and without assigning any reasons or on arrival of a regular candidate.
The appellant continued in service on that post till November 17, 1980, when his services were terminated.
Prior to the termination of his services he was placed under suspension on April 15, 1980 in view of the criminal proceedings under Section 420, IPC pending against him and before the culmination of criminal proceedings, his services were terminated by order dated November 17, 1980, as aforesaid.
Criminal case against the appellant was decided on October 21, 1981 wherein he was acquitted of the charge.
The appellant on receiving the order of termination of his services filed Civil Suit 453 of 1981 in the court of Senior Sub Judge, narnaul praying for a declaration that the orders of suspension as also termination were illegal, wrong, arbitrary and without jurisdiction and that the appellant was entitled to reinstatement and regularisation of his service under the Government notification dated 1.1.1980 issued by the Chief Secretary to the Government of Haryana authorising regularisation of such ad hoc employees who held the Class III posts for a minimum period of two years.
According to the appellant his case was covered by the said notification and as such he was entitled to all the benefits of service.
The Senior Sub Judge held that as the appellant was acquitted of the offence, the authorities should have revoked the suspension order and have paid the pay for the period for which the appellant remained under suspension and thus allowed to the appellant all the benefits.
An appeal was taken by the respondents to the Addl.
District Judge who affirmed the order of the trial court holding that no enquiry was conducted before termination of the service of the appellant.
Against the order of the Addl.
District Judge, the respondents preferred an appeal 74 before the High Court and the High Court allowed the appeal holding that the appellant was not entitled to be regularised automatically unless he fulfilled all the conditions given in the notification.
It was also held that the case of the appellant was considered for regularisation by the Department but the same was not found suitable; the services of the appellant were terminated in accordance with the terms of his appointment.
The appellant has filed this appeal against that order in this court after obtaining special leave.
Allowing the appeal, this Court, HELD: The order of suspension made by the respondent No. 2 is admittedly on the sole ground that criminal proceeding was pending against the appellant.
The order of termination had been made illegally during the pendency of the order of suspension and also during the pendency of the criminal proceeding which ultimately ended with the acquittal of the appellant.
The settle position in law is that the appellant who was suspended on the ground of pendency of criminal proceeding against him, on being acquitted of the criminal charge is entitled to be reinstated in service.
His acquittal from the criminal charge does not debar the disciplinary authorities to initiate disciplinary proceedings and after giving an opportunity of hearing to the appellant pass an order of termination on the basis of the terms and conditions of the order of his appointment.
[78C E] As the appellant whose name was sent through Employment Exchange and who was appointed and has completed two years service on 31.12.1979, he is entitled to be considered for regularisation in the post of Sub Inspector, Food and Supplies.
[78E] Smt.
Rajinder Kaur vs State of Punjab and Anr.
, ; ; Anoop Jaiswal vs Government of India, ; ; Hardeep Singh vs State of Haryana and Ors.,[1987] 4 S.L.R. 576, referred to.


judgement:
ivil Appeal No. 5020 of 1989.
From the Judgment and Order dated 7.12.1989 of the Bombay High Court in W.P. No. 5021 of 1989.
Dr. Y.S. Chitale, V.N. Ganpule, B. Rastogi, Ms. Suman and Ms. Punam Kumari for the Appellant.
V.M. Tarkunde, Ejaz Iqbal, H.S. Anand, R.F. Nariman and H.D. Adhar for the Respondents.
54 The Judgment of the Court was delivered by AHMADI, J.
This is a tenant 's appeal by special leave directed against the judgment of the High Court of Maharashtra at Bombay whereby it confirmed the eviction order passed by the 6th Additional District Judge, Pune, in Civil Appeal No. 662 of 1988 in reversal of the order of dismissal of the suit passed by the Learned Additional Judge of the Court of Small Causes, Pune, in Civil Suit No. 348/85 on 30th April, 1988.
The brief facts giving rise to this appeal are as under: On 5th February, 1976 the appellant executed a lease agreement in respect of a part of the ground floor of property bearing City Survey No. 1205/2/9 situate at Shivaji nagar, Pune city, more particularly described in paragraph 1 of the said agreement.
The said premises were taken on rent for the purposes of restaurant business on monthly rental basis.
By clause 3 of the agreement the appellant undertook to pay a total rent of Rs. 1,000 per month for the demised premises (Rs.900 for the hotel portion and Rs. 100 for the garage); the said rent being payable every month in advance.
Clause 5 of the agreement prohibited sub letting of the premises or parting with the possession thereof in any other manner.
As the appellant committed a default in the payment of rent from June, 1983 to December, 1984 in respect of hotel portion and from November, 1979 to December, 1984 in respect of the garage, the first respondent despatched a notice dated 31st December, 1984 terminating the appellant 's tenancy as required by Section 106 of the Transfer of Property Act.
The appellant failed to respond to the said notice and neglected to pay the amount of arrears of rent claimed therein within one month from the date of receipt of the notice.
Consequently, the first respondent filed the suit which has given rise to this appeal on 26th February, 1985, being Civil Suit No. 348 of 1985, seeking eviction on four grounds, namely, (i) the tenant was in arrears of rent for more than six months and had failed and neglected to pay the amount due within one month from the date of receipt of the eviction notice, (ii) the tenant had raised a permanent structure in the suit premises in breach of section 13(1)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter called 'the Act '), (iii) the tenant was guilty of causing nuisance and annoyance to the neighbors and (iv) the tenant had sub let the premises to second respondent without his consent.
The suit was contested by the appellant tenant by his written statement Exh. 25 and the supplementary written statements Exhs.
56 and 60 filed after the amendments in the plaint.
The second respon 55 dent, the alleged sub tenant, adopted the written statement of the appellant by his purshis Exh. 30.
During the pendenacy of the suit Section 12(3) of the Act was amended by Section 25 of the Amendment Act 18 of 1987 whereby clauses (a) and (b) of sub section 3 of section 12 were deleted and instead a new sub section 3 was substituted which restricted the court 's right to pass a decree for eviction on the ground of arrears o standard rent and permitted increases, if on the first date of the hearing of the suit or on such other date as the Court may fix, the tenant paid or tendered in court the standard rent and permitted increase then due together with simple interest on the amount of arrears at the rate of 9% per annum and thereafter continued to pay or tender in court regularly such standard rent and permitted increases till the final decision of the suit and also paid the cost of the suit as directed by the court.
The appellant contended that the said amendment had retrospective effect and he was entitled to the benefit thereof.
In the alternative he also contended that he had paid the rent to the first respondent but the latter had failed to issue rent receipts.
He also questioned the validity of the notice terminating his tenancy.
He denied the allegation that he had sub let the premises or had aparted with the possession thereof in favour of the second respondent or that he was guilty of causing nuisance and annoyance to the neighbours.
The allegation that he had raised a structure of a permanent nature in the hotel premises without the permission of first respondent was also disputed.
He, therefore, contended that the suit was liable to fail.
The learned Additional Small Causes Judge, Pune raised issues at Exh. 36 and came to the conclusion that the agreed rent for the hotel and the garage was Rs. 900 per month and in addition thereto the tenant had agreed to pay Rs. 120 per month for education cess and other taxes.
He also concluded that the tenant had failed to pay the rent in respect of the garage from November, 1979 and in respect of hotel from June, 1983.
Since the tenant had failed to pay or deposit the arrears claimed by the eviction notice dated 31.12.1984 within one month from the receipt thereof, the Court held he was liable to be evicted under section 12(3)(a) of the Act but in view of the substituted Section 12(3), he was entitled to protection as he had paid the entire arrears together with interest and costs before the passing of the decree.
He also held that there was no reliable evidence to show that the tenant had sub let the premises or had made any alteration of a permanent nature without the consent of the first respondent.
The allegation of nuisance and annoyance was held not proved on facts and was even otherwise found to relate to a post suit incident of 1986.
on 56 these findings the learned Trial Judge dismissed the suit with no order as to costs.
The first respondent, felling aggrieved by the order of dismissal of his suit, preferred an appeal being Civil Appeal No. 662/88.
The appellate court reversed the decree of the trial court holding that the rent was payable by the month and there being no dispute regarding standard rent and permitted increases and the tenant having failed to pay the arrears within one month from the date of receipt of a valid eviction notice dated 31st December, 1984, he was liable to be evicted under section 12(3)(a) of the Act since the amended section 12(3) introduced by Amending Act 18 of 1987 was prospective in nature.
It also took the view that since the premises was sub let by the appellant to the second respondent on a rental of Rs. 2,000 per month, the former was guilty of profiteering.
So far as the other two contentions regarding raising of a permanent structure and allegation of nuisance and annoyance were concerned, the appellate court concurred with the findings recorded by the trial court.
In this view that the appellate court took it allowed the appeal and ordered both the tenant and sub tenant to deliver vacant possession of the demised premises within two months from the date of the order with costs throughout.
The appellant tenant, feeling aggrieved by the order of eviction passed by the learned 6th Additional District Judge, Pune, preferred a writ petition No. 5021 of 1989 to the High Court.
The writ petition was rejected at the admission stage by a short speaking order.
The High Court observed that the eviction notice was legal and proper and the lower appellate court was right in concluding that the appellant had sub let the premises to the second respondent as alleged.
The request for extention of time to vacate was rejected as the tenant was unwilling to file an undertaking in the usual form.
Feeling aggrieved by the said order the tenant has preferred the present appeal after obtaining special leave.
The standard rent in respect of the demised premises has been found by all the three courts to be Rs. 900 per month (Rs. 750 in respect of the hotel premises and Rs. 150 in respect of the garage).
In addition thereto the tenant had undertaken to pay a lump sum of Rs. 120 per month by way of education cess and other taxes in respect of the demised premises.
Thus the tenant was required to pay a consolidated sum of Rs. 1020 per months as rent to the first respondent.
By 31st December, 1984 the appellant tenant had failed to pay the rent in respect of the hotel premises from 1st June, 1983 and in respect of the 57 garage area from 1st November, 1979; thus the arrears of rent in respect of hotel premises came to Rs.16,530 and in respect of the garage premises Rs.9,300 aggregating to Rs.25,830.
The first respondent, therefore, served the appellant with a notice terminating the tenancy by the end of 31st January, 1985 and called upon the appellant to pay the arrears of rent and vacate and handover peaceful possession of the demised premises by that date.
Even after the receipt of this notice, the appellant neither paid the amount due within one month of the receipt of the notice nor filed any application for fixation of standard rent and/or the permitted increases under section 11 of the Act.
On the failure of the appellant to comply with the requirement of the eviction notice, the first respondent filed a suit for eviction on 26th February, 1985 on the grounds stated earlier.
In the said eviction suit the first respondent claimed the arrears of rent upto the end of December, 1984 as set out in the eviction notice and damages of Rs. 1020 for month of January, 1985 together with Rs. 250 by way of notice charges.
The total claim made came to Rs.27,100.
The appellate Court and the High Court came to the conclusion that the newly substituted section 12(3) had no application and the case was governed by section 12(3)(a) as it stood before the amendment.
Dr. Chattel, the learned counsel for the appellant frankly conceded that in view of the decision of this Court in Arjun Khiamal Makhijani vs Jamnadas C. Tuliani & Ors., , the case would be governed by section 12(3) as it stood before its amendment by Amending Act 18 of 1987, since the substituted section 12(3) was found to be prospective in nature.
This Court in paragraph 14 of the judgment at page 624 repelled the submission that it was retrospective in operation in the following words: "In our opinion, the tenants are not entitled even to the benefit of the amended sub section (3) of Section 12 of the Act inasmuch as on a plain reading of the sub section it is not possible to give it a retrospective operation." Dr. Chitale was, therefore, justified in submitting that the decision of this case must rest on the question whether it attracted section 12(3)(a) or section 12(3)(b) as it stood prior to the amendment.
According to Dr. Chitale since the tenant was obliged to pay the education cess and other taxes by way of permitted increases which were payable at the end of the year, the case would not attract section 12(3)(a) as a part of the rent became payable annually and not monthly.
He further contended that there was nothing on the record to show that the landlord 58 had paid the amount of education cess and other taxes and unless payment of the taxes to the local authority was established the land lord had no right to claim the same from the tenant.
According to him, the landlord 's right to recover the taxes arises not at the end of the financial year but on the date on which he makes the payment to the local authority.
Dr. Chitale, therefore, submitted that the case attracted section 12(3)(b) and when the tenant deposited a sum of Rs.37,740 on 18th January, 1986 before the issues were settled on 13th February, 1986 he could be said to have made the full payment of the rent then due and therefore the courts below were not justified in granting an eviction decree for arrears of rent under section 12(3)(a) of the Act.
In support of his contention he invited our attention to four decisions of the Gujarat High Court, namely,Pancha Mohanlal Ishwardas vs Maheshwari Mills Ltd., ; Prakash Surya vs Rasiklal Ishverlal Mehta, ; Vanlila Vadilal Shah vs
Mahendrakumar J. Shah, AIR 1975 Guj. 163 and Vishwambar Hemandas vs Narendra Jethalal Gajjar, AIR 1986 Guj. 153.
He also placed reliance o a Bombay High Court decision in Muktabai Gangadas Kadam vs Muktabai Laxman Palwankar, and the decision of this Court in Bombay Municipal Corporation vs Life Insurance Corporation Of India, Bombay; , On the question of sub letting he stated that the Trial Court had rightly pointed out that the evidence falls far short of proof of sub tenancy and the Appellate Court as well as the High Court were in error in reversing that view of the Trial Court.
Mr. Tarkunde, the learned Advocate for the landlord, on the other hand submitted that once the four ingredients of section 12(3)(a) were shown to be satisfied, the Court had no alternative but to decree the suit.
According to him, the standard rent in respect of the demised premises was shown to be Rs. 900 per month and in addition thereto the tenant had agreed to pay a quantified sum of Rs. 120 per month by way of education cess and other taxes.
It was proved as a fact that the tenant had failed to pay the rent in respect of the garage from 1st November, 1979 and the rent in respect of the hotel from 1st June,1983.
The tenant had also failed to pay the tax amount at the rate of Rs. 120 per month from 1st June, 1983.
Since there was no dispute in regard to standard rent or permitted increases in this case, the tenant was under an obligation to pay the entire amount due from him by way of rent and taxes within one month of the receipt of the eviction notice dated 31st December, 1984.
Under section 12(1) of the Act a landlord is not entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of standard 59 rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, insofar as they are consistent with the provisions of the Act.
Section 12(2) places a restriction on the landlord 's right to sue his tenant for recovery of possession on the ground of non payment of the standard rent and/or permitted increases due from him.
According to that section no suit for recovery of possession can be instituted on the aforesaid ground until the expiration of one month next after notice in writing of the demand of the standard rent and/or permitted increases has been served upon the tenant in the manner set out in section 106 of the Transfer of Property Act.
To comply with this requirement the landlord had issued a notice on 31st December, 1984 calling upon the tenant to pay the standard rent which was in arrears along with the quantified tax amount in arrears upto that date as detailed in the notice.
The tenancy was terminated w.e.f. 31st January, 1985.
Admittedly, the tenant did not respond to this notice nor did he pay or deposit the amount of arrears as claimed in the notice within one month of the receipt thereof.
He also did not file any application for fixation of standard rent and/or permitted increases under section 11 of the Act.
There was, therefore, no question of the Court specifying the amount of interim rent or permitted increases under sub section (3) of Section 11 during the pendency of such an application.
Mr. Tarkunde, therefore, submitted that the case was clearly governed by the provisions of section 12(3)(a) since indisputably the rent inclusive of the quantified tax amount was payable by the month; there was no dispute as regards the standard rent/permitted increases: the tenant was found to be in arrears of rent for more than six months and he had failed to pay or deposit the rent within one month after the receipt of the notice under section 12(2) of the Act.
According to Mr. Tarkunde the submission that because the education cess was payable by the year, a part of the rent was not payable by the month and therefore section 12(3)(a) had no application is clearly misconceived for the simple reason that in the present case the landlord as well as the tenant had by agreement quantified the amount of education cess and other taxes at Rs.120 per month and had not left the determination of the amount to fluctuations in the tax amount from time to time.
Once the quantum in respect of the tax liability is determined by agreement between the parties, the same forms part of the rent and it is not open to contend that notwithstanding the agreement the tax amount remains payable by the year and the tenant is obliged to pay the same only after the landlord has paid the taxes to the local authority.
He, therefore, contended that the case law on which Dr. Chitale had placed reliance can have no application to the special facts and circumstances of the present case.
60 On the second question regarding sub letting Mr. Tarkunde submitted that this Court should not interfere with a finding of fact recorded by the Appellate Court and affirmed by the High Court since it is nobody 's case that the finding is perverse and not based on evidence.
In this connection, he took us through the relevant part of the pleadings and the evidence to support his contention that the conclusion reached by the Appellate Court and the High Court was based on evidence and was not perverse or against the weight of evidence.
He submitted that even if two views are possible this Court in exercise of its powers under Article 136 of the Constitution should refrain from disturbing a possible and plausible view.
We have given our anxious consideration to the rival views propounded by the learned counsel for the appellant tenant as well as the respondent landlord.
On a consideration of the submissions made at the bar and having regard to the provisions of law we are inclined to think that the view taken by the Appellate Court and the High Court does not demand interference.
There is no dispute regarding the standard rent of the demised premises.
under clause 3 of the lease agreement the rent was fixed at Rs. 1,000 per month but subsequently it seems to have been revised by consent of parties to Rs.1,020 per month (Rs. 900 for the demised premises and Rs.120 for education cess and taxes).
The rent was payable 'every month regularly in advance ' under clause 3 of the agreement.
Clause 2 of the agreement states that the premises have been hired for restaurant business 'on monthly rental basis.
It is , therefore, clear from the terms of the lease agreement that the parties intended the tenancy to be a monthly tenancy.
The two clauses of section 12(3) as they stood before the Amendment Act 18 of 1987 provided as under: "12(3)(a).
Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period or one month after notice referred to in sub section (2), the Court shall pass a decree for eviction in any such suit for recovery of possession.
(b) In any other case no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the 61 tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court.
" Explanation I states that if there is any dispute regarding standard rent or permitted increases the tenant shall be deemed to be ready and willing to pay if, before the expiry of the period of one month after notice referred to in sub section (2), he makes an application to the Court under sub section (3) of section 11 and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court.
Mr. Tarkunde, therefore, argued that even if the case is covered by section 12(3)(b) since the tenant had failed to pay or deposit the full amount due to the landlord as claimed in the eviction notice by the first date of hearing of the suit, i.e. 13th February, 1986, and had also failed to make an application under section 11(3) of the Act, the tenant was not entitled to the protection of that provision also.
Mr. Tarkunde further submitted that the tenant was not regular in the payment of rent and permitted increases for the subsequent period also and there were long intervals between two payments made during the pendency of the litigation.
He, therefore, submitted that even if section 12(3)(b) was invoked the tenant had failed to comply with the requirement of the provision and was, therefore, not entitled to its protection.
Since we are of the opinion that the case is covered by section 12(3)(a) we do not consider it necessary to examine this submission based on the true interpretation of section 12(3)(b) of the Act.
The only submission which Dr. Chitale made for taking the case out of the purview of section 12(3)(a) was that the entire rent was not payable by the month which was the first condition to be satisfied for invoking the said provision.
According to him, since the tenant was bound to pay education cess and other taxes in respect of the demised premises which were payable from year to year, a part of the rent was not payable by the month and therefore the first condition of section 12(3)(a) was not satisfied.
Hence, submitted Dr. Chitale, the case fell within the phrase 'in any other case ', by which clause (b) of section 12(3) opens.
Before we answer the submission of Dr. Chitale it may be advantageous to refer to the relevant provisions of the Maharashtra Education (Cess) Act (Maharashta Act XXVII of 1962).
Section 4(a) of the said Act provides for the levy and collection of tax (cess) on 62 lands and buildings at the rates specified in Schedule A on the annual letting value of such lands or buildings.
The primary responsibility to pay this tax is cast by section 8 on the owner of the land or building irrespective of whether or not he is in actual occupation thereof.
Section 13 next provides that on payment of the amount of the tax in respect of such land or building the owner shall be entitled to receive that amount from the person in actual occupation of such land or building during the period for which the tax was paid.
Under section 15 any person entitled to receive any sum under section 13 is conferred for the recovery thereof the same rights and remedies as if such sum were rent payable to him by the person from whom he is entitled to receive the same.
It thus seems clear that education cess is a tax and the owner is primarily responsible to pay the same to the local authority and on such payment a right is conferred on him to recover the same from the actual occupant in addition to the standard rent in respect of the demised premises.
Sub section (3) of section 13 in terms states that the recovery of any amount of tax from an occupier under this provision shall not be deemed to be an increase for the purposes of section 7 of the Act.
It is, therefore, obvious that the landlord has a statutory right to recover the amount of education cess paid by him in respect of the demised premises from the tenant occupant and such recovery shall not be an unlawful increase under of section 7 of the Act but would squarely fall within the expression 'permitted increases ' as defined by section 5(7) of the Act.
This statutory right to recover the amount of education cess in respect of the demised premises from the occupant tenant can be quantified by agreement of parties so long as the amount quantified does not exceed the total amount actually paid by the owner by way of education cess.
In the present case, it is nobody 's contention that the amount of Rs. 120 per month payable by way of education cess and other taxes was in excess of the amount actually payable under the relevant statues to the local authority.
The Gujarat High Court has taken a consistent view that where the tenant is obliged under the terms of the tenancy or by virtue of the statute to pay the tax dues to the landlord, since such taxes which form part of the rent are payable annually the case ceases to the governed by section 12(3)(a) and falls within the purview of section 12(3)(b) of the Act.
In Maheshwari Mills Ltd., under the terms of the tenancy the tenant was obliged to pay the municipal taxes and property taxes in respect of the demised premises.
The Court took the view that such payment was by way of rent and since the municipal taxes and property taxes were payable on year to year basis, a part of the rent was admittedly not payable by the month and, therefore, section 12(3)(a) was not attracted.
In Prakash Surya the tenant had agreed to pay the municipal tax 63 and education cess.
The amount payable towards these taxes constituted rent and since the same was payable at the end of the year the Court held that the rent had ceased to be payable by the month and hence section 12(3)(a) had no application.
The same view was reiterated in Vanlila 's case where education cess was payable by the tenant by virtue of section 21 of the Gujarat Education Cess Act, 1962.
Since it constituted a part of the rent, to be precise permitted increase under section 5(7) of the Act, it was held that it took the case outside the scope of section 12(3)(a) of the Act.
In the case of Vishwambhar Hemendas also since the rent was inclusive of taxes the Court held that the case was governed by section 12(3)(b) of the Rent Act.
The Bombay High Court has expressed the same view in Muktabai 's case.
This Court in the Bombay Municipal Corporation 's case held that while section 7 of the Act prohibits increase above the standard rent it does not prohibit the recovery of increase to which a landlord is entitled under the other provisions of the said statue, namely, increase by way of 'permitted increases '.
Education cess is specifically recoverable as rent by virtue of section 13 and as sub section (3) thereof provides that it shall not be treated as increase in rent under section 7 of the Act, there can be no doubt that such an increase falls with the definition of 'permitted increases under section 5(7) of the Act.
It, therefore, seems to be well settled that education cess is a part of 'rent ' within the meaning of the Act and when the same is claimed in addition to the contractual or standard rent in respect of the demised premises it constitutes a permitted increase within the meaning of section 5(7) of the Act and being payable on a year to year basis, the rent ceases to be payable by the month within the meaning of section 12(3)(a) of the Act.
But the question still survives whether the parties can be agreement quantity the said amount and make it payable on a month to month basis provided of course the said amount does not exceed the tax liability of the landlord; if it exceeds that liability it would infringe section 7 of the Act and the excess would not be allowed as permitted increase within the meaning of section 5(7) of the Act.
A right to recover a certain tax amount from the tenant occupant under the provisions of a statute can be waived by the owner or quantified by agreement at a figure not exceeding the total liability under the statue.
If by agreement the amount is so quantified and is made payable by the month not withstanding the owner 's liability to pay the same annually to the local authority, the question is whether is such circumstances the 'rent ' can be said to be payable by the month within the meaning of section 12(3)(a) of the Act? We see no reason why we should take the view that even where the parties mutually agree and quantify the tax amount payable by the tenant to the landlord on monthly basis, the 64 rent should not be taken to be payable by the month within the meaning of section 12(3)(a) of the Act.
A statutory right to recover the tax amount by way of reimbursement can be waived or limited by the holder of such right or the recovery can be regulated in the manner mutually arranged or agreed upon by the concerned parties so also as it is not in violation of statute.
If for convenience and to facilitate payment, the parties by mutual consent work out an arrangement for the enforcement of the owner 's statutory right to recover the tax amount and for discharging the tenant occupant 's statutory obligation to reimburse the owner, we see no reason for refusing to uphold such a contract and if thereunder the parties have agreed to the tenant occupant discharging his liability by a fixed monthly payment not exceeding the tax liability.
The said monthly payment would constitute 'rent ' payable by the month within the meaning of section 12(3) (a) of the Act.
The view expressed by the Gujarat High Court in Vishwambar Hemandas does not, with respect, state the law correctly if it holds that even in cases where the entire tax liability is on the landlord and the tenant had to pay a gross rent of Rs. 19.50 p.m .
the mere recital in the lease that the rent is inclusive of taxes the case outside the purview of section 12(3)(a) of the Act.
We are, therefore, in respectful agreement with the view taken by the Appellate Court and the High Court in that behalf.
We, therefore, hold that as the tenant had failed to comply with the requirement of section 12(3)(a) to seek protection from eviction, the Courts below were justified in ordering his eviction.
In the view that we take on the first point discussed above, it is unnecessary for us to examine the second point regarding sub tenancy.
In the result we see no merit in this appeal and dismiss the same with costs.
We, however, grant time upto 31st December, 1991 to the tenant to vacate.
R.S.S. Appeal dismissed.

summary:
The appellant tenant executed a lease agreement of the demised premises on a standard rent of Rs. 900 per month.
In addition thereto, the tenant also undertook to pay a lump sum of Rs. 120 per month by way of education cess and other daxes in respect of the premises.
The 1st respondent filed a suit for eviction of the tenant inter alia on the ground that he was in arrear of rent for more than six months and had failed and neglected to pay the amount within one month from the date of receipt of the notice served on him terminating the tenancy and for eviction.
During the pendency of the suit, section 12(3) of the Bombay Rent, Hotel and Lodging House Rates Control Act, 1947 was amended whereby clauses (a) and (b) of sub section 3 of section 12 were deleted and instead a new sub section 3 was substituted which restricted the court 's right to pass a decree of eviction on the ground of arrears of standard rent, etc., if the tenant paid or tendered in Court the arrears as stipulated in the amended clause.
The appellant claimed that the said amendment had retrospective effect and he was entitled to the benefit thereof.
The Trial Court dismissed the suit.
The Court held that since the tenant had failed to pay or deposit the arrears claimed by the eviction notice within one one month from the receipt thereof, he was liable to be evicted under section 12(3)(a) of the Act, but in view of the substituted section 12(3), he was entitled to protection he had paid the entire arrears together with interest and costs before the passing of the decree.
On appeal, the Appellate Court reversed the decree of the trial 52 Court.
The Appellate Court held that the tenant having failed to pay arrears within one month of receipt of a valid notice, he was liable to be evicted under section 12(3)(a) of the Act, since the amended section 12(3) was prospective in nature.
The appellant tenant preferred a writ petition to the High Court, which was dismissed on the ground of sub letting.
Before this Court it was inter alia contended on behalf of the appellant that (i) since the tenant was obliged to pay the education cess and other taxes, by way of permitted increases, which were payable at the end of the year, the case would not attract section 12(3)(a) as a part of the rent became payable annually and not monthly and therefore the case attracted section 12(3)(b); and (ii) the tenant having deposited the arrears, etc., in time, the courts below were justified in granting and eviction decree for arrears of rent under section 12(3)(a).
On the other hand, it was contended on behalf of the respondent that the case was clearly governed by the provisions of section 12(3)(a) since indisputably the rent inclusive of the quantified tax amount was payable by the month.
It was argued that once the quantum in respect of the tax was determined by agreement between the parties, same formed part of the rent and it was not open to contend that notwithstanding the agreement the tax amount remained payable by the year and the tenant was obliged to pay the same only after the landlord had paid the taxes to the local authority.
Dismissing the appeal, this Court, HELD:(1) In view of the decision of this Court, the case would be governed by section 12(3) as it stood before its amendment, since the substituted section 12(3) was found to be prospective in nature.
[57G] Arjun Khaimal Makhijani vs Jamnadas C. Tuliani, , followed.
(2) It is clear from the term of the lease agreement that the parties intended the tenancy to be a monthly tenancy.
[62C] (3) The statutory right to recover the amount of education cess in respect of the demised premises from the occupant/tenant can be quantified by agreement of parties so long as the amount quantified does not exceed the total amount actually paid by the owner by way of education case.
[62E] 53 (4) It seems to be well settled that education cess is a part of 'rent ' within the meaning of the ACt and when the same is claimed addition to the contractual or standard rent in respect of the demised premises it constitutes a permitted increase within the meaning of section 5(7) of the Act and being payable on a year to year basis, the rent ceases to be payable by the month within the meaning of section 12(3)(a) of the Act.
[63D E) Panchal Mohanlal Ishwardas vs Maheshwari Mills Ltd.
,[1962] ; Prakash Surya vs Rasiklal Ishverlal Mehta, ; Vanlila Vadilal Shah vs Mahendrakumar J. Shah, A.I.R. 1975 Guj. 163; Muktabai Gangadas Kadam vs Muktabai Laxman Palwankar,[1969] 71 B.L.R. 752; Bombay Municipal Corporation vs Life Insurance Corporation of India, Bombay, ; (5) If for convenience and to facilitate payment, the parties by mutual consent work out an arrangement for the enforcement of the owner 's statutory right to recover the tax amount and for discharging the tenant occupant 's statutory obligation to reimburse the owner, no reasons are seen for refusing to uphold such a contract and if the parties have agreed thereunder to the tenant occupant discharging his liability by a fixed monthly payment not exceeding the total tax liability, the said monthly payment would constitute 'rent ' payable by the month within the meaning of section 12(3) (a) Act.
[64B.C] Vishwambar Hemandas vs Narendra Jethalal Gajjar, A.I.R. 1986 Guj.
153 overruled.
(6) As the tenant had failed to comply with the requirement of section 12(3)(a) to seek protection from eviction, the Courts below were justified in ordering his eviction.