judgement:
vil Appeal Nos.
2044 45 of 1990.
From the Judgment and Order dated 18.8.1989 of the Madras High Court in C.R.P. Nos.
4797 and 4798 of 1984.
C.S. Vaidyanathan, K.V. Vishwanathan, K.V. Mohan, S.R. Bhat and S.R. Setia for the Appellant.
785 K. Parsaran and V. Balachandran for the Respondents.
The Judgment of the Court was delivered by RANGANATHAN, J.
Special leave to appeal is granted and the appeals are disposed of by a common order.
On 9.6.1936, Ramaswamy Gounder (the predecessor in interest of the respondents) executed a lease deed in favour of Gopal Sait (the predecessor in interest of the appellant).
Certain passages from an English translation of the lease deed (which was in vernacular) are relevant for the purposes of the present case and they read thus: "Whereas the property viz. vacant land well and Kaichalai etc.
belongs to the party of the First part as his ancestral property; Whereas the said property was leased out to party of the Second Part on a monthly rental of Rs.12 8 0 for 15 years and taken possession by the party of the second part from party of the First part on 3.12.1935 . . and the party of the Second part for his convenience and at his own ex penses and costs (was) permitted to construct in the said vacant land and install petrol selling business . .
After the expiry of lease period of 15 years i.e. on 12.2. 1950 the lessee shall at his own expense remove the struc ture put up by him and deliver possession of the vacant land together with well and kaichalai in the present state . SCHEDULE . vacant land situated in this bounded on the North by vacant land leased out for Burmah Oil Co. by the said Ramas wamy Gounder Gopalji Ratnaswami . . all these vacant lands together with in the fourth plot measuring East to west 84 and North to South 16 together with half share in well therein together with tiled Kaichalai . together with door, doorways etc.
There is no number for Kaichalai.
It is common ground that the total vacant area covered by the 786 lease was 3600 sq.
and that the kaichalai, referred to therein, was thirty seven and a half by sixteen and a half feet i.e. of the extent of about 600 sq.
It also appears that even though there was initially no door number for the Kaichalai, it was eventually given door No. 82 and the suit premises we are concerned with bear door Nos. 80, 81 and 82.
The lease was extended for a period of two years from 1.1.51 by a fresh deed dated 15.1.51 at an enhanced rent.
This lease deed recited: "On the expiry of two years, i.e. on 31.12.52, the lessor has no objection for the removal of the structure put up by Burmah Shell petrol pump etc except the extent of structure of thirty seven and a half feet by sixteen and a half feet put up by the lessor . " There was a fresh lease deed, again, executed on 2.1.53 for a further period of three years at a higher rent.
This deed also required the lessee, when delivering possession back to the lessor on the expiry of the lease, to remove the struc tures put up by him or the Burmah Shell Co. Ltd. "except the structure measuring thirty seven and a half ft. by sixteen and a half ft.".
The lessee appears to have continued to occupy the property even beyond 31.12.55 at a further enhanced rent.
In 1962, we are told, the lessor flied a petition to evict the lessee under section 10(3)(a)(i) and 14(1)(b) of the Madras Buildings (Lease and Rent Control) Act 1960, alleging that he required the premises for personal occupation and for bona fide immediate demolition.
"The lessee defended the petition saying that the premises do not require any immedi ate demolition, that the premises are used for non residen tial purposes and kept in good condition and that the peti tioner 's requirement for personal occupation is not bona fide." The petition was dismissed by the Rent Controller observing that the premises did not need demolition and further that, as the premises had been leased out for non residential purposes and the landlord could not seek its conversion into residential use without the controller 's application, the petitioner 's allegation that he required it for personal use was neither tenable nor bona fide.
Ramaswamy Gounder filed a petition again in 1979 for the eviction of the respondent but he died in February 1979 and the petition filed by him was dismissed for default.
There after his legal representatives (the present respondents) instituted a petition for eviction 787 (R.C.O.P. 19/79 out of which the present proceedings have arisen) of the respondents on the grounds of demolition and re construction and of wilful denial of title within the meaning of Ss. 14(1)(b) and 10(2)(vii) of the Tamil Nadu Buildings (Lease and Rent Control) Act.
In the meantime, the provisions of the Madras City Tenants ' Protection Act, 1922 (Later renamed the Tamil Nadu City Tenants ' Protection Act) were extended to the municipal limits of Udumalpettai within which the premises in question were located.
Taking advantage of this, the respondent filed O.P. 1/79 (in the same court of District Munsif cum Rent Controller) claiming the benefit of compulsory purchase conferred on tenants of land under the said Act.
The Dis trict Munsif cum Rent Controller allowed the lessor 's peti tion for eviction and dismissed the lessee 's petition.
The sub judge, on appeal, dismissed the appeals with a slight modification.
He was of the view that, except for the kai chalai, the other buildings had been put up by the respond ents with the permission of the lessor and that, hence, he was entitled to obtain compensation therefore by institution of separate appropriate proceedings.
The respondent filed two revision petitions before the High Court which declined to interfere.
The learned Judge held: "I do not see any reason to interfere with the orders of the courts below negativing the claim of the revision petition er.
In as much as admittedly the property situated in door No. 82 belonged to the landlord, this is a case to which section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 will apply.
However, the property bearing door Nos. 80 and 81 belonged to the petitioner is the find ing.
On that all that the tenant could ask for will be for removal of the superstructure.
Beyond that his claim for compensation also could not be ordered since there was no prayer for the same.
The decision in M/s. Larsen & Toubro Ltd. vs The Trustees of Dharmamoorthy Rao Bahadur, Calvala Cunnan Chetty 's Charities by its Trustees, [1988] 2 LW 380 is distinguishable because this is a case of only one and a half grounds wherein there is a kaichalai of 600 sq.
The removal shall take place within a period of three months from today.
The Civil revision petitions are dismissed.
" Hence these two appeals.
788 Though there have been claims made under the Rent Con trol Act by the lessor and under the City Tenants ' Protec tion Act by the lessee, the claim under the latter has not been pressed before us by the learned counsel for the appel lant who has confined his arguments before us to the only question whether the demised premises constitute a "build ing" within the meaning of section 2(2) of the Rent Control Act.
Sri C.S. Vaidyanathan, learned counsel for the appel lants submitted that the first appellate court has found, modifying the trial court 's findings in this regard, that the original lease comprised only of the vacant site, well and kaichalai and that all the other superstructures found in the demised premises had been put up by the appellant.
He contended that the 'kaichalai ' was merely in the nature of a shed put up for the tethering of cattle and that it was not a 'building ' within the meaning of the Rent Control Act.
Alternatively, he contended, even if the Kaichalai could be considered to be a building this was not a case of the lease of a building or hut with its appurtenant land: it was really a case of the lease of a vacant site to the petition er on which was situated a small hut in one corner.
The lease deed itself recites that the appellant had taken the premises for putting up a petrol pump.
In fact he did put in an underground storage tank, a petrol pump and other struc tures and carried on a petrol and kerosene business thereon.
Though the small Kaichalai was situate in a corner of the site, the lease intended by the parties was only that of the site.
The Kaichalai was no doubt not demolished and, per haps, the appellant also made use of it for the purposes of his business but, says Sri Vaidyanathan, this made no dif ference to the obvious and clear and dominant intention of both parties that it was the site that was leased out for a petrol pump business.
Sri Vaidyanathan contended that the issue is directly governed by the decision in the Larsen & Toubro case ; , to which one of us was a party.
He submitted that, where a lease is a composite one of land and buildings, the court has to address itself to the primary or dominant intention of the parties.
If this is to lease a building the lease of land being adjunct or incidental as in the Larsen & Toubro, case (supra), the Rent Control Act would apply.
On the other hand, if the dominant intention is to lease a site the presence of a building thereon not being considered material by either party the lease would not be one of a 'building ' covered by the Rent Control Act, whether or not it can be considered as a lease only of a vacant site governed by the City Tenant 's Protection Act.
Counsel contended that it is possible that there may be a grey area of leases which might fall under neither Act and proceedings in respect of which 789 may continue to be governed by the Transfer of Property Act, unaffected by these special laws.
The Rent Control Act contains a definition of the ex pression 'building ' which reads as follows: "2(2) 'building ' means any building or hut or part of a building or a hut, let or to be let separately for residen tial or non residential purposes and includes (a) the gardens, grounds and out houses, if any, appurtenant to such building, hut or part of such building or hut and let or to be let along with such building or hut, (b) any furniture supplied by the landlord for use in such building or hut or part of a building or hut, but does not include a room in a hotel or boarding house.
" We have not been able to get at the exact meaning of the Tamil word 'kaichalai '.
It, however, seems to denote a structure or a roof put up by hand.
Whatever may be the precise meaning of the term, we think that the definition in section 2(2) clearly includes the kaichalai in the present case.
Since the Act applies to residential and non residential buildings alike, the expression 'hut ' cannot be restricted only to huts or cottages intended to be lived in.
It will also take in any shed, hut or other crude or third class construction consisting of an enclosure made of mud or by poles supporting a tin or asbestos roof that can be put to use for any purpose, residential or non residential, in the same manner as any other first class construction.
The kaichalat is a structure which falls within the purview of the definition.
Counsel for the appellant is perhaps under stating its utility by describing it as a mere cattle shed.
The area of the shed is quite substantial and, as will be explained later, the parties also appear to have attached some importance to its existence on the site.
It is very difficult to hold, in view of the above definition, that the kaichalai is not a 'building ' within the meaning of section 2(2).
On behalf of the respondents, it is contended that, in a composite lease, the existence of a building or hut on the land (however small, insignificant or useless it may be) is sufficient per se to bring the lease within the scope of the Rent Control Act.
It is suggested for the respondent that it would be inarguable, once it is admitted or held 790 that the Kaichalai is a building and that the same has been let out, that still there is no letting out of a building within the meaning of the Act.
In support of his contention, Sri Parasaran, for the respondent, placed considerable reliance on Irani vs Chidarnbaram Chettiar, AIR 1953 Mad. 650.
He pointed out that, in that case there was a vast vacant land with only some stalls in one corner and a com pound wall but it was nevertheless held to be a case of lease of a building.
According to him, this case was not disapproved, but indeed indirectly approved, by this Court in Salay Md. Sait vs
J.M.S. Charity, [1969] 1 MLJ SC 16 though certain other cases (where leases of vacant sites with only the lessees ' buildings thereon were held to be leases of buildings) were overruled in that decision.
This case, according to him, decides that, once there is a build ing on the land, however insignificant, and it is let out, the case will be governed by the Rent Control Act.
We do not think this case is an authority for such an extreme posi tion.
It rather seems that the case was one decided on its own special facts.
At the time of the original lease by the landlord there was only a vacant site and a few small stalls.
But, by the time the relevant lease deed (which came up for consideration) was executed, it had become the site of a theatre.
No doubt the theatre did not belong to the lessor; nevertheless for several years the leased property had been sued as a theatre and the purpose of the parties was clearly that the leased premises should continue be used as a cinema theatre.
It was in this special situation that the Court came to the conclusion that it was plausible to hold the lease to be one of a building though if the struc tures not belonging to the landlord were left out of ac count, there was only a vacant site and a few stalls.
We think it would not be correct to draw support from this decision for the extreme proposition contended for on behalf of the respondent.
In our opinion, we have to travel beyond this solitary fact, go further to look at the, terms of the lease and the surrounding circumstances to find out what it is that the parties really intended.
There is no difficulty in determining the scope of the lease where a building and a piece of land are separately let out.
But in the case of composite lease of land and building, a question may well arise whether the lease is one of land although there is a small building or hut on it (which does not really figure in the transaction) or one of a lease of the building (in which the lease of land is incidental) or a lease of both regardless of their respec tive dimensions.
In determining whether a particular lease is of the one kind of another, difficulties are always bound to arise and it will be necessary to examine whether the parties intended to let out the building along with the lands or vice 791 versa.
The decisions in Sivarajan vs Official Receiver, AIR 1953 Trav.
Co. 105; Nagamony vs Tiruchittambalam, AIR 1953 Trav.
Co. 369; Official Trustee vs United Commercial Syndi cate, and Raj Narain vs Shiv Raj Saran, AIR , relied upon by Sri Vaidyanathan, were in stances where what the parties had in mind was only the lease of land, although there were certain petty structures thereon which were not demolished or kept out of the lease but were also let out.
They were clearly cases in which, we think, the applicability of the Rent Act was rightly ruled out.
On the other hand, Larsen & Toubro, ; is a case where there was the lease of a building although a vast extent of land was also included in the lease.
That was not a case which arose under the Rent Control Act but it illustrates the converse situation.
Sri Vaidyanathan wants to derive, from the case referred to above and certain cases which deal with other aspects which become relevant while considering a composite letting, a proposition that the dominant purpose of the letting should govern.
For instance, there are cases where factories, mills or cinema theatres are leased out and cases have held that the dominant object is to lease a factory, mill or theatre and that, even though in all these cases, the letting out of a building would be involved, the provisions of the Rent Control Act would not apply vide Venkayya vs Subba Rao, AIR 1957 A.P. 619; Uttam Chand vs Lalwani.
AIR 1965 SC 716 and Dwarka Prasad vs Dwarkadas; , But we think that this approach also seeks to over simplify the problem.
When we come down to consider the terms of a particular lease and the inten tion of the parties, there are bound to be a large variety of cases.
If the transaction clearly brings out a dominant intention and purpose as in the cases cited above, there may be on difficulty in drawing a conclusion one way or the other.
But it is not always necessary that there should be a dominant intention swaying the parties.
There may be cases where all that is intended is a joint lease of both the land and the building without there being any considerations 'suf ficient to justify spelling out an intention to give primacy to the land or the building.
For instance, where a person owns a building surrounded by a vast extent of vacant lands (which may not all be capable of being described appurtenant thereto, in the sense of being necessary for its use and enjoyment) and a party comes to him and desires to take a lease thereof, he may do so because he is interested either in the building or the land (as the case may be).
But the owner may very well say: "I am not interested in your need or purpose.
You may do what you like with the land (or building).
1 have got a compact property consisting of both and I want to let it out as such.
You may take it or leave it.
" The fact in such cases is that the owner has a building and land and he lets them 792 out together.
He is not bothered about the purpose for which the lease is being taken by the other party.
In such cases, it is very difficult to say that there is no lease of build ing at all unless there is some contra indication in the terms of the lease such as, for example, that the lessee could demolish the structure.
The test of dominant intention or purpose may not be very helpful in such cases in the context of this legislation.
Sri Vaidyanathan sought to contend that the words of section 2(2) "any building . . and gardens, grounds . . let or to be let along with it", import the concept that the dominant purpose should be a letting of the building.
We do not think that this is necessarily so.
The decision of this Court in Sultan Bros. P. Ltd. vs C.I.T., [ ; is of some relevance in this context.
There the Supreme Court was concerned with the interpretation of section 12(4) of the Indian Income tax Act, 1922 which read: "(4) Where an assessee lets on hire machinery plant or furniture belonging to him and also buildings, and the letting of the buildings inseparable from the letting of the said machinery, plant or furniture, he shall be entitled to allowances in accordance with the provisions of the clauses (iv), (v) and (vii) of sub section (2) of section 10 in respect of such buildings.
" The High Court took the view that the plant and machinery and buildings should not only be inseparably let out but also that "the primary letting must be of the machinery, plant or furniture and that together with such letting or along with such letting there (should be) letting of build ings." 1n that case, the High Court held, the primary let ting was of the building and so section 12(4) would not apply.
The Supreme Court did not approve of this reasoning.
It said: "Now the difficulty that we feel in accepting the view which appealed to the High Court and the Tribunal is that we find nothing in the language of sub section
(4) of section 12 to support it.
No doubt the sub section first mentions the letting of the machinery, plant or furniture and then refers to the letting of the building and further uses the word 'also ' in connection with the letting of the building.
We, however, think that this is too slender a foundation for the conclu sion that the intention was that the primary letting must be of the machinery, plant or furnitures.
In the absence of a much 793 stronger indication in the language used, there is no war rant for saying that the sub section contemplated that the letting of the building had to be incidental to the letting of the plant, machinery or furniture.
It is pertinent to ask that if the intention was that the letting of the plant, machinery or furniture should be primary, why did not the section say so? Furthermore, we find it practically impossi ble to imagine how the letting of a building could be in cidental to the letting of furniture, though we can see that the letting of a factory building may be incidental to the letting of the machinery or plant in it for the object there may be really to work the machinery.
If we are right in our view, as we think we are, that the letting of a building can never be incidental to the letting of furniture contained in it, then it must be held that no consideration of primary or secondary lettings arises inconstruing the section for what must apply when furniture is let and also buildings must equally apply when plant and machinery are let and also buildings.
We think all that sub section
(4) of section 12 contem plates is that the letting of machinery, plant or furniture should be inseparable from the letting of the buildings." The Court proceeded then to consider the concept of 'insepa rable letting ' and observed: "It seems to us that the inseparability referred to in sub section (4) is an inseparability arising from the intention of the parties.
That intention may be ascertained by flaming the following questions: Was it the intention in making the lease and it matters not whether there is one lease or two, that is, separate leases in respect of the furniture and the building that the two should be enjoyed together? Was it the intention to make the letting of the two practically one letting? Would one have been let alone or a lease of it accepted without the other? If the answers to the first two questions are in the affirmative, and the last in the nega tive then, in our view, it has to be held that it was in tended that the lettings would be inseparable.
This view also provides a justification for taking the case of the income from the lease of a building out of section 9 and putting it under section 12 as a residuary head of income.
It then be comes a new kind of income, not covered by section 9, that is, income not from the ownership of the building alone but an income which 794 though arising from a building would not have arisen if the plant, machinery and furniture had not also been let along with it.
" Though the context was somewhat different, the observations in that case are of great assistance.
We think that, in the context here also, we should be guided not by any theory of dominant purpose but by the consideration as to whether the parties intended that that the building and land should go together or whether the lessor could have intended to let out the land without the building.
The latter inference can perhaps be generally drawn in certain cases where only the lease of land dominated the thoughts of the parties but the mere fact that the building is small or that the land is vast or that the lessee had in mind a particular purpose cannot be conclusive.
Let us now turn, in the above background, to a consider ation of the lease deed in the present case.
As already mentioned, counsel for the appellant strongly relies on the purpose of the lease and seeks to make out that the building (kaichalai) was not really a significant part of the lease.
This contention is stoutly refuted on behalf of the respond ents.
It is pointed out that the kaichalai was of substan tial dimensions and that counsel for the appellant is not fight in characterising it as a mere cattle shed.
It is pointed out that the shed was also admittedly used by the appellants for the purposes of its business and there is nothing to show that this was also not in contemplation at the time of the lease.
Again it is pointed out that, in some parts of the lease deeds, the vernacular version gives first place to the kaichalai rather than to the vacant site.
Also, every one of the lease deeds attaches special emphasis that the kaichalai should not be removed but should be returned to the lessor without any damage.
We may also advert to one more circumstance which shows beyond doubt that the kaicha lai was not an insignificant structure.
We have earlier referred to the fact that Ramaswamy Gounder had filed an earlier eviction petition on the ground that he needed the premises for personal occupation and immediate demolition.
The lessee 's defence to this was not that the kaichalai was a cattle shed unfit for personal occupation, The defence was that it had been let out for a non residential purpose and could not be converted to residential use without permis sion.
This certainly demonstrates that the kaichalai was capable of use both for residential and non residential purposes.
Counsel for the respondent, in fact, wanted to go a little further and hold it against the appellant that he had not taken in those proceedings the plea, now put for ward, that the Rent Control Act could not at all be invoked.
We will not, however, 795 hold this against the appellant 'as, at that time, the benefits of the Tenants ' Protection Act had not been extend ed to Udumalpettai and the tenant would not have gained anything by raising any such point.
But the pleadings in those proceedings as well as the order of the Rent Control ler therein leave no doubt that the kaichalai was a material structure let out as such to the lessee for non residential purposes and which, with necessary permission, could also have been used for residential purposes.
Having regard to all these circumstances, the correct inference appears to be that what the lessor intended was a lease of both the land and the building.
The land was to be put to use for a petrol pump; so far as the building was concerned, the lessee was at liberty to use it as he liked but he had to maintain it in good condition and return it at the end of the lease.
This was a composite lease with a composite purpose.
It is difficult to break up the integrity of the lease as one of land alone or of building alone.
In these circumstances, we think this letting would come in within the scope of the Rent Control Act, for the reasons already explained.
Before concluding, we may touch upon two more relevant aspects.
The first is the use of the word "separately" in section 2(2).
This, however, does not affect our above construction of the section.
That word is intended to emphasise that, for purposes of the Act, a building means any unit comprising the whole or part of a building that is separately let out.
It does not mean it cannot mean that composite leases of land and building would not be covered by it.
That would be clearly contrary to the language of the whole clause which specifically talks of joint letting of land and building.
The second is the restriction of the applicability of section 2(2) to cases of letting of building and appurtenant lands only.
It may be suggested that the lands here are not "appurtenant" except perhaps to the extent required for providing access to the Kaichalai.
This argument is not very helpful to the appellants.
At best, it can mean that the Kaichalai and only a part of land needed for its enjoyment or use would be governed by the Rent Control Act.
But this was not the contention of the appellant and no attempt has been made to ascertain what the extent of such "appurtenant" land could be.
That apart, we are inclined to think that the word "appurtenant" has, in the context, a much wider mean ing.
It is not just restricted to land which, on a consider ation of the circumstances, a court may consider necessary or imperative for its enjoyment.
It should be construed as comprehending the land which the parties considered appro priate to let along with the building.
To hold to the con trary may give rise to practical difficulties.
Suppose there is, in the middle of a metropolis, a bungalow with a vast extent of land sur 796 rounding it such as for e.g. in the Larsen & Toubro case and this is let out to a tenant.
If a very strict and narrow interpretation is given to the word "appurtenant", it is arguable that a considerable part of the surrounding land is surplus to the requirements of the lessee of the building.
But, we think, no argument is needed to say that such a lease would be a lease of building for the purposes of the Rent Control Act.
Where a person leases a building together with land, it seems impermissible in the absence of clear intention spelt out in the deed, to dissect the lease as (a) of building and appurtenant land covered by the Rent Control Act and (b) of land alone governed by other relevant statu tory provisions.
What the parties have joined, one would think, the court cannot tear as under.
In fact, we may point out that a wider meaning for this word was convassed in Irani vs Chidambaram Chettiar, AIR 1953 Madras 650 which the court had no necessity to go into in the view taken by it on the interpretation of the lease deed.
In this case also no contention has been raised in regard to this aspect and so we shall also leave open the precise connotation of the word except to say that it may warrant a wide meaning in the context.
For the reasons discussed above, we see no grounds to interfere with the judgments of the courts below.
The appeal is dismissed but we make no order as to costs.
R.S.S. Appeal dis missed.

summary:
On 9.6.1936 the predecessor in interest of the respond ents executed a lease deed in favour of the predecessor in interest of the appellant, for a period of 15 years.
The property leased out was vacant land, well and Kaichalai, and the lessee was permitted to construct on the vacant land and install petrol selling business.
It was further stipulated that after the expiry of the lease period the lessee shall at his own expense remove the structure put up by him and deliver possession of the vacant land together with well and Kaichalai.
The lease was extended from time to time.
The lessor had filed petitions in 1962 and 1979 to evict the lessee under the Madras Buildings (lease and Rent Control) Act, 1950 but without success.
Thereafter, in 1979 the present respondents instituted a petition for eviction of the lessee on the ground of demolition and reconstruc tion, and of wilful denial of title, within the meaning of Sections 14(1)(b) and 10(2)(vii) of the Tamil Nadu Buildings (Lease and Rent Control) Act.
In the meantime, the provisions of the Tamil Nadu City Tenants ' Protection Act, 1922 were extended to the municipal limits of Udamalpettai.
Taking advantage of this, the lessee filed petition claiming the benefit of compulsory purchase conferred on tenants of land under the said Act.
The Dis trict Munsif cum Rent Controller allowed the lessor 's peti tion for eviction and dismissed the lessee 's petition for compulsory purchase.
The Sub Judge dismissed the appeals.
The lessee fried two revision petitions before the High Court which declined to interfere.
Before this Court it was contended on behalf of the appellant that the original lease comprised only of the vacant site, well and Kaichalai; the kaichalai was merely in the nature of a shed put up for the tethering 783 of cattle and it was not a 'building ' within the meaning of Section 2(2) of the Rent Control Act; though the small Kaichalai was situated in a corner of the site, the lease intended by the parties was only that of the site.
It was further contended that where a lease was a composite one of land and buildings, the court had to address itself to the primary or dominant intention of the parties; if the inten tion was to lease a building the lease of land being ad junct or incidental, the Rent Control Act would apply; on the other hand, if the dominant intention was to lease a site the presence of a building thereon not being consid ered material by either party the lease would not be one of a 'building ' covered by the Rent Control Act.
Larsen & Toubro case ; , relied upon.
On behalf of the respondents it was contended that, in the case of a composite lease; the existence of a building or hut on the land (howsoever small, insignificant or use less it may be) was sufficient per se to bring the lease within the scope of the Rent Control Act.
Irani vs Chidambaram Chettiar, AIR 1953 Madras 650 and Salay Mohd. Sait vs
J.M.S. Charity, [1969] 1 MLJ SC 16, relied upon.
Dismissing the appeals, this Court, HELD: (1) The Tamil word "kaichalai" seems to denote a structure or a roof put up by hand.
Whatever may be the precise meaning of the term, the definition in Section 2(2) of the Rent Act clearly includes the 'kaichalai ' in the present case.
[789D] (2) Since the Rent Act applies to residential and non residential buildings alike, the expression 'hut ' cannot be restricted only to huts or cottages intended to be lived in.
It will also take in any shed, hut or other crude or third class construction consisting of an enclosure made of mud or by poles supporting a tin or asbestos roof that can be put to use for any purpose, residential or non residential, in the same manner as any other first class construction.
[789E F] (3) In the case of composite lease of land and building, a question may well arise whether the lease is one of land although there is a small building or hut (which does not really figure in the transaction) or of a lease of the building (in which the lease of land is incidental) or a lease of both regardless of their respective dimensions.
[790G] 784 (4) It is not always necessary that there should be a dominant intention swaying the parties.
There may be cases where all that is intended is a joint lease of both the land and the building without there being any consideration sufficient to justify spelling out an intention to give primacy to the land or the building.
The test of dominant intention or purpose may not be very helpful in such cases in the context of this legislation.
[791F; 792B] Sivarajan vs Official Receiver, AIR 1953 Trav.
Co. 105; Nagamony vs Tiruchittambalam, AIR 1953 Trav.
Co. 369; Offi cial Trustee vs United Commercial Syndicate, ; Raj Narain vs Shiv Raj Saran, AIR ; Ven kayya vs Subba Rao, AIR 1957 AP 619; Uttam Chand vs Lalwani, AIR 1965 SC 716 and Dwarka Prasad vs Dwarkadas, ; (5) In the context of this case, we should be guided not by any theory of dominant purpose but by the consideration as to whether the parties intended that the building and land should go together or whether the lessor could have intended to let out the land without the building.
[794B] Sultan Bros. P. Ltd. vs C.I.T., ; , referred to.
(6) Having regard to all the facts and circumstances, the correct inference appears to be that what the lessor intended was a lease of both the land and the building, this being a composite lease with a composite purpose.
In these circumstances, this letting would come in within the scope of Rent Control Act.
[795C] (7) Where a person leases a building together with land, it seems impermissible in the absence of clear intention spelt out in the deed, to dissect the lease as (a) of build ing and appurtenant land covered by the Rent Control Act and (b) of land alone governed by other relevant statutory provisions.
What the parties have joined, the court cannot tear as under.
[796B]


judgement:
TION: Criminal Appeal No. 302 of 1990.
From the Judgment and Order dated 29.1.1990 of the Delhi High Court in Crl.
Writ Petition No. 657 of 1989.
Harjinder Singh and R.N. Joshi for the Appellant.
N.S. Hegde, Additional Solicitor General and Udai Lalit for the Respondents.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
Leave granted.
This appeal is directed by the detenu, Mahesh Kumar Chauhan Banti questioning the correctness of the judgment made in Criminal Writ Petition No. 657/89 by the High Court of Delhi dismissing the petition as devoid of any merit.
The above Writ Petition out of which this present appeal has arisen was filed by the appellant, Mahesh Kumar Chauhan against the order of detention dated 13.7.1989 clamped upon him by the first respondent, Union of India in exercise of the powers conferred by Section 3(1) of the (hereinafter referred to as the 'Act ') with a view to pre venting the detenu from engaging in transporting and con cealing smuggled goods and dealing in smuggled goods other wise than by engaging in keeping smuggled goods.
The entire facts of the case are well set out in the grounds of detention and, therefore, we think that it is not necessary to reiterate the same.
Mr. Harjinder Singh, learned counsel appearing on behalf of the appellant raised a variety of contentions, one of which being that there is an inordinate and unexplained delay in considering and disposing of the representation of the detenu dated 18.8.89 and as such the continued detention of the appellant is impermissible and unconstitutional as being violative of the mandatory provisions of Article 22(5) of the Constitution of India.
982 In the counter affidavit filed on behalf of the respond ent before the High Court, the declarant namely, Joint Secretary, Department of Revenue, Ministry of Finance while refuting the allegation of the appellant that his represen tation has been dealt with in 'cavalier manner ' has stated that the petitioner has made his representation on 21.8. 1989 and not on 18.8.1989 as alleged by the appellant and that it was received in the office of his Department on 23.8.89 and the same was forwarded to the concerned sponsor ing authority on 25.8.1989.
The Sponsoring Authority sent his comments only on 11.9.1989.
Thereafter, the representa tion along with the comments was processed and put up before the Ministry of State for Revenue, who considered and re jected the same on 15.9.1989 subject to the approval of the Finance Minister.
On 18.9.89 the file was received back from the Finance Minister 's office and the memorandum was issued on 19.9.89 rejecting the representation.
Mr. Harjinder Singh submitted that the offices of the detaining authority and the sponsoring authority are within the metropolis of Delhi and that there is absolutely no explanation for the delay occasioned on the part of the sponsoring authority in send ing his comments till 11.9.1989 though the representation was sent for comments to the said authority even on 25.8.1989 and that this considerable delay at the hands of the sponsoring authority stands unexplained vitiating the order of detention.
In support of the above contention, he placed much reliance on the decision of this Court in Rama Dhondu Borade vs
V.K. Saraf, Commissioner of Police & Ors., to which one of us (Ratnavel Pandian, J.) was a party.
In the above cited decision, this Court after referring to the dictum laid down in Smt.
Shalini Soni vs Union of India, ; and some other decisions of this Court dealing with the similar questions of delayed disposal of representation, has laid down the following proposition of law: "The detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution of India.
Correspondingly, there is a constitutional mandate commanding the concerned authority to whom the detenu for wards his representation questioning the correctness of the detention order clamped upon him and requesting for his release, to consider the said representation within reasona ble dispatch and to dispose the same as expeditiously as possible.
This constitutional requirement must be satisfied with respect but if this constitutional imperative is ob served in breach, it would 983 amount to negation of the constitutional obligation render ing the continued detention constitutionally impermissible and illegal, since such a breach would defeat the verycon cept of liberty the highly cherished right which is en shrined in Article 21 of the Constitution.
" However, in the same decision, it has been pointed out "What is reasonable dispatch depends on the facts and cir cumstances of each case and no hard and fast rule can be laid in that regard.
" We hasten to say in this connection that inspite of the fact this Court in a series of decisions has repeatedly and consistently laid down the rule in precise and clear terms that all the procedural safeguards prescribed in under Article 22(5) of the Constitution of India should be scrupu lously and strictly observed one of which as ingrained in our system of judicial interpretation, being that the detenu shall be afforded an earliest opportunity of making a repre sentation against the validity of the order of detention clamped upon him and that representation should be consid ered and disposed of as expeditiously as possible How far this Court has seriously viewed the culpable suppine indifference, callousness and recalcitrant attitude on the part of the appropriate authorities who while dealing with the representations at various stages and disposing of the same cause considerable delay is prismatically reflected with enhanced intensity through a plethora of pronouncements of this apex Court.
We may appositely refer to a few.
Shelat, J. in Khairul Haque vs State of West Bengal, Writ Petition No. 246 of 1969 decided on 10.9.69 reported in 1969 II Supreme Court Weekly Reports 529 after referring two earlier decisions in Sk Abdul Karim and Others vs State of West Bengal, and Durga Show and Ors.
vs State of West Bengal; [ has observed thus: "The fact that article 22(5) enjoins upon the detaining author ity to afford to the detenu the earliest opportunity to make a representation must implicitly mean that such representa tion must, when made, be considered and disposed of as expeditiously as possible, otherwise, it is obvious that the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning".
(emphasis supplied) 984 A Constitution Bench of this Court in Jayanarayan Sukul vs State of West Bengal, [ 19 has highly depricated the conduct of appropriate authorities in unduly and unreasonably delaying the consideration and disposal of a representation and stated as follows: "The reason for immediate consideration of the representa tion is too obvious to be stressed.
The personal liberty of a person is at stake.
Any delay would not only be an irre sponsible act on the pan of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities." (emphasis ,supplied) ' Sarkaria, J. in Shaik nanif & Ors.
vs State of W. B., ; has expressed as follows: "It is the duty of the Court to see that the efficacy of the limited, yet crucial, safeguards provided in the law of preventive detention is not lost in mechanical routine, dull ' casualness and chill indifference on the part of the authorities entrusted with their application.
In Raisuddin vs State of U.P., [ ; , it is pointed out, " . . if on such examination, it is found that there was any remissness, indifference or avoidable delay on the part of the detaining authority/State.
Government in dealing with the representation, the Court will undoubtedly treat it as a factor vitiating the continued detention of the detenu . . " Chinnappa Reddy, J. in Frances Coralie Muffin vs W.C. Khambra and Others, [ ; has expressed his view saying: " . .
No allowance can be made for lathgargic indifference.
No allowance can be made for needless procras tination.
" We do not like to swell this judgment by recapitulating all the pronouncements of this Court on this point.
985 Now the unchallengeable legal proposition that emerges from a host of decisions, a few of which we have referred to above.
is that a representation of a detenu whose liberty is in peril and deprived should be considered and disposed of as expeditiously as possible; otherwise the continued deten tion will render itself impermissible and invalid as being violative of the constitutional obligation enshrined in Article 22(5) of the Constitution and if any delay is oc cured in the disposal of a representation, such delay should be explained by the appropriate authority to the satisfac tion of the Court.
Inspite of the weighty pronouncements, of this Court making the legal position clear, it is still disquiting to note that on many occasions the appropriate authorities cause considerable delay in considering and disposing of representations and also exhibit culpable indifference in explaining such delay.
We feel that in case the appropriate authority is unable to explain personally the delay at various stages, then it will be desirable indeed appropri ate for the concerned authority or authorities at whose hands the delay has occurred to individually explain such delay.
The next question is should or can the Court in the absence of any explanation wink at or skip over or ignore such an infringement of the constitutional mandate and uphold an order of detention merely on the ground that the enormity of allegations made in the grounds of detention is of very serious nature as in the present case? Our answer would be 'Not at all '.
In this connection, it will be relevant to make refer ence to the view expressed by Mathew, J. speaking for the majority in Prabhu Dayal Deorah vs The District Magistrate, Kamrup and Others, ; which is as follows: "We say and we think it is necessary to repeat, that the gravity of the evil to the community resulting from antiso cial activities can never furnish an adequate reason for invading the personal liberty of a citizen, except in ac cordance with the procedure established by the Constitution and the laws.
The history of personal liberty is largely the history of insistence on observance of procedure.
And ob servance of procedure has been the bastion against wanton assaults on personal liberty over the years.
Under our Constitution, the only guarantee of personal liberty for a person is that he shall not be deprived of it except in 986 accordance with the procedure established by law.
" Reverting to the facts of the present case as submitted by the learned counsel, except merely mentioning that the representation was forwarded to the concerned sponsoring authority on 25.8.1989 and the comments from the sponsoring authority was received by the Department on 11.9.1989, there is absolutely no explanation as to why such a delay had occurred.
Therefore, in the light of the proposition laid down in Rama Dhondu Borade 's case (albeit), we have no other option except to allow this appeal on the ground that this undue and unexplained delay is in violation of the constitu tional obligation enshrined in Article 22(5) of the Consti tution of India rendering the impugned order invalid.
For the foregoing reasons, we set aside the order of the High Court, allow the appeal and direct the detenu to be set at liberty forthwith, unless his detention is required for some other cause.
N.P.V. Appeal al lowed.
987 SHAMBHU DAYAL AGARWALA V. STATE OF WEST BENGAL AND ANR.
MAY 3, 1990 [section RANGANATHAN AND A.M. AHMADI, JJ.] : Sections 3, 6A to 6C, 6E and 7(1) (b) Seizure of essential commodity under sec tion 6A Breach of order under section 3 Prosecution pro ceedings pending Bar on courts to make an order with regard to the possession, delivery, disposal, release or distribu tion of such commodity except the Collector Whether the Collector empowered to release the seized goods to owner or to the person from whom the commodity is seized? On September, 20. 1987 the officers of the Enforcement Branch raided the factory premises of the Appellant engaged in the manufacture of Mustard Oil.
562 bags of mustard seeds and 262 tins of oil were seized for alleged violation of the conditions of licence as well as orders issued under section 3 of the Act.
An F.I.R. was lodged with the police and as required under section 6A, the report of the seizure of the goods was also made to the Collector followed by filing of a Chargesheet before the Special Judge.
The petitioner moved the High Court by a writ Petition for quashing the proceed ings.
The learned single Judge of the High Court disposed of the Writ Petition reserving liberty to the Petitioner to move the concerned Collector for release of the seized goods.
The Petitioner accordingly moved an application under section 6E before the concerned Additional Collector for release of the seized goods.
The Collector dropped the confiscation proceedings and ordered the release of the seized goods to the Petitioner.
Against this order the State Government preferred a Revision to the High Court.
The High Court allowed the Revision and set aside the order of re lease of the seized goods passed by the Collector holding that under the provisions of section 6A read with section 6E of the Act, the Collector had no power to release the seized goods.
Aggrieved by this order the Petitioner has come up in appeal by special leave to this Court.
Dismissing the appeal.
this Court.
HELD: The Scheme of sections 6A. 6B and 6C makes it clear that after the essential commodity is seized and the same is inspected by the concerned Collector, the latter has to decide after complying with the 988 procedure set out in section 6B, whether or not to confis cate the essential commodity.
Since the procedure delineated in section 6B is time consuming, the Collector has been given special power to sell the essential commodity as stated in sub section (2) of section 6A if it is subject to speedy and natural decay or it is expedient in public inter est so to do.
If the Collector decides not to confiscate the commodity and if no prosecution is launched or contemplated the commodity has to be returned to the owner or person from whom it was seized.
If in the meantime it is sold in exer cise of power under sub section (2) of Section 6A, the price of Commodity has to be paid as provided by sub section (3) of section 6A. [998C E] Sub section (2) of section 6C uses the prefix 'return ' followed by the words 'the essential commodity seized ' and not the word 'release '.
It seems that having regard to the scheme of the Act, the object and purpose of the statute and the mischief it seeks to guard against, the word 'release ' is used in the limited sense of release for sale, etc., so that the same becomes available to the consumer public.
There could be no question of releasing the commodity in the sense of returning it to the owner or person from whom it was seized even before the proceeding for confiscation stood completed and before the termination of the prosecution in the acquittal of the offender.
[998F H] & CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 3 10 of 1990.
From the Judgment and Order dated 11.5.
1988 of the Calcutta High Court in Crl.
No. 402 of 1988.
P.P. Rao, R.K. Gupta and P.C. Kapur for the Appellant.
Kapil Sibbal, Additional Solicitor General, G. Venkatesh Rao, D.K. Sinha, J.R. Das, H.K. Puri and A. Paul for the Respondents.
The Judgment of the Court was delivered by AHMADI, J. Special leave granted.
The short question which arises for our determination is whether the Collector to whom a report of seizure of any essential commodity is made under section 6A of the Essen tial Commodities Act, 1955 (hereinafter called 'the Act '), is empowered by virtue of section 6E of the Act to release the goods seized in pursuance of an order made 989 under section 3 in relation thereto during the pendency of the proceedings before the Special Court? The facts, in brief, are as Under: The petitioner being engaged in the manufacture of mustard oil at his factory at 1, Canal Road, Police Station Behala, Calcutta 53, was required to maintain a stock of mustard seed at his factory premises.
A contingent of offi cers of the District Enforcement Branch led by the Investi gating Officer Gopal Mosat, the complainant, raided the factory premises of the petitioner on the morning of Sunday, September 20, 1987, in the absence of the petitioner.
The said raid continued till the early hours of September 21, 1987.
During the said raid 562 bags of Mustard Seeds and 267 tins of Mustard Oil, weighing about 39.92 quintals, were seized for purported infraction of the conditions of the licence as well as the orders issued under section 3 of the Act.
The Investigating Officer filed a written complaint in that behalf at the Behala Police Station which came to be treated as the First Information Report.
The report of the seizure of the essential commodity was made to the concerned Collector as required by section 6A of the Act for initiat ing confiscation proceedings.
On September 27^ 1987, a charge sheet was filed before the learned Special Judge.
It may be mentioned that before the submission of the charge sheet a Writ Petition was filed in the High Court wherein certain interim orders were made with which we are not concerned.
Suffice it to say that the said Writ Petition was disposed of by a learned Single Judge of the High Court on February 2, 1988, reserving liberty to the petitioner to apply for release of the seized goods to the Collector before whom the confiscation proceedings were pending.
Thereupon, the petitioner preferred an application on Febru ary 9, 1988 under section 6E of the Act before the Addition al Collector for release of the seized commodities.
On March 11, 1988 the said officer dropped the confiscation proceed ings, albeit without prejudice to the prosecution pending before the Special Judge, and directed the release of the seized commodities.
Feeling aggrieved by the said order of release, the State Government invoked the revisional juris diction of the High Court.
The said Criminal Revision No. 402 of 1988 was allowed by the High Court on May 11, 1988.
The High Court set aside the impugned order of release of the seized goods holding that under the provisions of sec tion 6A read with section 6E of the Act, the Collector had no power to order release of the seized commodity.
The High Court approached the question thus: "Under Section 6A of the Act the Collector has under certain circumstances been given power to confiscate the 990 goods.
By Section 6A the Collector has not been given any power to release the goods.
Section 6E is to be read in the perspective of the provision of Section 6A of the Act be cause of the phrase "pending confiscation" under Section 6A used in Section 6E.
If the Collector has not been given any power to release the goods under Section 6A, it can never be assumed that by Section 6E which gives some interim power to the Collector with reference to the proceeding under Section 6A, the Collector has been given any power to release the goods after finding that the goods cannot be confiscated.
Under Section 6A the Collector may order confiscation of the essential commodities so seized.
He has not been given any power to release the goods.
" Mr. P.P. Rao, the learned counsel for the petitioner/appellant contended that on the Collector having dropped the confiscation proceedings it was incumbent on him to pass the consequential order of release under section 6E of the Act.
According to him since the jurisdiction of the Court to make orders with regard to the possession, deliv ery, disposal, release or distribution of such essential commodity is specifically and expressly barred by section 6E of the Act, the Collector alone has jurisdiction to order release of the seized goods.
The words 'pending confisca tion ' employed in section 6E of the Act go with the word 'seize ' and are, therefore, descriptive of the essential commodity and are not intended to limit the powers of the Collector, argued counsel.
He, therefore, submitted that section 6E confers wide powers on the Collector to release the goods at any stage of the proceedings and the High Court was not justified in placing a narrow construction on the language of the said provision.
On the other hand Mr. Kapil Sibal, the learned Additional Solicitor General while sup porting the impugned order of the High Court, argued that the power to release conferred by section 6E on the Collec tor refers to release in favour of a third party and not the party from whom the essential commodity was seized.
Accord ing to him if the construction placed on section 6E on behalf of the petitioner is accepted it would defeat the very purpose of the Act.
therefore, submitted that this was not a fit case to interfere with the order passed by the Division Bench of the High Court.
In order to appreciate the rival view points we may at the outset examine the scheme of the Act.
The Act, as the Preamble reveals, was enacted to provide, in the interest of the general public, for the control of production, supply and distribution of, and trade and commerce in 991 certain commodities.
It extends to the whole of India.
The dictionary of the Act is contained in section 2.
Section 2(ia) defines 'Code ' to mean the Code of Criminal Procedure, 1973.
Section 2(f) says that words and expressions used but not defined in the Act and defined in the Code shall have the meanings assigned to them in the Code.
Section 3 empow ers the Central Government to provide for regulating or prohibiting the production, supply and distribution of essential commodity and trade and commerce therein if the same is considered necessary or expedient inter alia for maintaining or increasing supplies of any essential commodi ty or for securing their equitable distribution and avail ability at fair prices.
Sub section (2) of section 3 out lines what an order made under sub section (1) thereof may provide.
Besides regulating by licences, permits or other wise the manufacture or production of any essential commodi ty or the storage, transport, distribution, disposal, acqui sition, use, consumption, etc., thereof, the order may, inter alia, provide for controlling the prices at which the essential commodity may be bought or sold and may also require any person holding in stock any essential commodity to sell the whole or a specified part of the quantity held in stock or produced or received by him or likely to be produced or received by him to the Central Government or a State Government or to an officer or agent of such Govern ment, etc.
Sub section (3) of section 3 provides for deter mination of the price to be paid to the person from whom the essential commodity is so purchased.
Section 6 lays down that an order passed under section 3 will have effect not withstanding anything inconsistent therewith contained in any other enactment or instrument.
Then comes section 6A which provides for the confiscation of essential commodity.
Subsection (1) of this section may be reproduced for ready reference: "6A Where any essential commodity is seized in pursuance of an order made under section 3 in relation thereto it shall be reported without any unreasonable delay to the Collector of the district in which such essential commodity is seized and the Collector may, if he thinks it expedient so to do, inspect or cause to be inspected such essential commodity, whether or not the prosecution is instituted for the contra vention of such order and the Collector, if satisfied that there has been a contravention of the order, may order confiscation of (a) the essential commodities so seized; (b) any package, covering or receptacle in which such essen tial commodity is found; and 992 (c) any animal, vehicle, vessel, or other conveyance used in carrying such essential commodity ;" Sub section (2) of the said section empowers the Collector to sell any essential commodity, if the same is subject to speedy and natural decay or it is otherwise expedient so to do in public interest, at the controlled price, if any, fixed therefore or by public auction if no such price is fixed.
If the Central or the State Government has fixed the retail sale price of such commodity under the Act or under any other law, the Collector is empowered to order its sale through fair price shops at the price so fixed.
Section 6B posits that no order of confiscation of any essential com modity or conveyance, etc., shall be made unless the owner or the person from whom it is seized has been served with a notice informing him of the grounds on which it is proposed to confiscate the same and he has been given reasonable time to make a representation in writing against the grounds set out in the notice and has been given a reasonable opportuni ty of being heard.
This section incorporates the principles of natural justice to ensure that the owner of person from whom the essential commodity is seized has the fullest opportunity to satisfy the Collector against passing a confiscation order under Section 6A.
An appeal is provided by section 6C against the order of confiscation passed under section 6A. Section 6D clarifies that an award of confisca tion under the Act by the Collector shall not prevent the infliction of any punishment to which the concerned person is liable under the Act.
We then come to Section 6E which was inserted in the Act in place of the existing provision by Act No. 42 of 1986 with effect from 9th September, 1986.
Since the incident in question relates to a date subsequent to 9th September, 1986, it is unnecessary to notice the earlier provision.
Section 6E which confers exclusive juris diction on the Collector and in the State Government con cerned under section 6C to pass certain orders pending confiscation reads as under: "Whenever any essential commodity is seized in pursuance of an order made under Section 3 in relation thereto, or any package, coveting or receptacle in which such essential commodity is found, or any animal, vehicle, vessel Dr other conveyance used in carrying such essential commodity is seized pending confiscation under Section 6 A, the Collec tor, or, as the case may be, the State Government concerned under Section 6 C shall have, and, notwithstanding anything to the contrary contained in any other law for the time being in force, any court, tribunal or other authority 993 shall not have, jurisdiction to make orders with regard to the possession, delivery, disposal, release or distribution of such essential commodity, package, coveting, receptacle, animal, vehicle, vessel or other conveyance".
It is obvious on a plain reading of this provision that the same was brought on the statute book with a view to debar ring the courts from making any order with regard to the possession, delivery, disposal or distribution of any essen tial commodity seized under an order made under section 3 of the Act.
Section 7 prescribed the penalties for the contra vention of any order made under section 3 and provides for the forfeiture of the essential commodity to the Government and for the forfeiture of any animal, vehicle or other conveyance used in carrying the said essential commodity, if the court so orders.
Section 10A makes every offence under the Act cognizable and non bailable, notwithstanding any thing contained in the Code.
Section 11 provides that no Court shall take cognizance of any offence punishable under the Act except on a report made by a public servant as defined by section 21, I.P.C., or any person aggrieved or any recognised consumer association.
Section 12A empowers the State Government to constitute by notification as many Special Courts as may be necessary and Section 12AA, which begins with a non obstante clause notwithstanding anything contained in the Code provides mat all offences under the Act shall be triable only by the Special Court constituted for the area in which the offence was committed.
Section 12AC makes the provisions of the Code (including the provi sions as to bail and bonds) applicable to the proceedings before the Special Courts as if it is a Court of Sessions unless the Act provides otherwise.
The above resume of the relevant provisions of the Act makes it clear that once an order is made by the Central Government under section 3 for regulating or prohibiting the production, supply and distribution of any essential commod ity it shall have effect notwithstanding anything inconsist ent therewith contained in any other enactment or instru ment.
Any person who contravenes any order made unless section 3 becomes liable to penal action under section 7 and the property in respect of which the order has been contra vened becomes liable to forfeiture.
Notwithstanding anything contained in the Code, the offence punishable under the Act for the contravention of an order under section 3 is cogniz able and non bailable and may be tried by the Special Court constituted for the area in which the offence was committed.
Thus the breach of an order made under section 3 attracts penal consequences, i.e., imprisonment and fine, and also renders the 994 property seized liable to forfeiture.
This is one conse quence of the breach of an order made under section 3 of the Act.
The Act also provides, section 6A, that where any essential commodity has been seized in pursuance of an order made under section 3 in relation thereto, a report of the seizure must be sent to the Collector without unreasonable delay, on receipt whereof the Collector may inspect the seized property .and on being satisfied about the contraven tion of the order made under section 3 may order the confis cation of such essential commodity and any package, covering or receptacle wherein such essential commodity is found as well as any animal, vehicle or conveyance used for carrying such essential commodity.
If the essential commodity is liable to speedy decay, the Collector is empowered to sell it at the controlled price, if any, or by public auction or through fair price shops if the retail sale price for such commodity is fixed.
The price so realised minus the expenses incurred for effecting the sale has to be paid to the owner of the essential commodity or the person from whom it was seized (a) where no order of confiscation is ultimately passed by the Collector, or (b) where the appellate order passed under Section 6C so requires or (c) where in a prose cution under the Act the person concerned is finally acquit ted.
An order of confiscation made after following the requirements of section 6B does not prevent the infliction of punishment under the other provisions (sections 7 to 10) of the Act.
Thus confiscation of the essential commodity etc., is not in lieu of punishment but can be in addition to the penal consequences.
It is in this background that we must examine the controversy before us.
Section 6A empowers confiscation of the seized essential commodity, the package, covering and receptacle in which the essential commodity was found and the animal, vehicle or other conveyance in which such essential commodity was carried.
The words 'may order confiscation ' convey that the power is discretionary and not obligatory.
Sub section (2) thereof confers a special power to deal with any essential commodity which, in the opinion of the Collector, is subject to speedy and natural decay or it is otherwise expedient in public interest to be disposed of in the manner indicated therein.
Section 6A, therefore, merely confers power of confiscation and not the power of release, disposal, distri bution, etc., except to the limited extent permitted by sub section (2) thereof.
Of course the second proviso to sub section (1) of Section 6A permits the grant of an option to pay, in lieu of confiscation of any animal, vehicle, vessel or other conveyance, a fine equal to its market price at the date of seizure.
Section 6E was first enacted to debar courts from making any order with regard to the pos session, delivery, disposal or distribution of any essential commo 995 dity seized in pursuance of an order made under section 3 in relation thereto.
By the substituted section 6E as it presently stands the scope of the provision has been en larged by extending the bar of jurisdiction of the Court, tribunal or other authority to the release, etc., of pack ages, coverings or receptacles as well as animals, vehicles, vessels or other conveyances also.
It provides that whenever any essential commodity is seized under an order made in exercise of power conferred by section 3 in relation thereto no court, tribunal or other authority shall have jurisdic tion to make any order with regard to the possession, deliv ery, disposal, release or distribution of such essential commodity save and except the Collector pending confiscation under section 6A, or the State Government concerned under section 6C.
The question then is whether this power of release which is conferred on the Collector pending confis cation is wide enough to permit the release of the essential commodity to the owner or to the person from whom it was seized, notwithstanding the pendency of prosecution for breach of an order made under section 3 in relation thereto? The Act was enacted to safeguard public interest.
It was thought necessary in the interest of the general public to control the production, supply and distribution of, and trade and commerce in, certain commodities through legisla tion.
With that in view, powers to control production, supply, distribution, etc., came to be conferred on the Central Government by section 3 of the Act.
As pointed out earlier, in order to deter persons dealing in such essential commodities from contravening any order made under section 3, the law envisages two independent proceedings, namely, (i) confiscation under section 6A and (ii) prosecution leading to punishment provided by section 7 of the Act.
In order to ensure that the steady supplies of essential com modities to the members of the general public is not dis rupted, provision is made in sub section (2) of section 6A that the Collector may, if it is expedient and in public interest so to do, sell the seized commodity at the con trolled price or by public auction if no such price is fixed or through the public distribution system if the retail sale price is fixed for the said commodity.
Similar powers can be exercised if the commodity is subject to speedy and natural decay.
The obvious purpose of conferring this power on the Collector without waiting for the completion of the confis cation proceedings is to maintain the smooth supplies of essential commodities to the consumer public, avoid artifi cial shortages, maintain the price line and secure equitable distribution thereof through fair price shops.
If such a power was not confined and if the seized commodity could not be dealt with till the completion of the confiscation pro ceedings, it would defeat the very object and purpose 996 for which the Act was enacted.
By the conferment of this power a duty is cast on the Collector to see that essential commodities are not locked up in proceedings under the Act; artificial scarcity is not created to hike up prices; a close watch is kept on the supplies to the general public; when necessary in public interest the stock of seized com modities is released to combat short supply and in general to ensure the availability of essential commodities at fair prices to the general public.
To ensure that this objective of maintaining supplies and securing equitable distribution of essential commodities is not defeated, the legislature has entrusted the task to the Collector in its entirety and has ruled out interference by courts, tribunals and other authorities by placing an embargo on their jurisdiction in this behalf by section 6E of the Act.
While conferring wide powers as above on the Collector, the legislature has also protected the dealer 's interest by providing that in the event it is ultimately found that he was not guilty of contravention of any order made under section 3, he shall be paid the price realised with reasonable interest.
But if the prosecution ends in a conviction, section 7(1)(b) enjoins that the property in respect of which the order was contra vened 'shah be forfeited ' to the Government.
The language of this clause is clearly mandatory and leaves no option to the Court but to order forfeiture.
This becomes clear if we read this clause in juxtaposition with clause (c) which confers a discretion on the Court to order forfeiture of any packing, coveting or receptacle in which the essential commodity was found or any animal, vehicle, vessel or any other conveyance which was used to carry the same.
If the property is re turned to the owner or the person from whom it was seized in exercise of power under section 6E, it is difficult to understand how the Court would implement the mandate of clause (b) of sub section (1) of section 7 of the Act.
But the learned counsel for the appellant argued that even in cases where the Collector sells the essential commodity under sub section (2) of section 6A and retains the price thereof, the essential commodity ceases to be available for forfeiture under clause (b) of section 7(1) of the Act.
He, therefore, submitted that the Act itself contemplates a situation which renders clause (b) of section 7(1) otiose where the essential commodity is disposed of by the Collec tor under sub section (2) of section 6A of the Act.
He, therefore, saw no harm in releasing the commodity to the owner or the person from whose possession it was seized on condition that such person deposits the market price of the commodity on the date of seizure or gives a bank guarantee for the said sum.
In this connection reference was also made to the provision in sub section (5) of Section 452 of the Code which inter alia provides that the term 'property ' shall include, 'in the case of property regarding which an 997 offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange whether immediately or otherwise '.
This definition can be invoked in view of section 2(f) of the Act which is not inconsistent with any provision of the Act.
But this submission overlooks the fact that the power conferred by sub section (2) of section 6A to sell the essential commodity has to be exer cised in public interest for maintaining the supplies and for securing the equitable distribution of the essential commodity.
If the essential commodity is returned to the person from whom it was seized or to the owner thereof, the very objective of the Act would be defeated and the purpose of seizure would be frustrated The seizure has to be effect ed not for the sake of earning revenue, i.e. the market price of the commodity at the date of seizure, which may be ultimately forfeited, but to prevent hoarding of essential commodities, avoid artificial shortages, maintain a steady supply to the community and ensure equitable distribution at fair and reasonable prices.
If the seized commodity is returned by merely securing its value, this objective of the act will be wholly defeated.
That is why section 6A does not empower the Collector to give an option to pay, in lieu of confiscation of the essential commodity, a fine not exceed ing the market value of the commodity at the date of sei zure, as in the case of any animal, vehicle, vessel or other conveyance seized along with the essential commodity.
Only a limited power of sale of the commodity in the manner pre scribed by sub section (2) of section 6A is granted.
This shows that the legislature did not intend to confer a power on the Collector to return the essential commodity to the owner or the person from whose possession it was seized.
That is for the obvious reason that it would run counter to the very object and purpose of the enactment.
And now to the structural setting and context in which the word 'release ' is used in section 6E.
While debarring courts, tribunals and other authorities from exercising power in relation to the seized commodity, power is con ferred on the Collector or the State Government concerned under section 6C, to make orders with regard to the posses sion, delivery, disposal, release or distribution of such commodity, etc.
This power can be exercised pending confis cation.
The power conferred by this section is unqualified.
The word 'release ' is preceded by the words 'possession, delivery and disposal ' and followed by the word 'distribu tion ' The setting and context in which the word 'release ' is used makes it clear that it is not used in the sense of 'return '.
In the first place as pointed out earlier it would completely defeat the 998 purpose and object of the Act if the essential commodity seized for suspected contravention of the order made under section 3 is returned to the owner or person from whom it was seized even before the confiscation proceedings were completed.
Such an intention cannot be ascribed to the legislature.
Secondly, it is not possible to believe that the legislature would confer unqualified and unrestricted power to return the essential commodity to the owner or the person from whose possession it was seized before a decision whether or not to confiscate the same is taken.
As the section stands, if the interpretation put by the learned counsel for the appellant is accepted, it would be permissi ble to the Collector to return or restore the commodity without imposing any condition, pending confiscation pro ceedings.
We are unable to persuade ourselves to accept the interpretation placed by Mr. Rao on the word 'release '.
The scheme of sections 6A, 6B and 6C makes it clear that after the essential commodity is seized and the same is inspected by the concerned Collector, the latter has to decide, after complying with the procedure set out in section 6B, whether or not to confiscate the essential commodity.
Since the procedure delineated in section 6B is time consuming, the Collector has been given special power to sell the essential commodity as stated in sub section (2) of section 6A if it is subject to speedy and natural decay or it is expedient in public interest so to do.
If the Collector decides not to confiscate the commodity and if no prosecution is launched or contemplated the commodity has to be returned to the owner or person from whom it was seized.
If in the meantime it is sold in exercise of power under sub section (2) of section 6A, the price of the commodity has to be paid as provided by sub section (3) of section 6A. If the Collector has ordered confiscation but the order is reversed in appeal under section 6C and no prosecution is pending, sub section (2) of section 6C enjoins that the essential commodity should be 'returned ' and if that is not possible its price together with reasonable interest.
It is pertinent to note that sub section (2) of section 6C uses the words 'return the essential commodity seized ' and not the word 'release the essential commodity seized '.
It seem to us that having regard to the scheme of the Act, the object and purpose of the statute and the mischief it seeks to guard against the word 'release ' is used in the limited sense of release for sale, etc., so that the same becomes available to the con sumer public.
There could be no question of releasing the commodity in the sense of returning it to the owner or person from whom it was seized even before the proceeding for confiscation stood completed and before the termination of the prosecution in_ the acquittal of the offender.
Such a view would render clause (b) of section 7(1) totally nugato ry.
It seems to us that section 6E is intended to serve a dual 999 purpose, namely (i) to prevent interference by courts, etc., and (ii) to effectuate the sale of the essential commodity under sub section (2) and the return of the animal, vehicle, etc., under the second proviso to sub section(1) of section 6A.
In that sense section 6E is complementary in nature.
We are, therefore, of the opinion that the High Court was right in the ultimate conclusion it reached.
Counsel for the appellant next pointed out that this Court had passed an interim order on December 8, 1988 for sale of the seized commodity and for handing over the sale proceeds to the appellant on the latter furnishing a bank guarantee to the satisfaction of the Special Judge, 24 Paraganas (South), Alipore.
Despite this order the seized commodity had not been disposed of Mr. Rao, therefore, contended that this Court should not assist the respondent State which had defied and thwarted the order of this Court.
It is true that the seized commodity has not been disposed of to date.
But it appears from the subsequent order of February 13, 1989 as amended by the order of February 15, 1989, that the only direction given to the Special Judge was to dispose of the pending prosecution within two months.
It was further directed that the Special Judge will pass appro priate consequential orders regarding the release of the seized goods.
It, therefore, becomes clear that when the subsequent orders were passed on February 13 and 15, 1989, the appellant did not insist on the sale of the seized commodity as per the order of December 8, 1988.
The matter came up for hearing on subsequent occasions also but at no time did the appellant press for the implementation of the said order of December 8, 1988.
Even after the Special Judge recorded an acquittal and directed return of the goods, the appellant did not seek implementation of the said order.
Nor did the appellant move the High Court for the implementation of the said order in the appeal pending against the order of acquittal.
It is, therefore, too late in the day now to contend that as the order of December 8, 1988 has remained unimplemented we should refuse to grant any relief to the respondent State.
For the reasons stated above we see no merit in this appeal and dismiss the same with costs.
R.N .J.
Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellant filed a writ petition before the High Court challenging the detention order passed against him under Section 3(1) of the , alleging that his representation was dealt with in a cavalier manner, resulting in undue delay in its disposal.
Refuting the allegation, it was contended on behalf of the respondents that the representation, received on 23.8.89, was forwarded to the sponsoring authority for comments on 25.8.89 and the comments were received only on 11.9.89, and orders rejecting the representation were issued on 19.9.89, after obtaining the orders of the appropriate authorities.
The High Court rejected the petition as devoid of any merit.
In the appeal before this Court, on behalf of the appel lant it was contended that the offices of the detaining authority and the sponsoring authority were within the same city and there was absolutely no explanation for the delay on the part of the sponsoring authority in sending the comments till 11.9.89, though the representation dated 18.8.89 was sent for comments to the said authority even on 25.8.89, thus vitiating the order of detention, and that in view of the inordinate and unexplained delay in considering and disposing of the representation, the continued detention of the appellant was impermissible and unconstitutional, as being violative of the mandatory provisions of Article 22(5) of the Constitution of India.
Allowing the appeal, this Court, 980 HELD: 1.1 A representation of a detenu whose liberty is in peril and deprived should be considered and disposed of as expeditiously as possible; otherwise the continued deten tion will render itself impermissible and invalid as being violative of the constitutional obligation enshrined in Article 22(5) of the Constitution and if any delay is occurred in the disposal of a representation, such delay should be explained by the appropriate authority to the satisfaction of the Court.
[985A B] Rama Dhondu Borade vs
V.K. Saraf, Commissioner of Police Bengal, [1969] II Supreme Court Weekly Reports 529; Jayana rayan Sukul vs State of West Bengal, ; Shaik Hanif& Ors.
vs State of W. B., ; ; Raisuddin vs State of U.P., ; and Frances Coralic Muffin vs
W.C. Khambra and Ors.
, ; , relied on.
1.2 Inspite of the weighty pronouncements, of this Court making the legal position clear, it is still disquieting to note that on many occasion the appropriate authorities cause considerable delay in considering and disposing of represen tations and also exhibit culpable indifference in explaining such delay.
In case the appropriate authority is unable to explain personally the delay at various stages, then it will be desirable indeed appropriate for the concerned author ity or authorities at whose hands the delay has occured to individually explain such delay.
[985C D] 1.3 The Court, in the absence of any explanation, cannot wink at or skip over or ignore such an infringement of the constitutional mandate and uphold an order of detention merely on the ground that the enormity of allegations made in the grounds of detention is of very serious nature, as in the present case.
[985D El Prabhu Dayal Deorah vs The District Magistrate, Kamrup & Ors., ; , relied on.
In the instant case, except merely mentioning that the representation was forwarded to the concerned sponsoring authority on 25.8.89 and the comments from the sponsoring authority were received by the Department on 11.9.89, there is absolutely no explanation as to why such a delay had occured.
This undue and unexplained delay is in violation of the constitutional obligation enshrined in Article 22(5) of the Constitution of India rendering the order invalid.
[986B C] 981 Rama Dhondu Borade vs
V.K. Saraf, Commissioner of Police & Ors., , relied on.