judgement:
Appeal No. 85 of 1956.
20 154 Appeal from the judgment and order dated January 8, 1954, of the High Court of Saurashtra, at Rajkot, in Civil Misc.
Application No. 70 of 1952.
R. J. Kolah and A. C. Dave, for the appellant.
Porus A. Mehta and R. H. Dhebar, for respondent No. 1. 1956.
November 23.
The Judgment of the Court was, delivered by BHAGWATI J.
This appeal with a certificate of fitness granted by the High Court of Saurashtra raises an interesting question whether the agarias working in the Salt Works at Kuda in the Rann of Cutch are workmen within the meaning of the term as defined in the , hereinafter referred to as the Act.
The facts as found by the Industrial Tribunal are not in dispute and are as follows.
The appellants are lessees of the Salt Works from the erstwhile State of Dharangadhara and also hold a licence for the manufacture of salt on the land.
The appellants require salt for the manufacture of certain chemicals and part of the salt manufactured at the Salt Works is utilised by the appellants in the manufacturing process in the Chemical Works at Dharangadhara and the remaining salt is sold to outsiders.
The appellants employ a Salt Superintendent who is in charge of the Salt Works and generally supervises the Works and the manufacture of salt carried on there.
The appellants maintain a a railway line and sidings and also have arrangements for storage of drinking water.
They also maintain a grocery shop near the Salt Works where the agarias can purchase their requirements on credit.
The salt is manufactured not from sea water but from rain water which soaking down the surface becomes impregnated with saline matter.
The operations are seasonal in character and commence sometime in October at the close of the monsoon.
Then the entire area is parceled out into plots called pattas and they are in four parallel rows intersected by the railway 155 lines.
Each agaria is allotted a patta and in general the same patta is allotted to the same agaria year after year.
If the patta is extensive it is allotted to two agarias who work the same in partnership.
At the time of such allotment, the appellants pay a sum of Rs. 400/ for each of the pattas and that is to meet the initial expenses.
Then the agarias commence their work.
They level the lands and enclose and sink wells in them.
Then the density of the water in the wells is examined by the Salt Superintendent of the appellants and then the brine is brought to the surface and collected in the reservoirs called condensers and re tained therein until it acquires by natural process a certain amount of density.
Then it is flowed into the pattas and kept there until it gets transformed 'into crystals.
The pans have got to be prepared by the agarias according to certain standards and they are tested by the Salt Superintendent.
When salt crystals begin to form in the pans they are again tested by the Salt Superintendent and only when they are of a particular quality the work of collecting salt is allowed to be commenced.
After the crystals are collected, they are loaded into the railway wagons and transported to the depots where salt is stored.
The salt is again tested there and if it is found to be of the right quality, the agarias are paid therefore at the rate of Rs. 0 5 6 per maund.
Salt which is rejected belongs to the appellants and the agarias cannot either remove the salt manufactured by them or sell it.
The account is made up at the end of the season when the advances which have been paid to them from time to time as also the amounts due from the agarias to the grocery shop are taken into account.
On a final settlement of the accounts, the amount due by the appellants to the agarias is ascertained and such balance is paid by the appellants to the agarias.
The manufacturing season comes to an end in June when the monsoon begins and then the agarias return to their villages and take up agricultural work.
The agarias work themselves with their families on the pattas allotted to them.
They are free to engage extra labour but it is they who make the payments to 156 these labourers and the appellants have nothing to do with the same.
The appellants do not prescribe any hours of work for these agarias.
No muster roll is maintained by them nor do they control how many hours in a day and for how many days in a month the agarias should work.
There are no rules as regards leave or holidays.
They are free to go out of the works as they like provided they make satisfactory arrangements for the manufacture of salt.
In about 1950, disputes arose between the agarias and the appellants as to the conditions under which the agarias should be engaged by the appellants in the manufacture of salt.
The Government of Saurashtra, by its letter of Reference dated November 5, 1951, referred the disputes for adjudication to the Industrial Tribunal, Saurashtra State, Rajkot.
The appellants contested the proceedings on the ground, inter alia, that the status of the agarias was that of independent contractors and not of workmen and that the State was not competent to refer their disputes for adjudication under section 10 of the Act.
This question was tried as a preliminary issue and by its order dated August 30, 1952, the Tribunal held that the agarias were workmen within the meaning of the Act and that the reference was intra vires and adjourned the matter for hearing on the merits.
Against this order the appellants preferred an appeal being Appeal No. 302 of 1952, before the Labour Appellate Tribunal of India, and having failed to obtain stay of further proceedings before the Industrial Tribunal pending the appeal, they moved the High Court of Saurashtra in M.P. No. 70 of 1952 under articles 226 and 227 of the Constitution for an appropriate writ to quash the reference dated November 5, 1951, on the ground that it was without jurisdiction.
Pending the disposal of this writ petition, the appellants obtained stay of further proceedings before the Industrial Tribunal and in view of the same the Labour Appellate Tribunal passed an order on September 27, 1953, dismissing the appeal leaving the question raised therein to the decision of the High Court.
By their judgment dated January 8, 1954, the learned Judges 157 of the High Court agreed with the decision of the Industrial Tribunal that the agarias were workmen within section 2(.s) of the Act and, accordingly, dismissed the application for writ.
They, however, granted a certificate under article 133(1) (c) of the Constitution and that is how the appeal comes before us.
The sole point for determination in this appeal is whether the agarias working in the Salt Works of the appellants at Kuda are workmen within the definition of that term in section 2(s) of the Act.
" Workman " has been thus defined in section 2 (s) of the Act: "(s) 'Workman ' means any person employed (including an apprentice) in any industry to do any skilled or unskilled manual or clerical work for hire or ' reward and includes, for the purposes of any proceedings under this Act in relation to an industrial dispute, a workman discharged during that dispute, but does not include any person employed in the naval, military or air service of the (Government).
" The essential condition of a person being a workman within the terms of this definition is that he should be employed to do the work in that industry, that there should be, in other words, an employment of his by the employer and that there should be the relationship between the employer and him as between employer and employee or master and servant.
Unless a person is thus employed there can be no question of his being a workman within the definition of the term as contained in the Act.
The principles according to which the relationship as between employer and employee or master and servant has got to be determined are well settled.
The test which is uniformly applied in order to determine the relationship is the existence of a right of control in respect of the manner in which the work is to be done.
A distinction is also drawn between a contract for services and a contract of service and that distinction is put in this way: " In the one case the master can order or require what is to be done while in the other case he can not only order or require what is to be done 158 but how itself it ,;hall be done." (Per Hilbery, J. in Collins vs Hertfordshire County Council (1).) The test is, however, not accepted as universally correct.
The following observations of Denning L.J., at pp. 110, III in Stevenson, Jordan and Harrison Ltd. vs Macdonald and Evans (2) are apposite in this context: "But in Cassidy vs Ministry of Health (3) Lord Justice Somervell, pointed out that test is not universally correct.
There are many contracts of service where the master cannot control the manner in which the work is to be done as in the case of a captain of a ship.
Lord Justice Somervell, went on to say: One perhaps cannot get much beyond this: 'Was the contract a contract of service within the meaning which an ordinary man would give under the words '? " I respectfully agree.
As my Lord has said, it is almost impossible to give a precise definition of the distinction.
It is often easy to recognize a contract of service when you see it, but difficult to say wherein the difference lies.
A ship 's master, a chauffeur, and a reporter on the staff of a newspaper are all employed under a contract of service; but a ship 's pilot, a taxi man, and a newspaper contributor are employed under a contract for services.
One feature which seems to run through the instances is that, under a contract of service, a man is employed as part of the business, and his work is done as an integral part of the business; whereas., under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it.
" We may also refer to a pronouncement of the House of Lords in Short vs J. & W. Henderson, Ltd. (4) where Lord Thankerton recapitulated the four indicia of a contract of service which had been referred to in the judgment under appeal, viz., (a) the master 's power of selection of his servant, (b) the payment of wages or (1) , 615.
(2) , Ill. (3) , 543 s.c. , 352 3.
(4)(1946)62T.L.R. 427,429.
159 other remuneration, (c) the master 's right to control the method of doing the work, and (d) the master 's right of suspension or dismissal, but observed: "Modern industrial conditions have so much affected the freedom of the master in cases in which no one could reasonably suggest that the employee was thereby converted into an independent contractor that, if and when an appropriate occasion arises, it will be incumbent on this House to reconsider and to restate these indicia.
For example, (a), (b) and (d) and probably also (c), are affected by the statutory provisions and ,rules which restrict the master ',% choice to men supplied by the labour bureaux, or directed to him under the Essential Work provisions, and his power of suspension or dismissal.
is similarly affected.
These matters are also affected by trade union rules which are atleast primarily made for the protection of wage earners.
" Even in that case, the House of Lords considered the right of supervision and control retained by the employers as, the only method if occasion arose of securing the proper and efficient discharge of the cargo as sufficiently determinative of the relationship between the parties and affirmed that " the principal requirement of a contract of service is the right of master in some reasonable sense to control the method of doing the work and this factor of superintendence and control has frequently been treated as critical and decisive of the legal quality of relationship.
The position in law is thus summarised in Halsburv 's Laws of England, Hailsham edition, Vol. 22, page 112, para. 191: " Whether or not, in any given case, the relation of master and servant, exists is a question of fact; but in all cases the relation imports the existence of power in the employer not only to direct what work the servant is to do, but also the manner in which the work is to be done.": and until the position is restated as contemplated in Short vs J. & W. Henderson Ltd., (supra), we may take it as the prima facie test for determining the relationship between master and servant, 160 The principle which emerges from these authorities is that the prima facie test for the determination of the relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work, or to borrow the words of Lord Uthwatt at page 23 in Mersey Docks and Harbour Board vs Coggins & Griffith (Liverpool) Ltd., and Another (1), " The proper test is whether or not the hirer had authority to control the manner of execution of the act in question The nature or extent of control which is requisite to establish the relationship of employer and employee must necessarily vary from business to business and is by its very nature incapable of precise definition.
As has been noted above, recent pronouncements of the Court of Appeal in England have even expressed the view that it is not necessary for holding that a person is an employee, that the employer should be proved to have exercised control over his work, that the test of control was not one of universal application and that there were many contracts in which the master could not control the manner in which the work was done (Vide observations of Somervell, L.J., in Cassidy vs Ministry of Health (supra), and Denning, L.J., in Stevenson, Jordan and Harrison Ltd. vs MacDonald and Evans (supra).) The correct method of approach, therefore, would be to consider whether having regard to the nature of the work there was due control and supervision by the employer or to use the words of Fletcher Moulton, L.J., at page 549 in Simmons vs Health Laundry Company (2): " In my ' opinion it is impossible to lay down any rule of law distinguishing the one from the other.
It is a question of fact to be decided by all the circumstances of the case.
The greater the amount of direct control exercised over the person rendering the services by the person contracting for them the stronger the (1) ; 23.
(2) [1910] 1 K.B 543, 54 550.
9 161 grounds for holding it to be a contract of service, and similarly the greater the degree of independence of such control the greater the probability that the services rendered are of the nature of professional services and that the contract is not one of service.
" The Industrial Tribunal on a consideration of thes facts in the light of the principles enunciated above, came to the conclusion that though certain features which are usually to be found in a contract of service were absent, that was due to the nature of the industry and that on the whole the status of the agarias was that of workmen and not independent contractors.
It was under the circumstances strenuously urged before ,us by the learned counsel for the respondents that the question as regards the relationship between the appellants and the agarias was a pure question of fact, that the Industrial Tribunal had jurisdiction to decide that question and had come to its own conclusion in regard thereto, that the High Court, exercising its jurisdiction under articles 226 and 227 of the Constitution, was not competent to set aside the finding of fact recorded by the Industrial Tribunal and that we, here, entertaining an appeal from the decision of the High Court, should also not interfere with that finding of fact.
Reliance was placed on the observations of Mahajan, J., as he then was, in Ebrahim Aboobakar vs Custodian General of Evacuee Property (1) "It is plain that such a writ cannot be granted to quash the decision of an inferior court within its jurisdiction on the ground that the decision is wrong.
Indeed, it must be shown before such a writ is issued that the authority which passed the 'order acted without jurisdiction or in excess of it or in violation of the principles of natural justice.
But once it is held that the court has jurisdiction but while exercising it made a mistake, the wronged.
party can only take the course prescribed by law for setting matters right inasmuch as a court has jurisdiction to decide rightly as well as wrongly. " (1) ; ,702.
21 162 There is considerable force in this contention of the respondents.
The question whether the relationship between the parties is one as between employer and employee or between master and servant is a pure question of fact.
Learned counsel for the appellants "relied upon a passage from Batt 's "Law of Master and Servant", 4th edition, at page 10: " The line between an independent contractor and a servant is often a very fine one; it is a mixed question of fact and law, and the judge has to find and select the facts which govern the true relation between the parties as to the control of the work, and then he or the jury has to say whether the person employed is a servant or a contractor.
" This statement, however, rests upon a passing observation of Mc Cardie, J. in Performing Right Society Ltd. vs Mitchell and Booker (Palais de Danse)(1) and is contrary to the oaten& of authorities which lays down that whether or not in any given case the relation of master and servant exists is purely one of fact.
(Vide Halsbury 's "Laws of England", Hailsham edition, Vol. 22, page 112, para.
191; Per Cozens Hardy, M.R. at page 547 and Per Fletcher Moulton, L.J. at page 549 in Simmons vs Heath Laundry Company (supra).
It is equally well settled that the decision of the Tribunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under article 226 of the Constitution unless at the least it is shown to be fully unsupported by evidence.
Now the argument of Mr. Kolah for the appellants is that even if all the facts found by the Tribunal are accepted they only lead to the conclusion that the agarias are independent contractors and that the finding, therefore, that they are workmen is liable to be set aside on the ground that there is no evidence to support it.
We shall, therefore, proceed to determine the correctness of this contention.
Apart from the facts narrated above in regard to which there is no dispute, there was the evidence of the Salt Superintendent of the appellants which was recorded before the Tribunal: (1) 163 "The panholders are allotted work on the salt pans by oral agreement.
The Company has no control over the panholders in regard to the hours of work or days of work.
The Company 's permission is nor sought in matter of sickness or in matter of going out to some village.
The Company has no control over the panholders as to how many labourers they should engage and what wages they should pay them.
The company 's supervision over the work of the panholders is limited to the proper quality as per requirements of the Company and as per standard determined by the Government in matter of salt.
, The company 's supervision is limited to this extent.
The Company acts in accordance with Clause 6 of the said agreement in order to get the proper quality of salt.
Panholders are not the workmen of the Company, but are contractors.
The men, who are entrusted with pattas, work themselves.
They can engage others to help them and so they do.
There is upto this day no instance that any penholder who is entrusted with a patta, has not turned up to work on it.
But we do not mind whether he himself works or not.
If any penholder after registering his name (for a patta) gets work done by others, we allow it to be done.
We own 319 pattas.
Some patta8 have two partners.
In some, one man does the job.
ID all the pans, mainly the panholders work with the help of their (respective) families.
" Clause 6 of the agreement referred to in the course of his evidence by the Salt Superintendent provided: " 6.
We bind ourselves to work as per advice and instructions of the officers appointed by them in connection with the drawing of brine or with the process of salt production in the pattas and if there is any default, negligence or slackness in executing it on our part or if we do not behave well in any way, the Managing Agent of the said Company can annul this agreement and can take possession of the patta, brine, well etc., and as a result we will not be entitled to claim any 164 sort of consideration or compensation for any half processed salt lying in our patta; or in respect of any expense incurred or labour employed in preparing kiwa patta, well bamboo lining etc.
" There was also the evidence of Shiva Daya, an agaria, who was examined on behalf of the respondents: " There is work of making enclosures and then of sinking wells.
The company supervises this work.
While the wells are being sunk, the company measures the density of the brine of wells.
In order to bring the brine of wells to the proper density, it is put in a condenser and then the Company tests this and then this brine is allowed to flow in the pattas.
The bottom of a patta is prepared after it is properly crushed under feet and after the company inspects and okays that it is alright, water is allowed to flow into it.
When salt begins to form at the bottom of a patta, an officer of the company comes and inspects it.
At the end of 21 months, the water becomes saturated, i.e., useless, and so it is drained away under the supervision of the company.
Then fresh brine is allowed to flow into the patta from the condenser.
This instruction is also given by the company 's officer.
" It was on a consideration of this evidence that the Industrial Tribunal came to the conclusion that the supervision and control exercised by the appellants extended to all stages of the manufacture from beginning to end.
We are of opinion that far from there being no evidence to support the conclusion reached by the Industrial Tribunal there were materials on the record on the basis of which it could come to the conclusion that the agarias are not independent contractors but workmen within the meaning of the Act.
Learned counsel for the appellants laid particular stress on two features in this case which, in his submission, were consistent only with the position that the agarias are independent contractors.
One is that they do piece work and the other that they employ their own labour and pay for it.
In our opinion neither of these two circumstances is decisive of the question.
As 165 regards the first, the argument of the appellants is that as, the agaria8 are under no obligation to work for fixed hours or days and are to be paid wages not per day or hours but for the quantity of salt actually produced and passed, at a certain rate,, the very basis on which the relationship of employer and employees rests is lacking, and that they can only be regarded as independent contractors.
There is, however, abundant authority in England that a person can be a workman even though he is paid not per day but by the job.
The following observations of Crompton, J. in Sadler vs Henlock (1) are pertinent in this behalf : " The test here is, whether the defendant retained the power of controlling the work.
No distinction can be drawn from the circumstances of the man being employed at so much a day or by the job.
I think that here the relation was that of master and servant, not of contractor and contractee." (See also Blake, vs Thirst (2) and Halsbury 's " Laws of England ", Hailsham edition, Vol. 22, page 119, para.
194, wherein it is stated that if a person is a worker and not a contractor, " it makes no difference that his work is piece work ".) As regards the second feature relied on for the appellants it is contended that the agaria8 are entitled to engage other persons to do the work, that these persons are engaged by the agaria8 and are paid by them, that the appellants have no control over them and that these facts can be reconciled only with the position that the agaria8 are independent contractors.
This argument, however, proceeds on a misapprehension of the true legal position.
The broad distinction between a workman and an independent contractor lies in this that while the former agrees himself to work, the latter agrees to get other persons to work.
Now a person who agrees himself to work and does so work and is, therefore, a workman does not cease to be such by reason merely of the fact that he gets other persons to work along (1) ; , 578 ; ; , 212.
(2) (1863) 32 L.J. (Exchequer) 188. 166 with him and that those persons are controlled and paid by him.
What determines whether a person is a workman or an independent contractor is whether he has agreed to work personally or not.
If he has, then he is a workman and the fact that he takes assistance from other persons would not affect his status.
The position is thus summarised in Halsbury 's 'Laws of England ', Vol. 14, pages 651 652: " The workman must have consented to give his personal services and not merely to get the work done, but if he is bound under his contract to work personally, he is not excluded from the definition, simply because he has assistance from others, who work under him." (See also Grainger vs Aynsley : Bromley vs Tams (1); Weaver vs Floyd (2) and Whitely vs Armitage (a).) In the instant case the agarias are professional labourers.
They themselves personally work along with the members of their families in the production of salt and would, therefore, be workmen.
The fact that they are free to engage others to assist them and pay for them would not,in view of the above authorities, affect their status as workmen.
There are no doubt considerable difficulties that may arise if the agarias were held to be workmen within the meaning of section 2 (s) of the Act.
Rules regarding hours of work etc., applicable to other workmen may not be conveniently applied to them and the nature as well as the manner and method of their work would be such as cannot be regulated by any directions given by the Industrial Tribunal.
These difficulties, however, are no deterrent against holding the agarias to be workmen within the meaning of the definition if they fulfil its requirements.
The Industrial Tribunal would have to very well consider what relief, if any, may possibly be granted to them having regard to all the circumstances of the case and may not be able to regulate the work to be done by the aqarias and the remuneration to be paid to them by the employer in (1) (1881) 6 Q.B.D. 182.
(2) (3) 167 the manner it is used to do in the case of other industries here the conditions of employment and the work to be done by the employees is of a different character.
These considerations would necessarily have to be borne in mind while the Industrial Tribunal is adjudicating upon the disputes which have been referred to it for adjudication.
They do not, however, militate against the conclusion which we have come to above that the decision of the Industrial Tribunal to the effect that the agarias are workmen within the definition of the term contained in section 2 (s) of the Act was justified on the materials on the record.
We accordingly see no ground for interfering with that decision and dismiss this appeal with costs.
Appeal dismissed.

summary:
The appellants were lessees holding a license for the manufacture of salt on the demised lands.
The salt was manufactured by a class of professional labourers known as agarias from rain water that got mixed up with saline matter in the soil.
The work was seasonal in nature and commenced in October after the rains and continued till June.
Thereafter the agarias left for their own villages for cultivation work.
The demised lands were divided into plots called Pattas and allotted to the a arias with a sum of Rs. 400/ for each Patta to meet the initial expenses.
Generally the same patta was allotted to the same aigaria every year and if a patta was extensive in area, it was allotted to two agarias working in partnership.
After the manufacture of salt the agayias were paid at the rate Of 5 as.
6 pies per maund.
At the end of each season the accounts were settled and the agarias paid the balance due to them.
The agarias who worked themselves with the members of their families were free to engage extra labour on their own account and the appellants had no concern therewith.
No hours of work were prescribed, no muster rolls maintained, nor were working hours controlled by the appellants.
There were no rules as regards leave or holidays and the agarias were free to go out of the factory after making arrangements for the manufacture of salt.
The question for decision was whether in such circumstances the agarias could be held to be workmen as defined by section 2(s) Of the Industrial Disputes Act of 1947, as found by the Industrial Tribunal and agreed with by the High Court or they were independent contractors and the reference for adjudication made by the Government competent under section 10 of the Act.
Held, that the finding of the Industrial Tribunal that the agarias were workmen within the meaning of section 2(S) of the Industrial Disputes Act of 1947 was correct and the reference was competent.
The real test whether a person was a workman was whether he had been employed by the employer and a relationship of employer and employee or master and servant subsisted between them and it was well settled that the prima facie test of such 153 relationship was the existence of the right in the employer not merely to direct what work was to be done but also to control the manner in which it was to be done, the nature or extent of such control varying in different industries and being by its nature incapable of being precisely defined.
The correct approach, therefore, was to consider whether, having regard to the nature of the work, there was due control and supervision of the employer.
Mersey Docks and Harbour Board vs Coggins & Griffith (Liver Pool) Ltd., and Another ; , and Simmons vs Heath Laundry Company , referred to.
The question whether the relation between the parties was one as between an employer and employee or master and servant was a pure question of fact and where the Industrial Tribunal having jurisdiction to decide that question came to a finding, such finding of fact was not open to question in a proceeding under article 226 of the Constitution unless it could be shown to be wholly unwarranted by the evidence.
Ebrahim Aboobakar vs Custodian General of Evacuee Property ; , referred to.
Performing Right, Society Ltd. etc.
vs Mitchell and Booker (Plaise De Danse) [1924] i K.B. 762, not followed.
A person could be a workman even though he did piece work and was paid not per day but by the job or employed his own labour and paid for it.
Sadler vs Henlock ; and Blake vs Thirst (1863) 32 L.J. (Exchequer) 188, referred to.
The broad distinction between a workman and an independent contractor was that while the former would be bound by agreement to work personally and would so work the latter was to get the work done by others.
A workman would not cease to be so even though lie got other persons to work with him and paid and controlled them.
Grainger vs Aynsley : Bromley vs Tams (1881) 6 Q.B.D. 182, Weaver vs Floyd (1825) 21 L.H., Q.B. 151 and Whitely vs Armitage , referred to.
As in the instant case the agayias, who were professional labourers and personally worked with the members of their families in manufacturing the salt, were workmen within the meaning of the Act, the fact that they were free to engage others to assist them and paid for them, could not affect their status as workmen.


judgement:
Special Leave Petition No. 416 of 1981.
From the judgment and order dated the 5th September, 1980 of the Punjab and Haryana High Court in Civil Writ Petition No. 1515 of 1980.
L.N. Sinha, Attorney General, K.S. Gurumoorthy & R.N. Poddar for the Petitioner.
The Order of the Court was delivered by PATHAK, J.
This petition for special leave to appeal by the Union of India is directed against the judgment and order of the High Court of Punjab and Haryana holding the respondent, a retired Judge of the High Court, entitled to the payment of the cash equivalent of leave salary in respect of the period of earned leave at his credit on the date of his retirement.
The respondent, Shri Gurnam Singh, was a member of the Superior Judicial Service in the State of Haryana.
On February 24, 1972 he was appointed a Judge of the High Court of Punjab and Haryana and retired on March 18, 1980 on attaining the age of 62 years.
On the date of retirement the respondent had to his credit earned leave which had not been availed of by him.
He claimed that he was entitled to receive the cash equivalent of leave salary in respect of the period of unutilised earned leave.
He also claimed dearness allowance for the period before retirement.
The claim being denied, the respondent applied to the High Court of Punjab and Haryana for relief under Article 226 of the Constitution.
The 702 writ petition was allowed by the High Court by its judgment and order dated September 5, 1980 and a direction was issued to the Union of India to pay the amount claimed.
During the course of the hearing the Union of India conceded the claim to dearness allowance in view of the order dated July 3, 1980 of the Government that the Judges of the High Court were entitled to draw dearness allowance from December 1, 1979.
As to the remaining claim, the High Court held the respondent entitled to the cash equivalent of the leave salary for the period of unutilised earned leave by giving him the benefit of rule 20 B, All India Services (Leave) Rules, 1955 by virtue of rule 2 of the High Court Judges Rules, 1956.
The order of the High Court is assailed before us.
In our opinion, the High Court is plainly right.
Article 221 of the Constitution provides for the payment of salaries and allowances to a Judge of a High Court.
Clause (2) of Article 221 declares: "(2) Every Judge shall be entitled to such allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by Parliament and, until so determined, to such allowances and rights as are specified in the Second Schedule: . . " The rights in respect of leave of absence to which a Judge is entitled may be determined by or under law made by Parliament.
Parliament enacted the , and sections 3 to 13 of that Act classify the kinds of leave admissible to a Judge, and provide for the maintenance of a leave account, the aggregate amount of leave which may be granted, the commutation of leave on half allowance into leave on full allowance, the grant of leave not due, special disability leave, extraordinary leave, the rate of leave allowances, allowance for joining time, for combining leave with vacation and the consequences of overstaying leave or vacation, It also specifies the authority competent to grant leave.
The Union of India says that these several provisions constitute a complete code and exhaustively set forth all the benefits relating to leave to which a Judge of a High Court is entitled, and that it is not permissible to proceed beyond those provisions to discover any further right in favour of a Judge.
That submission is inadmissible.
Sub section
(1) of section 24 of the same Act empowers of 703 Central Government to make rules to carry out the purpose of the Act.
And clause (a) of Sub section
(2) of section 24 specifically contemplates rules providing for "leave of absence of a Judge".
In other words, it is open to the Central Government to add to the existing statutory provisions by making rules in relation to leave of absence.
Sub section
(2) of section 24 in fact enables the Central Government to make rules in respect of several other matters, such as the pension payable to a Judge, travelling allowances, use of official residence, facilities for medical treatment and other conditions of service and "any other matter which has to be, or may be prescribed".
Now the Government of India enacted the High Court Judges Rules, 1956 and rule 2 comprehensively declares: "2.
The conditions of services of a Judge of a High Court for which no express provision has been made in the , shall be, and shall from the commencement of the Constitution be deemed to have been, determined by the rules for the time being applicable to a member of the Indian Administrative Service holding the rank of Secretary to the Government of the State in which the principal seat of the High Court is situated.
Provided that, in the case of a Judge of the High Court of Delhi and a Judge of the High Court of Punjab and Haryana the conditions of service shall be determined by the rules for the time being applicable to a member of the Indian Administrative Service on deputation to the Government of India holding the rank of Joint Secretary to the Government of India stationed at New Delhi.
Provided further that in respect of facilities for medical treatment and accommodation in hospitals the provisions of the All India Service (Medical Attendance) Rules, 1954, in their application to a Judge, shall be deemed to have taken effect from the 26th January, 1950.
Provided also that where at the request of the President, any Judge undertakes to discharge any function outside his normal duties in any locality away from of his headquarters, the President may, having regard to the nature of such function and locality, determine the facilities that may be afforded to such judge including accommodation, transport and telephone so long as he continues to dis 704 charge such function, either without any payment or at a concessional rate." Rule 2A sets forth the rights of a Judge who avails of an official residence and Rule 2B provides the scale of its free furnishing.
It is clear from Rule 2 of the High Court Judges Rules, 1956, that the conditions of service of a Judge of the High Court of Punjab and Haryana, where not expressly provided in the must be determined by the rules governing a member of the Indian Administrative Service of the rank of Joint Secretary to the Government of India stationed at New Delhi.
The All India Services (Leave) Rules, 1955 contain provision for leave in relation to members of the All India Services, including the Indian Administrative Service.
On the date when the respondent retired those rules included rule 20 B which provides: "20 B. Payment of cash equivalent of leave salary: (1) The Government shall suo moto sanction to a member of the service who retires from the service under sub rule (1) of rule 16 of the All India Services (Death cum Retirement Benefits) Rules, 1958, having attained the age of 58 years on or after the 30th September, 1977 the cash equivalent of leave salary in respect of the period of earned leave at his credit on the date of his retirement, subject to a maximum of 180 days.
(2) The cash equivalent of leave salary payable to a member of the Service under sub rule (1) above shall also include dearness allowance admissible to him on the leave salary at the rates in force on the date of retirement, and it shall be paid in one lump sum, as a one time settlement.
(3) The city compensatory allowance and the house rent allowance shall not be included in calculating the cash equivalent of leave salary under this rule.
(4) From the cash equivalent so worked out no deduction shall be made on account of pension and pensionary equivalent of other retirement benefits.
705 It is not disputed that Rule 20 B applies to a member of the Indian Administrative Service of the rank of Joint Secretary to the Government of India stationed at New Delhi.
The rule entitles him on retirement from service to the cash equivalent of leave salary in respect of the period of unutilised earned leave subject to a maximum of 180 days, inclusive of dearness allowance.
It is apparent that by virtue of Rule 2 of the High Court Judges Rules, 1956 this benefit must be read as a condition of service enjoyed by a Judge of the High Court.
It may be observed that although rule 20 B of the All India Services (Leave) Rules, 1955 is a provision of a scheme applicable to members of the All India Services, there is nothing in its nature and content which makes it inapplicable mutatis mutandis to the statutory scheme pertaining to leave enacted in the .
There is also nothing in the constitutional position of a Judge of a High Court which precludes Rule 20 B from inclusion in that scheme.
It is true that Rule 20 B revolves around the concept of earned leave, and the expression "earned leave" has been specifically defined by clause (d) of rule 2 of the All India Services (Leave) Rules, 1955 as "leave earned under rule 10".
But rule 10 merely lays down the rate and amount of earned leave.
The principle in which "earned leave" is rooted must be discovered from rule 4, which provides that "except as otherwise provided in these rules leave shall be earned by duty only".
The performance of duty is the basis of earning leave.
That concept is also embedded in the .
Under that Act, the time spent by a Judge on duty constitutes the primary ingredient in the concept of "actual service",(1) which is the reason for crediting leave in the leave account of a Judge.(2) Although the expression "earned leave" is not employed in the Act, the fundamental premise for the grant of leave to a Judge is that he has earned it.
He has earned it by virtue of the time spent by him on actual service.
That a Judge earns the leave which is credited to his leave account is borne out by the proviso to section 6 of the Act, which declares that the grant under section 6 of leave not due will not be mad "if the Judge is not expected to return to duty at the end of such leave and earn the leave granted" (emphasis provided).
The concept then on which rule 20 B proceeds is familiar to and underlies the statutory scheme relating to leave formulated in the Act.
It bears a logical and reasonable relationship to the essential content of that scheme.
On 706 that, it must be regarded as a provision absorbed by rule 2 of the High Court Judges Rules, 1956 into the statutory structure defining the conditions of service of a Judge of a High Court.
We may observe that even as a right to receive pension, although accruing on retirement, is a condition of service, so also the right to the payment of the cash equivalent of leave salary for the period of unutilised leave accruing on the date of retirement must be considered as a condition of service.
In our judgment, the High Court is right in upholding the claim of the respondent to the payment of the cash equivalent of the leave salary in respect of the period of earned leave at his credit on the date of retirement in accordance with the provisions of rule 20 B of the All India Services (Leave) Rules, 1955 read with rule 2 of the High Court Judges Rules, 1956.
The Special Leave petition is dismissed.
P.B.R. Petition dismissed.

dataset_name: IN-Abs

summary:
On his retirement as Judge of the Punjab and Haryana High Court the respondent claimed cash equivalent of leave salary in respect of the unutilised earned leave standing to his credit.
His claim was rejected by the Government.
Allowing his petition under Article 226 of the Constitution the High Court directed the Government to pay the leave salary claimed by him.
In its petition for grant of special leave the appellant contended that the being a complete code governing the conditions of service of High Court Judges it would not be permissible to proceed beyond those provisions to discover any further rights in favour of the Judges of the High Court.
Dismissing the petition, ^ HELD : The High Court was right in upholding the respondent 's claim for payment of the cash equivalent of leave salary in respect of the period of unutilised earned leave at the credit of the Judge on the date of his retirement in accordance with the provisions of rule 20B of the All India Services (Leave) Rules 1955 read with rule 2 of the High Court Judges Rules 1956.
[706 B C] Section 24(2)(a) of the 1954 Act enables the Central Government to make rules in respect of, among others, "any other matter which has to be or could be prescribed." [703 B] The second proviso to rule 2 of the High Court Judges ' Rules, 1956 provides that, in the case of a Judge of the High Court of Punjab and Haryana, if no provision had been expressly made in the 1954 Act, as to the conditions of his service, they shall be determined by the rules applicable to a member of the Indian Administrative Service of the rank of Joint Secretary to the Government of India stationed at New Delhi.
Rule 20B of All India Services (Leave) Rules 1955, which is the rule applicable to a member of the Indian Administrative Service of the rank of Joint Secretary to the Government of India stationed at New Delhi, entitles him on retirement from service to the cash equivalent of leave salary in respect of the period of unutilised earned leave subject to a maximum of 180 days.
By virtue of rule 2 of the High Court Judges Rules 1956 this 701 benefit must be read as a condition of service enjoyed by a Judge of the High Court.
[704 B C, 705 A B] The concept of "earned leave" is embedded in the 1954 Act under which the time spent by a Judge on duty constitutes the primary ingredient in the concept of "actual service" which is the reason for crediting leave in the leave account of a Judge.
Although the expression "earned leave" is not employed in the 1954 Act the fundamental premise for grant of leave to a Judge is that he has earned it.
That a Judge earns the leave which is credited to his leave account is borne out by the proviso to section 6 of the 1954 Act.
The concept on which rule 20B proceeds is familiar to and underlies the statutory scheme relating to leave formulated in the Act.
It bears a logical and reasonable relationship to the essential content of that scheme.
On that it must be regarded as a provision absorbed by rule 2 of the High Court Judges ' Rules 1956 into the statutory structure defining the conditions of service of a Judge of the High Court.
[705 C H, 706A]


judgement:
Civil Appeal No. 1533 of 1980.
From the Judgment and Order dated the 20th February, 1980 of the High Court of Delhi at New Delhi in S.A.O. 149 of 1979.
S.K. Mehta for the Appellant.
Yogeshwar Prasad, Ravinder Bana and Mrs. Rani Chhabra for the Respondent.
The Judgment of the Court was delivered by 672 FAZAL ALI, J.
This appeal by special leave is directed against a judgment dated February 20, 1980 of the Delhi High Court decreeing the landlord 's suit for ejectment of the tenant.
The facts giving rise to the present litigation are summarised in the judgments of the Rent Controller and the High Court and need not be repeated.
Shorn of details, the position seems to be that Baldev Singh took the premises on rent on May 12, 1961 at a monthly rental of Rs. 95/ .
At the time when the tenancy started, the tenant was living in the tenanted house with his father, mother, two sisters and a brother.
The tenant himself was at that time a bachelor but seems to have married subsequently.
One of his sisters was married in this very house.
As it happened, in 1971 the tenant went to Canada followed by his wife and children.
It is alleged that after having gone to Canada, the husband alongwith his wife took up some employment there.
Admittedly.
the tenant did not return to India after 1971.
While leaving for Canada the tenant had left his mother and brother in the house who were regularly paying rent to the landlord.
There is some controversy as to whether or not the mother and brother, who were left behind, were being supported by the tenant or were living on their own earnings or by the income of the property left by the tenant in India.
Such a controversy however, is of no consequence in deciding the question of law which arises for consideration in this case.
On September 27, 1972 the landlord filed an application for ejectment of the tenant on the ground of bona fide requirement and non residence of the tenant under clauses (d) and (e) of sub section (1) of section 14 of the Delhi Rent Control Act, 1958 (hereinafter referred to as the 'Act ').
The fundamental plea taken by the landlord was that with the exit of the tenant from the house it became vacant and his mother and brother who were left behind could not be treated as members of the family.
Hence, in the eye of law the tenanted premises must be deemed to have fallen vacant.
The suit was resisted by the mother, brother and sister of the tenant who averred that even if the tenant alongwith his wife and children had shifted to Canada, the non applicants were continuing to live in the tenanted premises and as they had been paying rent 673 to the landlord regularly, who had been accepting the same, no question of the tenancy becoming vacant arose.
Thus, the entire case hinges on the interpretation of the word 'family ' as also clauses (d) and (e) of section 141(1) of the Act.
So far as clause (e) is concerned, both the courts below found as a fact that the landlord was not able to prove his bona fide necessity.
Therefore, as far as ground (e) is concerned, the same no longer survives in view of the findings of fact recorded by the courts below.
The only question that remains to be considered is whether the landlord can bring his case for eviction within the ambit of clause (d) of section 14(1) which may be extracted thus: "14 (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant: Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely: XX XX XX (d) that the premises were let for use as a residence and neither the tenant nor any member of his family has been residing therein for a period of six months immediately before the date of the filing of the application for the recovery of possession thereof; A close analysis of this provision would reveal that before the landlord can succeed, he must prove three essential ingredients (1) that the premises were let out for use as a residence, (2) that the tenant after having taken the premises has ceased to reside, and (3) that apart from the tenant no member of his family also has been residing for a period of six months immediately before the date of the filing of the application for ejectment.
674 It is manifest that unless the aforesaid conditions are satisfied the landlord cannot succeed in getting a decree for ejectment.
In the instant case, while it is the admitted case of the parties that the tenant had shifted to Canada alongwith his wife and children, yet he had left his mother, brother and sister in the house, hence the second essential condition of clause (d) continues to apply with full force.
The learned counsel for the appellant, however, submitted that the mother, brother and sister were undoubtedly living with the tenant and so long as they continued to reside in the tenanted premises, there could be no question of the premises falling vacant.
To this, the counsel for the landlord countered that neither the mother, nor the brother nor the sister could in law be treated as members of the family of the tenant after he had himself shifted to a country outside India.
Even though while he was living in Delhi, he was in Government service.
Thus, it was argued that in the eye of law, the so called family members would lose their status as members of the family of the tenant and would be pure trespassers or licensees or squatters.
While the suit of the landlord was dismissed by the Rent Controller, the Rent Control Tribunal allowed the appeal and directed eviction of the family members of the tenant under clause (d) of section 14(1) of the Act.
The family members of the tenant then went up in appeal to the High Court which also affirmed the findings of the Tribunal and upheld the order of eviction passed by it.
The High Court was also of the view that after the exit of the main tenant from India to Canada, neither the mother, nor the brother, nor the sister could be legally termed as a member of the family of the tenant.
We have heard counsel for the parties and given our anxious consideration to all aspects of the matter and we feel that the High Court has taken a palpably wrong view of the law in regard to the interpretation of the term 'member of the family ' as used in clause (d) of section 14(1) of the Act.
In coming to its decision, the High Court seems to have completely overlooked the dominant purpose and the main object of the Act which affords several intrinsic and extrinsic evidence to show that the non applicants were undoubtedly members of the family residing in the house and the migration of the main tenant to Canada would make no difference.
The word 'family ' has been defined in various legal dictionaries and several 675 authorities of various courts and no court has ever held that mother or a brother or a sister who is living with the older member of the family would not constitute a family of the said member.
Surely, it cannot be said by any stretch of imagination that when the tenant was living with his own mother in the house and after he migrated to Canada, he had severed all his connections with his mother so that she became an absolute stranger to the family.
Such an interpretation is against our national heritage and, as we shall show, could never have been contemplated by the Act which has manifested its intention by virtue of a later amendment.
Coming now to (the definitions, we find that in Words and Phrases (permanent Edition volume 16) at pp.
303 311 the word 'family ' has been defined thus: "The father, the mother, and the children ordinarily constitute a "family".
"The word "family" embraces more than a husband and wife and includes children." "A "family" constitutes all who live in one house under one head." "Father and mother of two illegitimate children, and children themselves, all living together under one roof, constituted a "family." (pp.
303 304) "The word "family" in statute authorizing use of income for support of ward and "family" is not restricted to those individuals to whom ward owes a legal duty of support, but is an expression of great flexibility and is liberally construed, and includes brothers and sisters in poor financial circumstances for whom the insane ward, if competent, would make provision." (p. 311) "The general or ordinarily accepted meaning of the word "family", as used in Compensation Act, means a group, comprising immediate kindred, consisting of the parents and their children, whether actually living together or not." (p. 343) (Emphasis ours) 676 Similarly, in Webster 's Third New International Dictionary, the word 'family ' is defined thus: "Family household including not only the servants but also the head of the household and all persons in it related to him by blood or marriage. a group of persons of common ancestry." (p. 821) (Emphasis supplied) In Chambers Twentieth Century Dictionary (New Edition 1972), the word 'Family ' has been defined thus: "family the household, or all those who live in one house (as parents, children, servants): parents and their children)" In Concise Oxford Dictionary (Sixth Edition), the same definition appears to have been given of the word 'family ' which may be extracted thus: "family Members of a household, parents, children, servants, etc.
set of parents and children, or of relations, living together or not; persons children.
All descendants of common ancestor.
" A conspectus of the connotation of the term 'family ' which emerges from a reference to the aforesaid dictionaries clearly shows that the word 'family ' has to be given not a restricted but a wider meaning so as to include not only the head of the family but all members or descendants from the common ancestors who are actually living with the same head.
More particularly, in our country, blood relations do not evaporate merely because a member of the family the father, the brother or the son leaves his household and goes out for some time.
Furthermore, in our opinion, the legislature has advisedly used the term that any member of the family residing therein for a period of six months immediately before the date of the filing of the action would be treated as a tenant.
The stress is not so much on the actual presence of the tenant as on the fact that the members of the family actually live and reside in the tenanted premises.
In fact, it seems to us that clause (d) of section 14(1) of the Act is a special concession given to the landlord to obtain possession only where the tenanted premises have 677 been completely vacated by the tenant if he ceased to exercise any control over the property either through himself or through his blood relations.
In fact, a controversy arose as to what would happen to the members of the family of the tenant if while residing in the premises he dies and in order to resolve this anomaly the legislature immediately stepped in to amend certain provisions of the Act and defined the actual connotation of the term 'members of the family '.
By virtue of Act 18 of 1976 the definition of "Tenant" was inserted so as to include various categories of persons.
Sub clause (iii) of clause (i) of section 2 of the Act actually mentions the persons who could be regarded as tenant even if main tenant dies.
This sub clause may be extracted thus: "(1) "tenant" means any person by whom or on whose account or behalf the rent of any premises is, or, but for a special contract, would be, payable and includes (i) a sub tenant; (ii) any person continuing in possession after the termination of his tenancy; and (iii) in the event of the death of the person continuing in possession after the termination of his tenancy, subject to the order of succession and conditions specified, respectively, in Explanation I and Explanation II to this clause such of the aforesaid person 's (a) spouse, (b) son or daughter or, where there are both son and daughter, both of them, (c) parents, (d) daughter in law, being the widow of his predeceased son, as had been ordinarily living in the premises with such person as a member or members of his family up to the date of his death, but does not include, . ." It would appear that parents were expressly included in sub clause (iii).
It has also been provided that apart from the heirs 678 specified in clauses (a) to (d) (extracted above), even those persons who had been ordinarily living in the premises with the tenant would be treated as members of the family.
The statement of objects and reasons for this amendment may be extracted thus: "There has been a persistent demand for amendments to the Delhi Rent Control Act, 1958 with a view to conferring a right of tenancy on certain heirs/successors of a deceased statutory tenant so that they may be protected from eviction by landlords and also for simplifying the procedure for eviction of tenants in case the landlord requires the premises bona fide for his personal occupation.
Further, Government decided on the 9th September, 1975 that a person who owns his own house in his place of work should vacate the Government accommodation allotted to him before the 31st December, 1975.
Government considered that in the circumstances, the Act required to be amended urgently.
" If this was the intention of the legislature then clause (d) of section 14(1) of the Act could not be interpreted in a manner so as to defeat the very object of the Act.
It is well settled that a beneficial provision must be meaningfully construed so as to advance the object of the Act, and curing any lacuna or defect appearing in the same.
There are abundant authorities to show that the term "Family" must always be liberally and broadly construed so as to include near relations of the head of the family.
In Hira Lal & Ors.
vs Banarsi Dass(1) even the learned Judge who decided that case had observed at page 472 that the term "members of the family" on the facts and circumstances of the case should not be given a narrow construction.
In Gobind Dass & Ors.
vs Kuldip Singh(2) a Division Bench of Delhi High Court consisting of H.R. Khanna, C.J. (as he then was) and Prakash Narain, J. while recognising the necessity of giving a wide interpretation to the word "family" observed as follows: "I hold that in the section now under consideration the word "family" includes brothers and sisters of the deceased 679 living with her at the time of her death.
I think that that meaning is required by the ordinary acceptation of the word in this connection and that the legislature had used the word "family" to introduce a flexible and wide term." In Mrs. G. V. Shukla vs Shri Prabhu Ram Sukhram Dass Ojha(1) Mahajan, J. (as he then was) observed as follows: "Therefore, it must be held that the word 'family ' is capable of wider interpretation, but that interpretation must have relation to the existing facts and circumstances proved on the record in each case.
" Even as far back as 1930, Wright, J. in Price vs Gould & Ors (2) (a King 's Bench decision) had clearly held that the word "family" included brothers and sisters and in this connection observed as follows: "I find as a fact that the brothers and sisters were residing with the deceased at the time of her death.
It has been laid down that the primary meaning of the word "family" is children, but that primary meaning is clearly susceptible of wider interpretation, because the cases decide that the exact scope of the word must depend on the context and the other provisions of the will or deed in view of the surrounding circumstances." . . "Thus, in Snow vs Teed (1870, 23 L.T. Rep. 303; L. Rep. it was held that the word "family" could be extended beyond not merely children but even beyond the statutory next of kin." In view, however, of the very clear and plain language of clause (d) of section 14(1) of the Act itself, we do not want to burden this judgment by multiplying authorities.
On a point of fact, we might mention that the Rent Controller had given a clear finding that the mother, younger brother (Davinder Kumar Bangia) and sister (Vijay Lakshmi) were undoubtedly residing in the disputed premises alongwith the main 680 tenant and continued to reside there even on the date when the action for ejectment was brought.
In these circumstances, we are satisfied that the view taken by the High Court is legally erroneous and cannot be supported.
The landlord has miserably failed to prove the essential ingredients of clause (d) of section 14(1) of the Act so as to entitle him to evict the members of the family of the main tenant.
We therefore, allow this appeal, set aside the judgment and order of the High Court and dismiss the plaintiff 's action for ejectment and restore the judgment of the Rent Controller.
In the peculiar circumstances of the case, there will be no order as to cost.
H.L.C. Appeal allowed.

summary:
A landlord is entitled to recover possession of the premises let for residential purpose under section 14(1)(d) of the Delhi Rent Control Act, 1958, if he can show that neither the tenant nor any member of his family has been residing therein for a period of six months immediately before the date of the filing of the application.
The appellant took the house in question on lease in May, 1961 and lived there with his parents, sisters and a brother.
He went to Canada in 1971, leaving behind in the house, his mother and brother, who continued to pay the rent.
The landlord filed an application for ejectment of tenant under section 14(1)(d) of the Delhi Rent Control Act in September 1972 contending that with the migration of the tenant to Canada, his mother and brother could not be treated as members of the appellant 's family.
The application was dismissed by the Rent Controller who found that the mother, brother and sister of the appellant were undoubtedly residing in the disputed premises along with the appellant and continued to reside there even on the date when the action for ejectment was brought.
The landlord 's appeal against the order of the Rent Controller was allowed by the Rent Control Tribunal which ordered eviction of the family members of the appellant from the tenanted house.
The appeal of the family members against the order of eviction was dismissed by the High Court on the ground that after the exit of the main tenant to Canada, neither the mother nor the brother or the sister could be legally termed as a member of the family of the appellant.
Allowing the appeal, 671 ^ HELD: 1.
(a) The Act affords intrinsic evidence to show that the non applicants were undoubtedly members of the family residing in the house and the migration of the main tenant to Canada would make no difference.
[674 H] (b) The term 'family ' has to be given not a restricted but a wider meaning.
There are abundant authorities to show that the term 'family ' should always be liberally and broadly construed so as to include near relations of the head of the family.
A beneficial provision must be meaningfully construed so as to advance the object of the Act.
E] Price vs Gould and Ors., [1930] Vol.
143 Law Times 333; G.V. Shukla vs Shri Prabhu Ram Sukhram Dass Ojha, [1963] P.I.R. (Vol.
LXV) 256; Govind Dass and Ors.
vs Kuldip Singh, A.I.R. 1971 Delhi 151 and Hira Lal and Ors.
vs Banarsi Dass, [1979] 1 R.L.R. 466 referred to.
(c) The Act has manifested its intention by virtue of a later amendment.
The definition of 'tenant ' inserted in section 2(1) of the Act by the Amending Act 18 of 1976 expressly included 'parents ' in sub clause (iii) thereof and also indicated that apart from the heirs of the tenant specified therein, even those persons who had been ordinarily living in the premises with the tenant would be treated as members of the family.
[675 B; 677 H; 678 A] 2.
(a) The legislature has advisedly provided that any member of the family residing therein for a period of six months immediately before the date of the filing of the action would be treated as a tenant.
The stress is not so much on the actual presence of the tenant as on the fact that the members of the family actually live and reside in the tenanted premises.
Clause (d) of section 14(1) of the Act is a special concession given to the landlord to obtain possession only where the tenanted premises have been completely vacated by the tenant.
[676 G H; 677 A] (b) The landlord had failed to prove the essential ingredients of clause (d) of section 14(1) of the Act so as to entitle him to evict the members of the family of the main tenant.
It could not be said that when the appellant migrated to Canada, he had severed all his connections with his mother so that she became an absolute stranger to the family.
Such an interpretation is against our national heritage and could never have been contemplated by the Act.
[680 B; 675 B]