judgement:
Civil Appeals Nos. 2224, 2225 and 2226 of 1979.
Appeals by Special Leave from the Judgment and Order dated 22 5 1979 of the Delhi High Court in Civil Writ Nos. 111, 551 and 284 of 1979.
V.M. Tarkunde, A. K. Sen, G. L. Sanghi, B. P. Maheshwari and section K. Bhattacharya for the Appellants in C.A.s. 2224, 2225, 2226/79.
P. R. Mridul, Vimal Shanker, K. R. R. Pillai, P. N. Wadhera and Aruneshwar Gupta for Respondent No. 1 in CA 2224/79.
D. D. Chawla, Vineet Kumar and R. section Sihota for Respondent Nos.
1 3 in CA 2225/79.
B. D. Sharma and Aloka Bhattacharya for Respondent No. 1 in CA 2226/79.
950 The Judgment of the Court was delivered by UNTWALIA J.
These three appeals by the Bar Council of Delhi and the Bar Council of India are from the common judgment of the Delhi High Court allowing three writ petitions filed by the first respondent in each appeal and others seeking the setting aside of the election of the Bar Council of Delhi held in the year 1978.
As the points involved in them are identical they are all being disposed of by this common judgment.
We shall proceed to state the facts from the records of Civil Appeal No. 2224 of 1979 in which respondent No. 1 is Shri Surjeet Singh Bhangul.
He was a voter as also a candidate for the election wherein he lost.
In the writ petition giving rise to Civil Appeal 2225 of 1979 there were three petitioners two were candidates but Shri D. R. Thakur was an advocate whose name was not included in the electoral roll although his name occurs in the State roll of Advocates.
Shri A. section Randhawa, respondent No. 1 in Civil Appeal 2226 of 1979 was a person whose name occurred both in the State roll of Advocates as also in the electoral roll.
But he was not a candidate.
Surjeet Singh was an advocate who was a member of the Delhi Bar Council before the impugned election.
A proviso was added to Rule 3(j) of the Bar Council of Delhi Election Rules, 1968 in the year 1978.
In accordance with that proviso a copy of the declaration form was sent on 14th June, 1978 to the advocates whose names found place in the State roll of Advocates asking them to return the declaration form duly filled up and signed within the specified period.
A publication to this effect was also made in some newspapers viz. Hindustan Times, Indian Express, Statesman etc.
The last extended date for the submission of the declaration forms was 14th September 1978 and the electoral roll was finally published on the 16th September 1978 excluding the names of about 2,000 advocates who had failed to submit such declaration forms.
On the basis of the electoral roll so prepared, according to the programme of election, the election of members to the Bar Council of Delhi was held on the 17th November 1978.
The total number of advocates on the Advocates roll was 5,000 and odd out of which the names of about 3,000 and odd only were included in the electoral roll in accordance with the proviso to Rule 3(j) of the Election Rules of the Bar Council of Delhi.
The results of the election were declared on the 19th November, 1978.
The names of the 15 persons who were declared elected were published in the Gazette on the 22nd November, 1978.
Thereafter on the 24th of January 1979 the writ petition was filed in the High Court challenging the whole election by attacking the validity of the proviso to Rule 3(j).
951 Apart from the successful candidates the writ petitions were mainly and vigorously contested by the two Bar Councils, namely, the Bar Council of Delhi and the Bar Council of India.
The latter seems to have taken keen interest in the matter of contesting the writ petitions because the impugned proviso to Rule 3(j) was introduced in the Election Rules with the approval of the Bar Council of India in accordance with the requirement of sub section
(3) of Section 15 of the .
The High Court has taken the view: (1) "Lastly, the irresistible conclusion, therefore, is that so far as the qualifications to be possessed by and the conditions to be satisfied by an advocate before being brought on the Electoral Roll are concerned only the Bar Council of India has the competence to make the rules under Section 3 (4) and Section 49 (1) (a) and the State Bar Council has no power at all to make a rule on this subject." (2) The plea of estoppel raised against Surjeet Singh was rejected.
(3) "Rank injustice has been done to the petitioner because more than 2,000 advocates were wrongfully disqualified from being brought on the Electoral Roll.
This has materially affected the result of the election." (4) "For the reasons stated above, we hold that Rule 3(j) of the Bar Council of Delhi Election Rules, 1968, is in excess of the rules making power of the Bar Council of Delhi.
Since the action taken by the Bar Council of Delhi to disqualify more than 2,000 advocates because of their non compliance with the proviso to Rule 3(j) has resulted in great prejudice to the petitioner who can justly claim that the bringing on the Electoral Roll of more than 2000 advocates would have made a considerable difference to his own election and to the election as a whole, we are constrained to set aside the election to the Bar Council of Delhi held on 17th November 1978.
" M/s V. M. Tarkunde, A. K. Sen and G. L. Sanghi appearing for the appellants, broadly speaking, made the following submissions: (1) That the impugned proviso of Delhi Bar Council Election Rules was valid as it was within the competence of the Delhi Bar Council to add such a proviso in the Rules under its rule making power with the approval of the Bar Council of India.
In any event the ap 952 proval had the effect of making it a rule made by the Bar Council of India.
(2) The electoral roll prepared by the Bar Council of Delhi could not be challenged in a writ petition.
The preparation of the electoral roll is final and any wrong exclusion or inclusion of name from or in the electoral roll is beyond the pale of challenge in a writ petition.
(3) That it was not shown that the result of the election has been materially affected due to the non inclusion of the names of about 2,000 advocates from the electoral roll.
There was neither any pleading to this effect nor was any material placed before the High Court in support of this assertion.
(4) That Surjeet Singh and others like him who had taken part in the election and were defeated were estopped from challenging the election as they could not approbate and reprobate at the same time.
They were guilty of laches also as they could have challenged in the High Court the validity of the impugned proviso before the election was actually held.
(5) That there is a specific remedy provided in the Delhi Bar Council Election Rules for challenging any election to the Bar Council and hence in view of the adequate remedy being available the election could not be challenged by a writ petition.
M/s. P. R. Mridul and F. section Nariman appearing for the contesting respondents combated all the submissions made on behalf of the appellants and supported the judgment of the High Court.
We find no substance in any of the points urged on behalf of the appellants.
We are, by and large, in agreement with the decision of the High Court on each and every point.
We proceed to briefly state our reasons for the same.
Section 4 of the provides for persons who may be admitted as advocates on a State roll.
Clause (e) of sub section
(1) says that the person must fulfil such other conditions as may be specified in the rules made by the State Bar Council under Chapter III of the Act which concerns the admission and enrollment of advocates.
Under the Rules so framed a person desirous of being enrolled as an advocate has to apply in the prescribed form furnishing all the details of his qualifications to be enrolled as an advocate.
In item 3 of the application the applicant declares "I declare that upon admission I pro 953 pose to practise within the State of Delhi.
" At the end of the application form certain undertakings are given by the applicant.
Clause (c) of the undertaking runs thus: "I hereby declare and undertake that (iv) I intend to practise ordinarily and regularly within the jurisdiction of the Bar Council of Delhi.
(v) I shall inform the Bar Council of any change of address of my residence or place of practice for the proper maintenance of the roll and voters ' list." According to the case of the Delhi Bar Council many advocates after having been enrolled and put on the State roll of advocates of Delhi break the said undertaking.
They do not ordinarily and regularly practise within the jurisdiction of the Bar Council of Delhi nor do they inform any change of address for the proper maintenance of the roll and the voters ' list.
It is a pertinent matter no doubt.
It is the duty of the Bar Council to obtain information as to whether any person put on the roll of State advocates ceased ordinarily and regularly to practise within the jurisdiction of the Bar Council of Delhi, if so, to take steps for removal of his name from the State rolls.
That would automatically, as we shall presently show, debar the person concerned to be put on the electoral roll.
But no provision in the or any rule was brought to our notice enabling the Delhi Bar Council to remove the name of a person from the State roll if he has broken the undertaking aforesaid.
Section 26A of the merely says "A State Bar Council may remove from the State roll the name of any advocate who is dead or from whom a request has been received to that effect.
" In para 2 of the affidavit of Shri D. Gupta, Advocate it is stated: "It is the experience of this Council that most of the advocates who are elevated to the Bench or those who join subordinate judiciary or family or other business or employment, seldom care to notify this Council to get their licence revoked or suspended, nor do the advocates shifting their place of practice from Delhi to elsewhere, care to notify this Council in that respect, although the undertakings at internal page 8 of the Enrollment form of this Council obliges them to do so.
" It may be so but the lacunae in this regard have got to be removed by amending the or by properly framing the rules in that 954 respect.
We are definitely of the opinion that so long the existing rules framed by the Bar Council of India remained in vogue all persons whose names are on the State roll are entitled proprio vigore to be put on the electoral roll.
Rule 1 occurring in Chapter I of of the Bar Council of India Rules says: "1.
Every advocate whose name is on the Electoral Roll of the State Council shall be entitled to vote at an election.
" Rule 2 provides: "2.
Subject to the provisions of Rule 3, the name of every advocate entered in the State Roll shall be entered in the electoral roll of the State Council.
" Exceptions to Rule 2 are to be found embodied in Rule 3 which runs thus: "3.
The name of an advocate appearing in the State Roll shall not be entered in the Electoral Roll, if on information obtained by the State Council: (a) his name has any time been removed; (b) he has been suspended from practice, provided that this disqualification shall operate only for a period of five years from the date of the expiry of the period of suspension; (c) he is an undischarged insolvent; (d) he has been found guilty of an election offence in regard to an election to the State Council by an Election Tribunal, provided however that such disqualification shall not operate beyond the election next following after such finding has been made; (e) he is convicted by a competent court for an offence involving moral turpitude, provided that this disqualification shall cease to have effect after a period of two years has elapsed since his release; (f) he is in full time service or is in such part time business or other vocation not permitted in the case of practising advocates by the rules either of the State Council concerned or of the Council; (g) he has intimated voluntary suspension of practice and has not given intimation of resumption of practice.
" None of the clauses in Rule 3 covers a clause of the kind found in the proviso to Rule 3(j) of the Delhi Bar Council Election Rules.
955 Rule 3 of Delhi Bar Council Election Rules is headed 'Interpretation".
Clause (j) of the said Rules says: ""Electoral Roll" means and includes the roll containing the names of the advocates prepared in accordance with the rules of the Bar Council of India in Part III, Chapter I." The impugned proviso added to clause (j) in the year 1978 runs thus: "Provided that the Electoral Roll shall not include the name of such advocate who fails to file in the office of the Bar Council, on or before such date (not being earlier than 30 days of the date of notification) as may be notified by the Bar Council in such manner as may be considered proper by it from time to time, or within 45 days of the putting up of the preliminary Electoral Roll under Rule 4(1) of Chapter I of Part III of the Bar Council of India Rules, a declaration containing the name, address and number of the advocate on the State Roll and to the effect that: (a) He is an advocate ordinarily practising in the Union Territory of Delhi and that his principal place of practice is within Union Territory of Delhi; (b) He is not an undischarged insolvent; (c) He has never been convicted by any court for an offence involving moral turpitude; or A period of two years has elapsed since his release after being convicted of an offence involving moral turpitude; (In case of conviction particulars of such conviction should be given) (d) He is not in full time service or business or in any such part time business or other vocation as is not permitted in the case of practising advocates by the rules of the Bar Council; and (e) He has not been suspended from practice; and on the failure to file the declaration or on filing of incomplete or incorrect declaration in any respect, it shall be presumed that the name of such advocate is not to be entered on the Electoral Roll in accordance with Rule 3 of Chapter I of Part III of the Bar Council of India Rules.
" 956 In these appeals we are not concerned with the propriety or legality of asking such a declaration from a person belonging to the noble profession.
We shall proceed on the assumption that such an information could be asked for from a person concerned whose name is on the State roll of Advocates.
On the furnishing of such information the name of the advocate concerned could not be included in the electoral roll only if on the basis of that information one or more clauses of Rule 3 of the Bar Council of India Rules to be found in Part III, Chapter I could come into play, not otherwise.
In these appeals we are not concerned with any such case.
The controversy here centres round the fact that under the impugned proviso mere failure to file the required declaration disqualified the advocate concerned from being put on the electoral roll thus depriving him of his right to vote or to stand as a candidate.
The crux of the matter in these appeals is as to whether such a proviso was valid or ultra vires.
In order to determine the point at issue we shall now read some relevant provisions of the .
Section 3 provides for the constitution of the State Bar Council, sub section
(4) of which says: "(4) An advocate shall be disqualified from voting at an election under sub section (2) or for being chosen as, and for being, a member of a State Bar, Council, unless he possesses such qualifications or satisfies such conditions as may be prescribed in this behalf by the Bar Council of India, and subject to any such rules that may be made, an electoral roll shall be prepared and revised from time to time by each State Bar Council.
" On a plain reading of this sub section it is manifest that under the Act the qualifications and conditions entitling an advocate to vote at an election or for being chosen as a member of the State Bar Council has to be prescribed by the Bar Council of India.
The State Bar Council has no such power.
The power of the State Bar Council is merely to prepare and revise from time to time the electoral roll subject to the rules made by the Bar Council of India concerning the qualifications and conditions aforesaid.
This interpretation of Section 3(4) of the Act finds ample support from the very special and specific provision contained in section 49(1)(a) providing for the general power of the Bar Council of India in these terms: "49.
(1) The Bar Council of India may make rules for discharging its functions under this Act, and, in particular, such rules may prescribe 957 (a) the conditions subject to which an advocate may be entitled to vote at an election to the State Bar Council including the qualifications or disqualifications of voters, and the manner in which an electoral roll of voters may be prepared and revised by a State Bar Council;" Great reliance was placed on behalf of the appellants on the concurrent power of the State Bar Council and the Bar Council of India engrafted in section 15 of the .
It is true that the power to make rules conferred by section 15 is both for the Bar Council of India as also for the Bar Council of a State.
But no provision of section 15 can override the specific provision made in section 3(4) and section 49(1)(a) of the Act.
Sub section (1) of section 15 says "A Bar Council may make rules to carry out the purposes of this Chapter" which means Chapter II including section 3.
But the power to prescribe qualifications and conditions entitling an advocate to vote at an election being that of the Bar Council of India section 15(1) cannot be interpreted to confer power on the State Bar Council to make rules regarding the qualifications and conditions aforesaid.
The relevant words of sub section 2(a) of section 15 are the following: "In particular, and without prejudice to the generality of the foregoing power, such rules may provide for : (a) . . the preparation and revision of electoral rolls and the manner in which the results of election shall be published.
" The State Bar Council can frame rules for the preparation and revision of electoral rolls under section 15(2)(a).
That would be in conformity with the latter part of sub section (4) of section 3 also.
But in the garb of making a rule for the preparation and revision of the electoral rolls it cannot prescribe disqualifications, qualifications or conditions subject to which an advocate whose name occurs in the State roll can find place in the electoral roll resulting in his deprivation of his right to vote at the election.
In the instant case under the impugned proviso failure on the part of an advocate to submit the required declaration within the specified time entitles the State Bar Council to exclude his name from the electoral roll.
Such a thing was squarely covered by the exclusive power conferred on the Bar Council of India under sections 3(4) and 49(1)(a) of the .
The State Bar Council had no such power.
958 Sub section
(3) of section 15 says: "No rules made under this section by a State Bar Council shall have effect unless they have been approved by the Bar Council of India.
" Introduction of the impugned proviso in Rule 3(j) of the Delhi Bar Council Election Rules was approved by Resolution No. 18 of 1978 passed by the Bar Council of India.
Any rule made by the State Bar Council cannot have effect unless it is approved by the Bar Council of India.
But the approval of the Bar Council of India can make the rule made by the State Bar Council valid and effective only if the rule made is within the competence of the State Bar Council, otherwise not.
Mere approval by the Bar Council of India to a rule ultra vires the State Bar Council cannot make the rule valid.
Nor has it the effect of a rule made by the Bar Council of India.
Making a rule by the Bar Council of India and giving approval to a rule made by the State Bar Council are two distinct and different things.
One cannot take the place of the other.
We, therefore, hold that the impugned proviso to Rule 3(j) of the Delhi Bar Council Election Rules is ultra vires and invalid and the electoral roll prepared by the Delhi Bar Council on the basis of the same resulting in the exclusion of the names of about 2,000 advocates from the said roll was not valid in law.
We are further of the opinion that the whole election was invalid on that account and it could be challenged as such in a writ petition.
It was not a case of challenging the preparation of the electoral roll on the factual basis of wrong exclusion of a few names.
For the said purpose Rule 4 occurring in Chapter I of the Bar Council of India Rules could come into play.
But here, because of the invalidity of the Rules itself, the preparation of the electoral roll was completely vitiated a matter which cannot be put within the narrow limit of the said rule.
The illegal preparation of the electoral roll by the Delhi Bar Council on the basis of the invalid proviso to Rule 3(j) goes to the very root of the matter and no election held on the basis of such an infirmity can be upheld.
There is no question of the result being materially affected in such a case.
The contesting respondents could not be defeated in their writ petitions on the ground of estoppel or the principle that one cannot approbate and reprobate or that they were guilty of laches.
In the first instance some of the contesting respondents were merely voters.
Even Shri Surjeet Singh in his writ petition claimed to be both a candidate and a voter.
As a voter he could challenge the election even 959 assuming that as a candidate after being unsuccessful he was estopped from doing so.
But to be precise, we are of the opinion that merely because he took part in the election by standing as a candidate or by exercise of his right of franchise he cannot be estopped from challenging the whole election when the election was glaringly illegal and void on the basis of the obnoxious proviso.
There is no question of approbation and reprobation at the same time in such a case.
A voter could come to the High Court even earlier before the election was held.
But merely because he came to challenge the election after it was held it cannot be said that he was guilty of any laches and must be non suited only on that account.
There is no substance in the last submission made on behalf of the appellants.
The manner of resolving disputes as to the validity of election is provided for in Rule 34 of the Delhi Bar Council Election Rules.
This is not an appropriate and adequate alternative remedy to defeat the writ petitioner on that account.
Firstly, no clause of Rule 34 covers the challenging of the election on the ground it has been done in this case.
Secondly, the Election Tribunal will not be competent to declare any provision of the Election Rules ultra vires and invalid.
Our attention was specifically drawn to clause (8) of Rule 34 which says: "No petition shall lie on the ground that any nomination paper was wrongly rejected or the name of any voter was wrongly included in or omitted from the electoral roll or any error or irregularity which is not of a substantial character.
" As we have said above, it is not a case where the name of any voter was wrongly omitted from the electoral roll but it is a case where the preparation of the whole electoral roll was null and void because of the invalidity of the impugned proviso.
We now proceed to refer to some relevant decisions of the High Courts and of this Court cited at the Bar in support of some of the points discussed above.
Mudholkar J., delivering the leading and the majority judgment of a Full Bench of the Nagpur High Court in Kanglu Baula Kotwal & another vs Chief Executive Officer, Janpad Sabha, Durg and others, rejected the plea of estoppel to challenge the election at page 58, para 25 in these terms: "As regards the petitioners who were also candidates at the elections but were defeated, the learned counsel said that 960 those who took their chances at the elections and failed should not now be allowed to challenge elections of their opponents on the ground that the electoral rolls were defective.
The plea is in substance one of estoppel.
There can be no question of any estoppel, because it cannot be said that the position of the other side has in any way altered by reason of something done or not done by the petitioners.
" We are of the view that neither the principle of estoppel nor the principle of approbation and reprobation can be pressed into services in this case.
In Chief Commissioner, Ajmer vs Radhey Shyam Dani the respondent before the Supreme Court had filed a writ petition in the Court of Chief Commissioner of Ajmer challenging the validity of the notification directing the holding of the election of the Ajmer Municipality and the electoral roll.
This challenge was made before the election was held.
Since the electoral roll prepared was found to be invalid as it was prepared in accordance with some invalid rules, a Constitution Bench of this Court upheld the decision of the Chief Commissioner.
At page 75, Bhagwati J., speaking for the Court said: "It is of the essence of these elections that proper electoral rolls should be maintained and in order that a proper electoral roll should be maintained it is necessary that after the preparation of the electoral roll opportunity should be given to the parties concerned to scrutinize whether the persons enrolled as electors possessed the requisite qualifications.
Opportunity should also be given for the revision of the electoral roll and for the adjudication of claims to be enrolled therein and entertaining objections to such Enrollment.
Unless this is done, the entire obligation cast upon the authorities holding the elections is not discharged and the elections held on such imperfect electoral rolls would acquire no validity and would be liable to be challenged at the instance of the parties concerned.
It was in our opinion, therefore, necessary for the Chief Commissioner to frame rules in this behalf, and in so far as the rules which were thus framed omitted these provisions they were defective." Finally at pages 76 and 77 it was said: "If Rules 7 and 9 above referred to were intended to form a complete code for the finalisation of the electoral roll 961 of the Municipality they did not serve the intended purpose and were either inconsistent with the provisions of section 30, sub section
(2), of the Regulation or were defective in so far as they failed to provide the proper procedure for taking of the steps hereinabove indicated for finalising the electoral roll of the Municipality.
If that was the true position the electoral roll of the Municipality which has been authenticated and published by the Chief Commissioner on August 8, 1955 was certainly not an electoral roll prepared in accordance with law on the basis of which the elections and poll to the Ajmer Municipal Committee could be held either on September 9, 1955, or at any time thereafter." In the instant case the electoral roll was prepared on the basis of a rule which has been found to be void and ultra vires.
That being so, even though the contesting respondents came to challenge the election after it was held, they could do so because of the gravity of the infraction of the law in the preparation of the electoral roll.
Dani 's case (supra) was followed by the Patna High Court in two decisions.
In Parmeshwar Mahaseth and others vs State of Bihar and others and Umakant Singh and others vs Binda Choudhary and others.
After quoting a passage at page 153 from Dani 's case Kanhaiya Singh J., said in Parmeshwar Mahaseth 's case at the same page in paragraph 14 thus: "It was urged by the learned Government Advocate that the election cannot be disputed except by an election petition, as laid down in R. 62 of the Election Rules.
He submitted that petitioner 9, had already filed an election petition after the presentation of this writ application.
This contention is not valid.
What is challenged here is not the election of a particular candidate, but the validity of the entire election, because of the violation of the essential provisions of the Election Rules and the Act.
I think, R. 62 provides for a case where a person challenges the election of a particular candidate.
I would overrule the objection.
" In Umakant 's case the Court quoted the passage from Dani 's case from page 461 and finally expressed the view in paragraph 12 at page 462 in these terms: "Mr. Shankar Kumar appearing for respondents 6 and 7 submitted that the election ought to have been challenged 962 by following the machinery provided in rule 148 of the rules, and this Court, in exercise of its power under Article 226 of the Constitution, should not interfere with the election when a special machinery was provided for challenging it.
I am unable to accept this argument.
It is the well settled view of the Court that if the entire election is challenged as having been held under statutes or statutory rules which are invalid or by committing illegalities which make the entire election void, it can be quashed by grant of a writ in the nature of certiorari." A Full Bench of the Punjab High Court in Dev Prakash Balmukand vs Babu Ram Rewti Mal and others had occasion to consider this question and in that connection at page 434 Dulat J., said in paragraph 15: "Everybody, of course, agrees that, if the very foundation of the election, namely, the electoral roll is illegal, no election on its basis can proceed or be allowed to stand, but that does not mean that any kind of defect in the roll, however technical in its nature, will suffice to reach such a conclusion.
" It would thus be seen that it depends upon the nature and the intensity of the error committed in the preparation of the electoral roll and its effect on the whole election for deciding the question as to whether a writ petition would be maintainable or not.
In Ramgulam Shri Baijnath Prasad vs The Collector, District Guna and others Oza J., delivering the judgment of the Division Bench stated in para 17 at page 152 thus: "It was also contended that the petition was not filed immediately, but has been filed after the elections were over.
As regards the question of estoppel we had already considered it and found that the petition under article 226 cannot be disposed on the question of estoppel.
As regards delay, it is sufficient to state that it could not be said that the petition was unduly delayed.
Apart from it, it is also clear that an election held on the basis of rolls which have not been prepared in accordance with law, the petition cannot be dismissed merely on the ground of delay.
" 963 The Madhya Pradesh High Court has taken a similar view in the case of Bhupendra Kumar Jain vs Y. section Dharmadhikari and others wherein it was held that the entire election could be challenged on the basis of certain types of illegalities committed in holding it.
Shri Bhoop Singh, an Advocate and a member of the Bar Association at Chandigarh was a candidate to the Bar Council of Punjab & Haryana.
After being unsuccessful he challenged the election by filing a writ petition in the High Court.
The full Bench of the Punjab & Haryana High Court in Bhoop Singh vs Bar Council of Punjab and Haryana through its Secretary and others dismissed the writ petition on the particular facts of that case.
Yet the view expressed at page 43 in para 9 was: "I am extremely doubtful whether the nature of the relief which the petitioner claims here, namely the setting aside of the whole of the election and the ordering of a repoll could be claimed by way of an election petition under rule 34(1).
No provision in the said rule was brought to our notice which in express terms empowers or warrants the setting aside of the whole of the election (in contradistinction to the election of individual candidates) or to direct a repoll.
In any case it is well settled that the existence of an alternative remedy is not an absolute legal bar to the issuance of a writ".
Reliance was placed for the appellants upon the decision of this Court in K. K. Shrivastava etc.
vs Bhupendra Kumar Jain and others that because of rule 34(8) of the Delhi Bar Council Election Rules the writ petitions ought to have been held to be not maintainable.
It would be noticed from the facts of that case that an election petition had already been filed.
About four months later a writ petition was also filed to challenge the election.
At page 1704, column 1 Krishna Iyer J., speaking for the Court said: "One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off.
This is more particularly so where the dispute relates to an election.
Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms".
964 But he added: "While we need not in this case go to the extent of stating that if there are exceptional or extraordinary circumstances the Court should still refuse to entertain a writ petition." Finally the view expressed in K. K. Shrivastava 's case is: "There is no foundation whatever for thinking that where the challenge is to an "entire election" then the writ jurisdiction springs into action.
On the other hand the circumstances of this case convince us that exercise of the power under article 226 may be described as mis exercise.
" We may add that the view expressed by some of the High Courts in the cases referred to above that merely because the whole election has been challenged by a writ petition, the petition would be maintainable in spite of there being an alternative remedy being available, so widely put, may not be quite correct and especially after the recent amendment of article 226 of the Constitution.
If the alternative remedy fully covers the challenge to the election then that remedy and that remedy alone must be resorted to even though it involves the challenge of the election of all the successful candidates.
But if the nature and the ground of the challenge of the whole election are such that the alternative remedy is no remedy in the eye of law to cover the challenge or, in any event, is not adequate and efficacious remedy then the remedy of writ petition to challenge the whole election is still available.
In the present case we have pointed out above that the Election Tribunal would have found itself incompetent to declare the proviso to Rule 3(j) of the Delhi Bar Council Election Rules ultra vires and that being so the alternative remedy provided in Rule 34(8) was no remedy at all.
Appellants heavily relied upon an unreported decision of the Calcutta High Court in Suryya Kumar Ray vs The Bar Council of India & Ors.
The challenge to the election to the Bar Council of West Bengal was almost on grounds which are similar to those in the present case.
The Calcutta High Court upheld the validity of the Rule and the election held on the basis of electoral roll prepared in accordance with that Rule and dissented from the view of the Gujarat High Court in Harish Sambhu Prasad vs Bar Council of Gujarat.
965 The learned Judge said with reference to the decision of the Gujarat High Court thus: "It appears to me that this decision will not be of much assistance to the petitioner in the instant case in as much as the electoral rules which are before me have duly been approved by the Bar Council of India itself.
Such approval confers upon these rules the authority and sanction of the Bar Council of India and may be deemed to be the rules framed by the Bar Council of India.
" The enunciation of the law as made above, in our opinion, is not correct.
We have held to the contrary.
For the reasons stated above, we dismiss all the appeals but make no order as to costs in any of them.
S.R. Appeals dismissed.

summary:
In the year 1978, a proviso was added to Rule 3(j) of the Bar Council of Delhi Election Rules, 1968 with the approval of the Bar Council of India in accordance with the requirement of Sub section (3) of section 15 of the .
In accordance with that proviso a copy of the declaration form was sent on 14th June, 1978 to the Advocates whose names found place in the State roll of Advocates asking them to return the declaration form duly filled up and signed within the specified period.
A publication to this effect was also made in some newspapers viz. Hindustan Times, Indian Express, Statesman etc.
The last extended date for the submission of the declaration forms was 14th September, 1978 and the electoral roll was finally published on the 16th September, 1978 excluding the names of about 2,000 Advocates who had failed to submit such declaration forms.
On the basis of the electoral roll so prepared, elections to the Bar Council of Delhi was held on the 17th November, 1978.
The total number of advocates on the Advocates roll was 5,000 and odd out of which the names of about 3,000 and odd only were included in the electoral roll in accordance with the proviso to Rule 3(j) of the Election Rules of the Bar Council of Delhi.
The results of the election were declared on the 19th November, 1978.
The names of the 15 persons who were declared elected were published in the Gazette on the 22nd November, 1978.
Thereafter the respondents in these appeals filed writ petitions challenging the whole election by attacking the validity of the proviso to Rule 3(j).
The Delhi High Court allowed the three writ petitions taking the view, (i) so far as the qualifications to be possessed by and the conditions to be satisfied by an advocate before being brought on to the Electoral Roll was concerned only the Bar Council of India has the competence to make the rules under section 3(4) and section 49(1)(a) of the and the State Bar Council has no power at all to make a rule on this subject; (ii) the plea of estoppel against Surjeet Singh does not arise, (iii) rank injustice has been done to the petitioners because more than 2000 advocates were wrongfully disqualified being brought on the Electoral Roll.
This has materially affected the result of the elections; and (iv) Rule 3(j) of the Bar Council of Delhi Election Rules, 1968 is in excess of the rules making power of Bar Council of Delhi.
Dismissing the appeals by special leave the Court, ^ HELD: 1.
The impugned proviso to Rule 3(j) of the Delhi Bar Council of Election Rules is ultra vires and invalid and the electoral roll prepared by 947 the Delhi Bar Council on the basis of the same resulting in the exclusion of the names of about 2000 advocates from the said roll was not valid in law.
[958D E] (b) The whole election was invalid on that account and it could be challenged as such in a writ petition.
It was not a case of challenging the preparation of the electoral roll on the factual basis of wrong exclusion of a few names.
For the said purpose Rule 4 occurring in Chapter I of the Bar Council of India Rules could come into play.
But here, because of the invalidity of the Rules itself, the preparation of the electoral roll was completely vitiated a matter which cannot be put within the narrow limit of the said rule.
[958E F] However, it depends upon the nature and the intensity of the error committed in the preparation of the electoral roll and its effect on the whole election for deciding the question as to whether a writ petition would be maintainable or not.
[862E F] Chief Commissioner, Ajmer vs Radhey Shyam Dani, ; ; Parmeshwar Mahaseth and Ors.
vs State of Bihar and Ors.
, ; Umakant Singh and Ors.
vs Binda Choudhary and Ors., AIR 1965 Patna 459; Dev Prakash Balmukand vs Babu Ram Rewti Mal and Ors.
AIR 1961 Punjab 429; Ramgulam Shri Baijnath Parsad vs The Collector, District Guna and Ors., and Bhoop Singh vs Bar Council of Punjab and Haryana through its Secretary and Ors., AIR 1976 M.P. 110; referred to.
(c) The illegal preparation of the electoral roll by the Delhi Bar Council on the basis of the invalid proviso to Rule 3(j) goes to the very root of the matter and no election held on the basis of such an infirmity can be upheld.
There is no question of the result being materially affected in such a case.
[958F G] (d) The contesting respondents could not be defeated in their writ petitions on the ground of estoppel or the principle that one cannot approbate and reprobate or that they were guilty of laches.
In the first instance some of the contesting respondents were merely voters.
Even Sri Surjeet Singh in his writ petition claimed to be both a candidate and a voter.
As a voter he could challenge the election even assuming that as a candidate after being unsuccessful he was estopped from doing so.
But, merely because he took part in the election by standing as a candidate or by exercise of his right of franchise he cannot be estopped from challenging the whole election when the election was glaringly illegal and void on the basis of the obnoxious proviso.
There is no question of approbation and reprobation in such a case.
A voter could come to the High Court even earlier before the election was held.
But merely because he came to challenge the election after it was held it cannot be said that he was guilty of laches and must be non suited on that account.
[958F H, 959A B] Kanglu Beula Kotwal and Anr.
vs Chief Executive Officer, Janpad Sabha, Durga and Ors., ; distinguished.
(e) The manner of resolving disputes as to the validity of election is provided for in Rule 34 of the Delhi Bar Council Election Rules.
This is not an 948 appropriate and adequate alternative remedy to defeat the writ petitioner on that account.
Firstly, no clause of Rule 34 covers the challenging of the election on the ground that it has been done in this case.
Secondly, the Election Tribunal will not be competent to declare any provision of the Election Rules ultra vires and invalid.
It is not a case where the name of any voter was wrongly omitted from the electoral roll but it is a case where the preparation of the whole electoral roll was null and void because of the invalidity of the impugned proviso.
[959C D, E F] Ramgulam Shri Baijnath Pd.
vs The Collector, Dist.
Guna and Ors., and Bhupendra Kumar Jain vs Y. section Dharmadhikari and Ors., AIR 1976, M.P. 110; referred to.
Bhoop Singh vs Bar Council of Punjab and Haryana through its Secretary and Ors., AIR 1977 Pb. & Haryana; quoted with approval.
K. K. Srivastava etc.
vs Bhupendra Kumar Jain and Ors., AIR 1977 S.C. 1703; distinguished.
If the alternative remedy fully covers the challenge to the election then that remedy and that remedy alone must be resorted to even though it involves the challenge of the election of all the successful candidates.
But if the nature and the ground of the challenge of the whole election are such that the alternative remedy is no remedy in the eye of law to cover the challenge or, in any event, is not adequate and efficacious remedy, then the remedy of writ petition to challenge the whole election is still available.
In the present case the Election Tribunal would have found itself incompetent to declare the proviso to Rule 3(j) of the Delhi Bar Council Election Rules ultra vires and that being so the alternative remedy provided in Rule 34(8) was no remedy at all.
[964D F] Suryya Kumar Ray vs The Bar Council of India and Ors.
Matter No. 304 of 1976 decided on December 17, 1976, overruled.
Harish Sambhu Prasad vs Bar Council of Gujarat, Special Civil Application Nos. 542 and 551 of 1969; approved.
So long the existing rules framed by the Bar Council of India remained in vogue all persons whose names are on the State Roll are entitled proprio vigore to be put on the electoral roll.
Sections 24(e) (1) and 26A of the read with Rules 1, 2 and 3 of Chapter I of of the Bar Council of India Rules make this position clear.
[954A B, D H] 4.
On a plain reading of sub sections 4 of section 3 of the , it is manifest that under the Act the qualifications and conditions entitling an advocate to vote at an election or for being chosen as a member of the State Bar Council has to be prescribed by the Bar Council of India.
The State Bar Council has no such power.
The power of the State Bar Council is merely to prepare and revise from time to time the electoral roll subject to the Rules made by the Bar Council of India concerning the qualifications and conditions aforesaid.
This interpretation of Section 3(4) of the Act finds ample support from the very special and specific provision contained in section 49(1) (a) providing for the general power of the Bar Council of India.
[956F H] 949 5.
It is true that the power to make rules conferred by section 15 is both for the Bar Council of India as also for the Bar Council of a State.
But no provision of section 15 can override the specific provision made in section 3(4) and section 49(1)(a) of the Act.
Sub section (1) of section 15 says "A Bar Council may make rules to carry out the purposes of this Chapter" which means Chapter II including section 3.
But the power to prescribe qualifications and conditions entitling an advocate to vote at an election being that of the Bar Council of India section 15(1) cannot be interpreted to confer power on the State Bar Council to make rules regarding the qualifications and conditions aforesaid.
[957B D] The State Bar Council can frame rules for the preparation and revision of electoral rolls under section 15(2)(a).
That would be in conformity with the latter part of sub section (4) of section 3 also.
But in the garb of making a rule for the preparation and revision of the electoral rolls it cannot prescribe disqualifications, qualifications or conditions subject to which an advocate whose name occurs in the State roll can find place in the electoral roll resulting in his deprivation of his right to vote at the election.
In the instant case under the impugned proviso failure on the part of an advocate to submit the required declaration within the specified time entitles the State Bar Council to exclude his name from the electoral roll.
Such a thing was squarely covered by the exclusive power conferred on the Bar Council of India under sections 3(4) and 49(1)(a) of the .
The State Bar Council had no such power.
[957F H] 6.
The approval of the Bar Council of India can make the rule made by the State Bar Council valid and effective only if the rule made is within the competence of the State Bar Council otherwise not.
Mere approval by the Bar Council of India to a rule ultra vires the State Bar Council cannot make the rule valid.
Nor has it the effect of a rule made by the Bar Council of India.
Making a rule by the Bar Council of India and giving approval to a rule made by the State Bar Council are two distinct and different things.
One cannot take the place of the other.
[958B D]


judgement:
Civil Appeal No. 2109 of 1979.
Appeal by Special Leave from the Judgment and Order dated 7 5 1979 of the Allahabad High Court in Civil Revision No. 900 of 1978.
A.K. Sen, B.S. Banerjee and R.N. Govind for the Appellant.
J.P. Goyal and S.K. Jain for Respondent.
The Judgment of the Court was delivered by KRISHNA IYER, J.
A brief back drop leads to the short point in issue.
Chronic scarcity of accommodation in almost every part of the country has made 'eviction ' litigation explosively considerable, and the strict protection against ejectment, save upon restricted grounds, has become the policy of the State.
Rent Control Legislation to give effect to this policy exists everywhere, and we are concerned with one such in the State of U.P. (U.P. Act 13 of 1972).
The legislature found that rent control law had a chilling effect on new building construction, and so, to encourage more building operations, amended the statute to release, from the shackles of legislative restriction, 'new constructions ' for a period of ten years.
So much so, a landlord who had let out his new building could recover possession without impediment if he instituted such proceeding within ten years of completion.
The respondent is a landlady who claims to fill the bill in this setting and seeks to evict the appellant tenant untrammeled by the provisions of the Act.
She has succeeded in both the courts below and the appellant challenges the order as illegal and vitiated by a basic error of approach.
We should have made short work of it had there not been the need for this Court to set the sights right in the class, of litigation where exemption from the operation of the Act is claimed on the ground that the construction is new and the case is filed within the ten year moratorium.
If the exemption is erroneously liberalised to frustrate the principal measure by failure to stick to basic legal principles, the jurisprudence of rent control may become too jejune to be socially effective.
That is why we examine a few fundamentals here in the decisional process of this class of cases.
The area of controversy, factual and legal, is small.
The respondent purchased shop No. 66 in the city of Jhansi in 1969 from one Brij Mohan (DW2), occupied the first floor and allowed the appellant, as tenant, to occupy the ground floor in 1970 on a lease deed which recited that the building was erected in 1965.
In 1975 the present eviction action was instituted on the basis that the building was new, that the Act did not debar eviction of new constructions put up within ten years of the suit and so a decree was inevitable.
1037 The tenant resisted the claim on the plea that the building was constructed 50 years ago.
The trial court negatived the defence and decreed eviction and this was upheld by the High Court.
If it were a bare finding of fact we should not have reopened it, but Shri A.K. Sen argues that fundamental flaws in the understanding of the law have vitiated the decision which, if left uncorrected, will spell a new class of litigation for eviction by easy resort to the 'new construction expedient.
Such possible public mischief persuades us to have a closer look at the Act to the extent relevant.
Shri J.P. Goel rightly reminds us that in the normal course the appeal must be dismissed as concluded by findings of fact.
But we will probe the matter further to explore whether there is any substance in Shri A.K. Sen 's argument of fundamental failure bearing on the legality of the conclusions.
The anatomy of the Act is substantially the same as that of other similar legislations.
The most important feature we have to notice is the exemption from application of the provisions of the Act for the period of ten years in respect of new constructions.
Section 2(2) is relevant in this context and runs as follows: Except as provided in sub section (5) of section 12 sub section (1A) of section 21, sub section (2) of section 24, sections 24A, 24B, 24C or sub section (3) of section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed.
xxx xxx xxx Explanation I.
For the purposes of this sub section, (a) The construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction, and in the case of a building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time: Provided that there may be different dates of completion of construction in respect of different parts of a building which are either designed as separate units or are occupied 1038 separately by the landlord and one or more tenants or by different tenants.
(b) 'construction ' includes any new constructions in place of an existing building which has been wholly or substantially demolished; (c) Where such substantial addition is made to an existing building, that the existing building becomes only a minor part thereof, the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition.
This sub section and its construction is decisive of the fate of the appeal.
Nothing in the rent control legislation shall apply to a building "during a period of ten years from the date on which its construction is completed.
" The first thing that falls to be emphasised is that in regard to all buildings the Act applies save where this exemption operates.
Therefore, the landlord who seeks exemption must prove that exception.
The burden is on him to make out that notwithstanding the rent control legislation, his building is out of its ambit.
It is not for the tenant to prove that the building has been constructed beyond a period of ten years.
But it is for the landlady to make out that the construction has been completed within ten years of the suit.
This is sensible not merely because the statute expressly states so and the setting necessarily implies so, but also because it is the landlady who knows best when the building was completed, and not the tenant.
As between the two, the owner of the building must tell the court when the building was constructed, and not the tenant thereof.
Speaking generally, it is fair that the onus of establishing the date of construction of the building is squarely laid on the landlord, although in a small category of cases where the landlord is a purchaser from another, he will have to depend on his assignor to prove the fact.
Firstly, therefore, we must examine whether the respondent has made out her case for exemption from the operation of the Act based on the vital fact that the building has been completed only within ten years of the suit.
The second thing we have to remember is Explanation 1 quoted above.
When is a building deemed to have been completed? An analysis of Explanation 1 to s.2(2) of the U.P. Act indicates: (1) Where a building has not been assessed, it is the date on which the completion was reported to, or other wise recorded by the local authority having jurisdiction.
1039 (2) Where a building has been assessed, it is the date on which the first assessment comes into effect.
Provided that if the date on which the completion was reported to, or otherwise recorded by, the local authority is earlier than the date of the first assessment, the date of completion will be such earlier date.
(3) Where there is no report, record or assessment, it is the date of actual occupation for the first time (not being an occupation for the purpose of supervising the construction or guarding the building under construction ).
It is common case that Shop Nos. 65 and 66 were owned by a common owner, Shri Brij Mohan, DW2.
He sold only Shop No. 66 to the respondent.
So, there is no doubt, that there was an existing building, Shop No. 66, long prior to the ten year period mentioned in the statute.
According to the testimony of Shri Brij Mohan, DW2, the old construction continued, but certain additions and remodelling were done.
He had submitted a plan to the local authority indicating the original construction and the proposed additions, and that is marked as Exhibit in the case.
This shows the existence of a prior building, the proposal being for addition or partial reconstruction and not for total demolition.
If we go by the plan, it is not possible to conclude automatically that there is a new construction.
If we go by Brij Mohan 's evidence, the owner of the building at the relevant time, we cannot necessarily hold that the existing building has been substantially demolished and reconstructed.
Indeed, his evidence is to the effect that the construction such as was made was beyond the 10 year period.
Unfortunately, it is not possible for the purchaser respondent or the tenant appellant to give direct testimony about the time of the construction or the nature of the construction vis a vis Explanation (b) or (c).
The best testimony is the municipal records about the completion of the building and the verification by the municipal authorities as to whether a new construction has come into being or an old construction has been remodelled and, if so, when exactly the completion took effect.
The municipal assessment record produced in the court merely state "increased assessment".
It may suggest the existence of an assessment which has been increased or it may perhaps be argued that when the building was reconstructed a new assessment was made which was more than the previous assessment and, therefore, 1040 was described as increased assessment.
The oral evidence in the case, apart from what we have set out, is inconsequential, being second hand testimony.
Even the recital in the rent deed that there was a new construction is 1965 66 is by the appellant and the respondent, neither of whom has any direct knowledge about the construction.
Of course, an admission by the appellant is evidence against him but an admission is not always conclusive especially in the light of the municipal records such as are available and the burden such as has been laid by the statute.
Viewed in this perspective, the failure of the trial court specifically to record when the building was completed and what was the extent of re building, whether it was a case of total demolition and reconstruction or such extensive additions as to push the existing building into a minor part, becomes fatal.
These basic issues have failed to receive any attention from the courts below.
A finding recorded on speculative basis is no finding and that is the fate of the holding in the present case.
We do not want to dwell on the evidence in greater detail because we propose to remit the case to the trial court (Court of the First Additional District Judge, Jhansi).
It is quite conceivable that the municipal records bearing on the completion of the construction may throw conclusive light, whatever might have been the original proposal in the plan submitted.
It is perfectly possible that on a view of the earlier construction, vis a vis the completed new building, the former may form but a small part.
It may also be that the implication of the expression "increased assessment" may be explained with reference to earlier assessment records in the municipality.
Moreover, whenever a new building is completed, a report has statutorily to be made and only on a completion survey and certificate, occupation is ordinarily permitted.
These records must also be available in the office of the local authority.
The statute makes it clear that reliance upon the municipal records, rather than on the lips of witnesses, is indicated to determine the date of completion and the nature of the construction.
This statutory guideline has been wholly overlooked and the burden lying on the landlord has not been appreciated.
The result is that the eviction order has to be demolished.
It may still be open to the landlady respondent to make out his case by producing better municipal evidence in the light of what we have indicated.
We do not wish to deny the landlady this opportunity because the trial court has not approached the problem from the correct legal angle.
We set aside the judgment of the courts below and remit the case for hearing to the trial court.
The trial court 1041 will give an opportunity to both sides to adduce fresh evidence, documentary and oral, to make out the ground of exemption from the application of the Act.
Of course, when the entire evidence is before the court, the onus of proof will play a lesser role.
Before parting with the case, we wish to notice a submission made by Shri Goel that the landlady 's son was an unemployed engineer who needed the premises for personal requirement.
Even if the Act applies, it is open to the landlady to make out any of the grounds under the Act for eviction.
To avoid prolixity and delay of the proceedings, we permit the trial court to allow the landlady, if she applies in that behalf, to plead on an alternative basis, for eviction on any of the specified grounds under the Act.
The appeal is allowed and the case remitted to the Court of the Addl.
District Judge, Jhansi for fresh disposal in the light of the observations made above.
S.R. Appeal allowed.

dataset_name: IN-Abs

summary:
The respondent landlady purchased shop No. 66 in the city of Jhansi in 1969 from one Brij Mohan (DW 2), occupied the first floor and allowed the appellant/tenant to occupy the ground floor in 1970 on a lease deed which recited that the building was erected in 1965.
In 1975, the respondent filed the ejection suit on the basis that the building was new, that the Act did not deter eviction of new constructions put up within ten years of the suit and so a decree was inevitable.
The appellant tenant resisted the claim on the plea that the building was constructed 50 years earlier.
The Trial Court negatived the defence and decreed eviction and this was upheld by the High Court.
Hence the appeal by special leave to this Court.
Allowing the appeal and remanding the matter to the Trial Court, the Court ^ HELD : 1.
In the normal course, no doubt the appeal must be dismissed as concluded by findings of fact.
To avoid possible public mischief through a new class of litigation for eviction by easy resort to the "new construction," expedient, interference under Article 136 of the Constitution is necessary.
[1037 A B] 2.Section 2(2) of the U.P. Act, uses the phrase "nothing in the rent control legislation shall apply to a building" during a period of ten years from the date on which its construction is completed.
In other words, in regard to all buildings the Act applies save where this exemption operates.
Therefore the landlord who seeks exemption must prove that exception.
The burden is on him to make out that notwithstanding the rent control legislation, his building is out of its ambit.
It is not for the tenant to prove that the building has been constructed beyond a period of ten years, but it is for the landlady to make out that the construction has been completed within ten years of the suit.
This is sensible not merely because the statute expressly states so and the setting unnecessarily implies so, but also because it is the landlady who knows best when the building was completed, and not the tenant.
As between the two, the owner of the building must tell the court when the building was constructed, and not the tenant thereof.
Speaking generally, it is fair that the onus of establishing the date of construction of the building is squarely laid on the landlord although in a small category of cases where the landlord is a purchaser from another, he will have to depend on his assignor to prove the fact.
[1038 C F] 3.
An analysis of Explanation 1 to section 2(2) of the U.P. Act indicates: (1) Where a building has not been assessed, it is the date on which the completion was reported to, or otherwise recorded by the local authority having jurisdiction.
[1038 G H] 1035 (2) Where a building has been assessed, it is the date on which the first assessment comes into effect.
Provided that if the date on which the completion was reported, to, or otherwise recorded by, the local authority is earlier than the date of the first assessment, the date of completion will be such earlier date.
[1039 A B] (3) Where there is no report, record or assessment, it is the date of actual occupation for the first time (not being an occupation for the purpose of supervising the construction or guarding the building under construction).
[1039 B C] Unfortunately, it is not possible for the purchaser respondent or the tenant appellant to give direct testimony about the time of the construction or the nature of the construction vis a vis Explanation (b) or (c).
The best testimony is the municipal records about the completion of the building and the verification by the municipal authorities as to whether a new construction has come into being or an old construction has been remodelled and, if so, when exactly the completion took effect.
It is quite conceivable that the municipal records bearing on the completion of the construction may throw conclusive light, whatever might have been the original proposal in the plan submitted.
It is perfectly possible that on a view of the earlier construction, vis a vis the completed new building the former may form but a small part.
It may also be that the implication of the expression "increased assessment" may be explained with reference to earlier assessment records in the municipality.
Moreover, whenever a new building is completed, a report has statutorily to be made and only on a completion survey and certificate, occupation is ordinarily permitted.
These records must also be available in the office of the local authority.
The statute makes it clear that reliance upon the municipal records rather than on the lips of witnesses, is indicated to determine the date of completion and the nature of the construction.
This statutory guideline has been wholly overlooked and the burden lying on the landlord has not been appreciated.
The result is that the eviction order has to be demolished.
[1039 F G, 1040 D G] In the instant case (i) the Municipal assessment record produced in the Court merely states "increased assessment".
It may suggest the existence of an assessment which has been increased or it may perhaps be argued that when the building was reconstructed a new assessment was made which was more than the previous assessment and, therefore, was described as increased assessment; (ii) the oral evidence is inconsequential being second hand testimony.
Even the recital in the rent deed that there was a new construction in 1965 66 is by the appellant and the respondent, neither of whom has any direct knowledge about the construction.
Of course, an admission by the appellant is evidence against him but an admission is not always conclusive especially in the light of the municipal records such as are available and the burden such as has been laid by the statute; and (iii) the failure of the trial Court specifically to record when the building was completed and what was the extent of rebuilding, whether it was a case of total demolition and reconstruction or such extensive additions as to push the existing building into a minor part, becomes fatal.
These basic issues have failed to receive any attention from the courts below.
A finding recorded on speculative basis is no finding and that is the fate of the holding.
[1039 G H, 1040 A D] 1036