judgement:
ivil Appeal No. 523 (NT) of 1975.
From the Judgment and Order dated 31.1.1974 of the High Court of Kerala in Tax Reference Case No. 52 of 1971.
T.S. Krishnamurthy Iyer and P.K. Pillai for the Appellant.
G. Vishwanath Iyer and N. Sudakaran for the Respondent.
The Judgment of the Court was delivered by KANIA, J.
This is an appeal against a judgment of a Division Bench of the High Court of Kerala under the provisions of the Kerala General Sales Tax Act, 1963 and Tax Reference Case No. 52 of 1971 filed pursuant to special leave granted by this Court.
The Appellant before us is the M/s Alwaye Agencies and the respondent is the Dy.
Commissioner of Agricultural Income tax and Sales Tax, Ernakulam.
The assessee firm was appointed as Distributor by the Travancore Cochin Chemicals Ltd. (referred to hereinafter as the "said company") to effect the sale of Sodium Hydrosulphite manufactured by the said company in the area covered by the Kerala State under an agreement entered into on 11th February, 1967.
The dispute pertains to the transactions which took place between 1st September, 1967 and 20th December, 1968 since it is an undisputed that the transactions upto the former date are not taxable.
It is common ground that the relations between the parties were governed throughout by the said agreement and that the parties adhered to the terms of the said agreement.
In view of this it would be desirable to examine that agreement at this stage.
As aforesaid, the agreement is dated 11th February, 1967.
Under the agreement, the assessee firm was appointed as Distributor for the aforesaid product manufactured by the company for the area covered by the Kerala State.
Clause 2 of the agreement provides that the distributorship was on an exclusive basis giving the distributor the right of sale of the product within the aforementioned area and that supplies would be made only direct to the distributor, Sub clause (a) of clause 2 further provides: 882 "However, when on the advice of the distributor bulk supplies are effected in waggon load or lorry load lots the Company may effect supplies direct to the consumer, provided that the distributor arranges the payment as per the clause hereinafter mentioned and also takes the responsibility to bear entirely the resultant effects and risks from effecting such direct despatches.
" Sub clause (b) of the said clause provides that the company reserves the right to effect the sale of Sodium Hydrosulphite to anybody and anywhere in India direct.
Under Clause 4, the price which the distributor would be entitled to charge to the consumer was fixed by the company and it was provided that the distributor will sell the materials to the clients or consumers at the said price plus certain costs incurred by the distributor.
Cluase 6 provides that the said company would grant the distributor a rebate of 3% on the ex factory selling price, which the company was entitled to determine as aforesaid.
This rebate was liable to be paid to the distributor only at the end of the month when the statement of the account would be settled.
Under Clause 7, the distributor was liable to guarantee the minimum off take of the said product.
Clause 8 of the agreement provides for mode of payment by the assessee (distributor) to the said company, and very briefly stated, it provides that the assessee would arrange for effecting payment either in cash or by Demand draft payable at par, or, alternatively, would open an irrevocable letter of credit in favour of the said company negotiable against R/R or other documents of despatch of goods.
It is provided that the letter of credit would cover the value of goods as well as charges of transport for booking the goods to destination station, Sales tax and other expenses including cost of insurance, if any, effected at the distributor 's request.
An alternative mode of the payment is provided to the effect that the assessee as distributor must remit 10% of the full value by Demand Draft and retire the documents of despatch of goods sent to the assessee through bank for collection from the bank.
Clause 8 further provides if the documents sent by the said company are not retired within the stipulated time, interest would be payable by the distributor on the amount due at the rate of 12% per annum.
The clause also makes it clear that if the second mode of payment is adopted by the assessee, consignments would be insured by the said company against transit risk and the insurance charges would have to be borne by the assessee.
It may be noted at this stage that the Tribunal has found as a fact that in respect of the said transactions 883 from 1st September, 1967 to 20th December, 1968, the invoices were prepared by the said company in the names of the consumers of goods and the goods were consigned to the destinations through public carriers booked "self".
The transport bills were endorsed and handed over by the said company to the assessee.
From 20th December, 1968, goods were consigned to the destination showing the assessee as consignor.
But we are not concerned with the period from 20th December, 1968.
In the assessment of the assessee for the period 1967 68 under the Kerala General Sales Tax Act, 1963, the final assessment was initially completed on 27th September, 1968 and a turnover of Rs.70,952.61 as reported by the assessee was accepted and tax levied on that basis.
Thereafter, it was alleged by the Assessing Authority that the transactions in the aforesaid period, which had taken place in the manner set out earlier, had been wrongly excluded from the turnover reported by the assessee in the return and hence that turnover has escaped assessment.
The contention of the assessee that these transactions did not constitute sales by the said company to the assessee was not accepted and hence it was held by the Assessing Officer that the said turnover was liable to be included in the taxable turnover of the assessee, as escaped turnover.
An appeal preferred by the assessee to the Appellant Assistant Commissioner was dismissed.
In a Second Appeal to the Tribunal, the Tribunal took the view, by majority, that the aforesaid transactions had taken place directly between the said company and the consumers and the assessee was merely an agent of the company in respect thereof.
The Tribunal allowed the appeal and directed the aforesaid transactions to be excluded from the taxable turnover of the assessee.
On a revision to the High Court under Section 41 of the said Act, the Division Bench of the High Court took the view that the Tribunal was wrong in coming to the conclusion that the assessee was acting only as an Agent in respect of the aforesaid transactions between the said company and the consumers and allowed the Revision Application.
The Division Bench of the High Court considered several cases which were cited before the Division Bench and held that the test to determine whether there is a sale or not is to find out whether there is transfer of property.
It further pointed out that the question whether there has been transfer of property must necessarily depend upon an appreciation of the rights and obligations of the parties under the contract.
If the property is transferred, unless there is a specific stipulation to the contrary, any risk of loss or injury to the goods would, thereafter, be not in the seller but in the buyer.
They further pointed out that the delivery may be either to the distributor himself or to his 884 nominee; the nominee could be the person whose orders are booked by the distributor.
They pointed out that in the present case even when the goods were despatched by the said company to the address of the customers, whose orders were booked by the distributor, namely, the assessee, the documents of title were not delivered to the customers, but handed over to the distributor on receipt of price, or the documents of title were endorsed in favour of the distributor and sent through the banks to be honoured by the distributor by payment.
In such cases, where there was some time lag between the despatch of goods and the entrustment of documents of title on receiving payment through the bank, care was taken to stipulate that the risk would be covered by insurance which would be at the cost of the distributor.
The Division Bench further pointed out that in the said agreement, the distributor had not been referred to as "Agent" but as "Distributor" and that this was also significant although not conclusive.
It was on the basis of these conclusions that the High Court reversed the decision of the Tribunal and allowed the Revision Application.
In our opinion, since both the parties have proceeded on the footing that the transactions in question were effected pursuant to the said agreement, the primary task to which we must address ourselves is to examine whether under the agreement the assessee firm was an agent of the said company, or whether the assessee firm was really a purchaser of the goods which were booked by it.
In this connections, it must be noticed that under sub clause (a) of Clause 2 provides that the distributor has the right of the sale of the product within the stipulated area.
Bulk supplies were effected in waggon load or lorry load by the said company direct to the consumer, but only provided that the distributor arranged the payment as per the agreement and also took the responsibility to bear entirely the resultant effects and risk from said direct despatches.
It is true that the price at which the goods were to be sold to the customers was fixed by the company but that itself does not necessarily lead to the conclusion that the assessee acted merely as an agent of the said company.
In fact, it is well settled that the mere fact that the manufacturer fixes the sale price, by itself, cannot lead to the conclusion that the distributor is merely an agent.
It is significant that under the agreement what the distributor got is described as a "rebate" and not as "commission", as one would normally expect in an agreement of agency.
This is a factor which is by no means conclusive, but to a certain extent indicative of the relationship between the said company and the assessee.
What is most important is, however, that the supplies were made to the distributor against payment either immediate or deferred as provided in the agreement, and even when 885 the goods were destined directly to the customer, it was the distributor who had to guarantee to arrange the payment.
Clause 8 makes it quite clear that the arrangement for effecting payment had to be made by the distributor either in case of by demand draft or by irrevocable letter of credit in the company 's favour negotiable against R/R or other documents of despatch of goods.
It is also significant that where there was some time lag between the sending of the goods and the payment, the goods were to be insured at the cost of the assessee.
This circumstance, in our opinion, clearly shows that in respect of the goods dispatched under orders placed by the distributors, the distributors really acted as purchasers of the goods which they in turn sold to the customers and did not merely act as agents of the said company.
In respect of the goods in question which were despatched through public carriers, although the invoices were prepared in the names of the consumers of the goods, and the goods were consigned to the destination through public carrier booked to self, as pointed by the Tribunal and the bills were endorsed and handed over to the assessee.
When considered in the light of the agreement, these circumstances clearly shows that in respect of these transactions the property in the goods dispatched passed to the distributor on the bills being endorsed and handed over to the distributors.
Our attention was drawn by Shri Krishnamurthy Iyer, learned counsel for the assessee (appellant) to the decision of this Court in The Bhopal Sugar Industries Ltd. vs Sales Tax Officer, Bhopal, [1977] 3 S.C.C. p. 147 where the question was whether the contract was one of agency or sale.
This Court held that the question will have to be determined having regard to the terms and recitals of the agreement, the intention of the parties as may be spelt out from the terms of the document and the surrounding circumstances and having regard to the course of dealings between the parties.
While interpreting the terms of the agreement, the Court has to look to the substance rather than the form of it.
The mere fact that the word 'agent ' or 'agency ' is used or the words 'buyer ' and seller ' are used to describe the status of the parties concerned is not sufficient to lead to the irresistible inference that the parties did in fact intend that the said status would be conferred.
We are in complete agreement with the principles laid down in this decision.
We may point out that although we have referred to the assessee being described in the agreement as "distributor" and not as "agent" and to the fact that what they got was described as "rebate" and not "commission", we have not treated these circumstances as in any manner decisive.
In our view, however, these descriptions considered in the light of the general tenor of the agreement and the 886 circumstances surrounding the transactions between the parties show that the assessee was not agent, but really a purchaser from the company in respect of the goods in question.
Learned counsel for the appellant also drew our attention to a passage in Pollack & Mulla 's Commentary on the Sale of Goods and Partnership Acts, (4th Edition at page 114) where the learned authors have cited with approval the statement of Lord Justice Cotton to the effect that when the vendor on shipment takes the bill of lading to his own order, he has the power of absolutely disposing of the cargo, and may prevent the purchaser from ever asserting any right of property therein.
Lord Justice Cotton observed that in such cases the purchaser had no property in the goods, though he had offered to accept bills or had paid the price.
These observations, however, in our view, have no application to the case before us, because in the case before us, although the goods were consigned to the self, the documents relating to the despatch of goods, namely R/R or other documents of title were endorsed in favour of the assessees and handed over to them on payment or were sent to the assessees through the bank for collection.
We may mention that it was urged by learned counsel for the respondent,in the alternative, that, although sub section 21 of Section 2 of the Kerala General Sales Tax Act defines sale in a manner similar to the definition of the said term under the Sale of Goods Act, Explanation 5 to sub section 21 of Section 2 provides that two independent sales or purchases shall, for the purposes of that Act, be deemed to have taken place in the circumstances set out in that explanation.
A perusal of the said explanation shows that such independent sales or purchases take place, inter alia, where the goods are transferred from a principal to his selling agent and from the selling agent to the purchaser.
It was submitted by him that in view of this explanation, even ifthe appellant firm was merely the agent of the said company in respect of the transactions in question, there were two sales which must be deemed to have taken place in respect of each of the transactions for the purposes of the said Act; one from the said company to the appellant and the other from the appellant to the respective consumer; and that the sale from the said company to the appellant was liable to be included in the taxable turnover of the assessce.
In ourview, it is not necessary to consider this submission, because, according to us, in view of the said agreement, considered in the light of the surrounding circumstances, the assesseeas distributor was not an agent of the said company in respect of the transaction in question, but was the pur 887 chaser and hence the transactions were liable to be included in the turnover of the assessee.
In the result, we find that there is no merit in the appeal and the appeal must stand dismissed with costs.
There will be an order accordingly.
S.L. Appeal dismissed.

dataset_name: IN-Abs

summary:
This appeal arose out of a case under the Kerala General Sales Tax Act.
The assessee firm (assessee) had been appointed as distributor by the Travancore Cochin Chemicals Ltd. (the "said company") to effect sale of their product under an agreement.
In the assessment of the assessee firm for the period 1967 68 under the Kerala General Sales Tax Act, final assessment was completed and the turnover as reported by the assessee was accepted and tax, levied on that basis.
Later, the assessing authority alleged that certain transactions in the aforesaid period had been wrongly excluded from the turnover reported by the assessee in the return and the turnover had escaped assessment.
The contention of the assessee that the transactions did not constitute sales by the said company to the assessee was rejected by the Assessing Officer and it was held that the said turnover was liable to be included in the taxable turnover as escaped turnover.
An appeal by the assessee to the Appellate Assistant Commissioner was dismissed.
In second appeal to the Tribunal, the Tribunal held that the transactions in question had taken place directly between the said company and the consumers and the assessee was merely an agent of the company, and allowed the appeal.
The High Court on revision held that the Tribunal was wrong in concluding that the assessee was acting only as an agent in respect of the said transactions between the said company and the consumers, and allowed the Revision Application.
The assessee firm appealed to this Court by special leave against the decision of the High Court.
Dismissing the appeal, the Court, ^ HELD: Both the parties proceeded on the footing that the transactions in question were effected pursuant to the agreement, sub clause (a) of clause 2 whereof provided that the distributor had the right of sale 880 of the product within the stipulated area.
Bulk supplies were effected in waggon load or lorry load by the said company direct to the consumer pursuant to orders booked by the assessee firm.
The distributor arranged the payment as per the agreement and also took the responsibility to bear entirely the resultant effects and risk from the said direct dispatches.
It was true that the price at which the goods were to be sold to the customers was fixed by the company but that did not lead to the conclusion that the assessee acted merely as an agent of the said company.
The mere fact that the manufacturer fixes the sale price by itself cannot lead to the conclusion that the distributor is merely an agent.
Under the agreement, what the distributor got was described as a "rebate" and not "Commission", as is normally expected in an agreement of agency.
This is a factor, by no means conclusive, but to a certain extent indicative of the relationship between the said company and the assessee.
More important, the supplies were made to the distributor against payment immediate or deferred as provided in the agreement, and even when the goods were destined directly to the customer, the distributor had to guarantee to arrange the payment, as per clause 8.
Where there was some time lag between the sending of the goods and the payment, the goods were to be insured at the cost of the assessee.
This circumstance clearly showed that in respect of the goods dispatched under orders placed by the distributors, the distributors really acted as purchasers of the goods which they in turn sold to the customers and did not merely act as agents of the said company.
In respect of the goods in question, despatched through public carriers, although the invoices were prepared in the names of the customers of the goods and the goods were consigned to the destination through public carrier booked to self, the bills were endorsed and delivered to the assessee.
In the light of the agreement, these circumstances clearly showed that in respect of these transactions the property in the goods dispatched passed to the distributors on the bills being endorsed and handed over to the distributors.
[884D H;885A D] Although the Court had referred to the assessee being described in the agreement as "distributor" and not as "agent" and to the fact that what they got was described as "rebate" and not "commission", the Court had not treated these circumstances as decisive.
But these descriptions considered in the light of the general tenor of the agreement and the circumstances surrounding the transactions between the parties showed that the assessee was not an agent but really a purchaser from the company in respect of the goods in question, and the transactions were liable to be included in the turnover of the assessee.
[885G H;886A] 881 The Bhopal Sugar Industries Ltd. vs Sales Tax Officer, Bhopal, ; ;and Pollack & Mulla 's Commentary on the Sale of Goods & Partnership Acts, 4th Edition, p. 114, referred to.


judgement:
N: Criminal Appeal No. 280 of 1988.
From the Judgment and Order dated 26.9.1986 of the High Court of Delhi in Crl.
W.P. No.361 of 1986.
R.L. Panjwani and R.D. Upadhyay for the Appellant.
section Madhu Sudan Rao, N.L. Kakkar and Miss A. Subhashini for the Respondents.
The following Order of the Court was delivered: O R D E R Special leave granted.
This is an unfortunate case which tends to shake the credibility of police investigation and undermines the faith of common man in Delhi Police which is supposed to protect life and liberty of citizens and maintain law and order.
There has been serious allegations of murder by torture against the police and further about the haphazard manner in which the investigation against the accused police officers was investigated with a view to shield the guilty members of the Delhi Police.
Kashmeri Devi the appellant is the unfortunate widow of Gopi Ram deceased who was a tonga driver.
On the fateful night of 22/23.8.1986 two sub inspectors accompanied by two constables visited the house of Sudesh Kumar of Prem Nagar.
It is alleged that they started beating Sudesh Kumar.
Hearing his shrieks his maternal uncle Gopi Ram deceased came to the spot, he tried to intervene whereupon the police men are alleged to have giving him beating also.
Gopi Ram and Sudesh Kumar both were arrested and taken to the Police Station Patel Nagar where they were stripped of their clothes and the police men gave them serious beating with the help of iron rods and iron rulers.
It is alleged that Gopi Ram succumbed to his injuries at the police station sustained at the hands of Satish Kumar and Rana sub inspectors and Jagmal Singh and Romesh constables while in police custody.
It is alleged that thereafter a post mortem was conducted and the dead body of Gopi Ram was cremated without handing over the dead body to the appellant.
This incident caused consternation in the locality and on 23.8.1986 a mob surrounded the police station to lodge 703 its protest against the death of Gopi Ram deceased at the police hands, Undaunted the Patel Nagar police registered a cause under Section 147/148/149/353/332 of the Indian Penal Code against Shankar brother of the deceased who was arrested along with others on 23.8.1986 as they were members of the mob.
Sudesh Kumar who had been taken to the police station along with Gopi Ram filed a written complaint at the police Station Patel Nagar on 23.8.1986, making allegations against the two sub inspectors and the constables.
In that complaint Sudesh Kumar alleged that as a result of beating by police officers his maternal uncle became unconscious and thereafter the police officers kept on beating him at the police station as a result of which he died.
He further alleged that the police officers took the dead body of Gopi Ram to the hospital from there they brought it to another hospital, where he was forced to sign blank papers.
He named the police officers who were responsible of the death of his maternal uncle.
On that complaint a case was registered under Sections 302/342 IPC against the police officers of Patel Nagar Police Station but no action was taken against those officers.
After some time case was converted to Section 304 IPC for purpose of investigation.
The appellant Kashmeri Devi approached the High Court by means of a writ petition under Article 226 of the Constitution for transferring the investigation of the case from the Crime Branch of the Delhi Police to Central Bureau of Investigation.
Division Bench of the High Court dismissed the writ petition by its order dated 26th September, 1986.
Thereupon, the appellant approached this Court by means of special leave petition.
During the pendency of the special leave petition this court granted time to the respondents twice for filing counter affidavit but the respondents failed to file their counter affidavit.
Ultimately on 11.4.1988 Kanwaljit Deol, Deputy Commissioner of Police Head Quarters has filed counter affidavit setting out a totally different story.
He has stated that on 23.8.1986 the police received information that one Gopi of Prem Nagar was brought dead by Sudesh Kumar from Prem Nagar to Ram Manohar Lohia Hospital, New Delhi.
On receipt of the information from the Hospital one sub inspector of police went to Dr. Ram Manohar Lohia Hospital and obtained medical legal certificate of the deceased 's Gopi Ram.
It is alleged that on a personal search of the deceased 's body the police recovered 5 small packets of smack from his pocket.
In his affidavit an attempt has been made out to show that Gopi Ram had died on account of alcohol and marphine and not on account of any injuries caused to him by the police and in this connection a story has been set up that Sudesh Kumar had brought the dead body to Dr. Ram Manohar Lohia Hospital and on receiving 704 information from the Hospital the police made recovery of smack from the the deceased 's pocket.
The affidavit is completely silent about the allegations made by the appellant that the Gopi Ram and Sudesh Kumar were arrested taken to the police station and Gopi Ram was beaten to death.
The affidavit further refers to some medical report which purports to state that deceased died on account of alcohol and marphine.
It is further stated that after taking into consideration the cause of the death given by the Doctor, charges were amended to Sections 323/342/34 IPC and after completing the investigation challan was prepared and the same has been put in the Magistrate 's Court.
The affidavit of Kanwaljit Deol states that in the absence of evidence the story set up by Sudesh Kumar could not be substantiated.
After hearing learned counsel for the parties and on perusal of the record we are satisfied that prima facie the police have not acted in a forthright manner in investigating the case, registered on the complaint of Sudesh Kumar.
The circumstances available on record prima facie show that effort has been made to protect and shield the guilty officers of the police who are alleged to have perpetrated the barbaric offence of murdering Gopi Ram by beating and torturing.
The appellant has been crying hoarse to get the investigation done by an independent authority but none responded to her complaint.
The Additional Sessions Judge while considering the bail application of Jagmal Singh, Constable, considered the autopsy report and observed that Doctor had postponed giving his opinion regarding the cause of death although the injuries were antimortem.
The learned Sessions Judge referring to a number of circumstances observed that the investigating officer had converted the case from 302 IPC to 304 IPC on flimsy grounds within hours of the registration of the case even without waiting for the postmortem report.
The learned Sessions Judge further observed that it was a prima facie case of deliberate murder of an innocent illiterate poor citizen of Delhi in police custody and investigation was partisan.
We are in full agreement with the observations made by the learned Sessions Judge.
As already noted during the pendency of the writ petition before the High Court and special leave petition before this Court the case was further converted from 304 IPC to 323/34 IPC.
Prima facie the police has acted in partisan manner to shield the real culprits and the investigation of the case has not been done in a proper and objective manner.
We are therefore of the opinion that in the interest of justice it is necessary to get a fresh investigation made through an independent authority so that truth may be known.
705 Since according to the respondents charge sheet has already been submitted to the Magistrate we direct the trial court before whom the charge sheet has been submitted to exercise his powers under Section 173(8) Cr.
P.C. to direct the Central Bureau of Investigation for proper and thorough investigation of the case.
On issue of such direction the Central Bureau of Investigation will investigate the case in an independent and objective manner and it will further submit additional charge sheet, if any, in accordance with law.
The appeal stands disposed of accordingly.
N.V.K. Appeal disposed of.

summary:
The appellant was the widow of a tonga driver who died in police custody.
It is alleged that on the fateful night of 22/23.8.1986 two sub inspectors accompanied by two constables visited the house of one Sudesh Kumar, and started beating him.
On hearing his shrieks his maternal uncle Gopi Ram, the tonga driver tried to intervene whereupon the policemen are alleged to have beaten him also.
Both of them were arrested taken to the police station, stripped of their clothes and beaten with iron rods.
The tonga driver succumbed to his injuries at the police station.
Thereafter, a post mortem was conducted and the dead body was cremated without handing it over to the appellant.
The aforesaid incident caused consternation in the locality, and a mob surrounded the police station to lodge its protest against the death of the tonga driver in police custody.
Undaunted the police registered a case under Sections 147 149 and 353/332 I.P.C. against the brother of the deceased and others as they were members of the mob.
Sudesh Kumar filed a written complaint naming the two sub inspectors and the constables as responsible for the death of his maternal uncle which was registered under Section 302/342 I.P.C. No action was however taken against those officers.
After some time the case was converted to Section 304 I.P.C. for purpose of investigation.
701 The appellant approached the High Court by a writ petition under Article 226 for transferring the investigation of the case from the Crime Branch of the State Police to the Central Bureau of Investigation.
The Division Bench, however, dismissed the petition.
Disposing of the Appeal, this Court, ^ HELD: 1.
The police have not acted in a forthright manner in investigating the case registered on the complaint of Sudesh Kumar.
[704C D] 2.
The circumstances available on record prima facie show that effort has been made to protect and shield the guilty officers of the police who are alleged to have perpetrated the barbaric offence of murdering Gopi Ram by beating and torturing.
[704D] 3.
The appellant had been crying hoarse to get the investigation done by an independent authority but none responded to her complaint.
[704D E] 4.
The Additional Sessions Judge while considering the bail application of one of the Constables Jagmal Singh, considered the autopsy report and observed that the Doctor had postponed giving his opinion regarding the cause of death although the injuries were antimortem.
[704D E] 5.
The Sessions Judge referring to a number of circumstances observed that the investigating officer had converted the case from Section 302 IPC to 304 IPC on flimsy grounds within hours of the registration of the case even without waiting for the post mortem report and that it was a prima facie case of deliberate murder of an innocent illiterate poor citizen of Delhi in police custody and investigation was partisan.
[704E F] 6.
In the interest of justice it is necessary to get a fresh investigation made through an independent authority so that the truth may be known.
[704H] 7.
The trial court before whom the charge sheet has been submitted shall exercise its powers under Section 173(8) Cr.
P.C. to direct the Central Bureau of Investigation for proper and thorough investigation of the case.
On issue of such direction the C.B.I. will investigate the case in an independent and objective manner and submit additional charge sheet if any in accordance with law.
[705A B] 702


judgement:
N: Criminal Appeal No. 305,306 & 307 of 1988.
From the Judgment and Order dated 2nd/3rd July, 1986 of the High Court of Bombay in Criminal application No. 1127, 527 and 866 of 1985.
S.B. Bhasme, M.C. Bhandare, Dilip Pillai, P.K. Pillai, T. Sridharan and Amit Desai for the appellants.
V.M. Tarkunde, R.K. Garg, M.S. Rao, Y.R. Naik, Rajadyaka, S.B. Jaisingha, Ms. R. Jethmalani, C. Ramesh and Ashok Sharma for the Respondents.
V.S. Desai, G.B. Sathe, A.M. Khanwilkar and A.S. Bhasme for the State of Maharashtra.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
Special Leave granted in each of the three cases.
A common questions arising for consideration in these appeals is as to the justifiability of the appointment by the State of Special Public Prosecutors and Assistant Public Prosecutors under sections 24 and 25 respectively of the Code of Criminal Procedure, 1973 at the cost of the private complainants.
In Criminal Appeal arising out of S.L.P. (Crl) No. 3027 of 1986 the appellants are facing prosecution for charges of forgery and cheating before the Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Bombay.
On 4th of December, 1979 the Government of Maharashtra appointed as Assistant Public Prosecutor for conducting the said case for the prosecution in exercise of powers under section 25(1) of the Code of Criminal Procedure.
In the connected Criminal Appeal arising out of S.L.P. (Crl.) No. 3048 of 1986 the appellant is accused of an offence punishable under section 409 read with sections 120 B and 34 of the Indian Penal Code and is facing his trial in the 871 court of the same Metropolitan Magistrate.
On 3rd of August, 1983, the State of Maharashtra in exercise of powers under section 24(8) of the Code of Criminal Procedure has appointed two advocates as Special Public Prosecutors for conducting the prosecution.
In the other connected Criminal Appeal arising out of S.L.P. (Crl.) No, 703 of 1987 the appellants are being tried for offences punishable under sections 506(ii), 337, 354, 504, 498 A, read with sections 114 and 34 of the Indian Penal Code in the Court of the same Metropolitan Magistrate, 40th Court, Girgaum, Bombay.
By notifications dated 4th December, 1979, 3rd August, 1983 and 17th July, 1985, the Government of Maharashtra in exercise of powers under section 24(8) of the Code appointed two advocates as Special Public Prosecutor for conducting the prosecution.
These notifications were assailed in a group of writ petitions before the Bombay High Court and a Division Bench of that Court by a common judgment dated 2nd July, 1986, rejected the writ petitions and upheld the appointments.
That common judgment of the High Court is assailed in this batch of appeals.
Since common questions have been raised and argued at a time, this judgment shall dispose of all the three appeals.
The impugned appointments have been made either in exercise of powers under section 24 or section 25 of the Code of Criminal Procedure of 1973.
Section 24 deals with Public Prosecutors while section 25 makes provisions for Assistant Public Prosecutions.
While sub section (1) of section 24 enables the Central Government or the State Government to appoint a Public Prosecutor or an Additional Public Prosecutor for the purpose of High Courts, sub section (2) makes provision for appointment of one or more Public Prosecutors for the purposes of conducting of cases in any district or local area and sub sections 4, 5, 6 and 7 deal with the modality of such appointments, sub section (8) provides: "The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor.
" Section 25 deals with the appointment of Assistant Public Prosecutors Sub section (1) provides: "The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the courts of magistrates." 872 The provisions contained in these two sections in the Code of 1973 correspond to section 492 of the old Code which dealt with the appointment of Public Prosecutors.
Challenge by the appellants to the notifications in question is on the ground that the Code confers a special status on the Public Prosecutor; whenever it has been considered necessary, law has prescribed the interest to be represented by the Public Prosecutor and it would not be in proper exercise of power by the State Government to make appointment of a Special Public Prosecutor to support a private transaction and provide for his remuneration from private source.
The High Court referred to some decisions of the different Courts supporting and opposing the view canvassed before it and came to hold: "According to us, the conduct of prosecution by a lawyer appointed and paid by the private party does not affect his capacity and ability to perform his role as a Public Prosecutor.
To accept such a proposition is to invalidate all private prosecutions.
" Negativating the plea advanced by the appellants, the High Court has further held: "For the reasons given above, with respect, it is not possible for us to agree that a pleader engaged by a private person is a de facto complainant and cannot be expected to be as impartial as a pleader appointed by the State to conduct public prosecution.
On the other hand, we are of the view that as stated earlier, permission to engage an advocate should be given freely to the complainant.
The complainant has as much a right as the accused to represent his case effectively before the court.
" The High Court also negatived the challenge against the appointment of the Assistant Public Prosecutors under section 25 by holding: "Hence the absence of a provision such as section 24(8) will not bar appointment of an Assistant Public Prosecutor specially to conduct a case or class of cases.
" While dealing with the matter at a different place in the judgment the High Court observed: 873 "But apart from this, we are of the view that guidelines or no guidelines, whenever there is a request made by a private party to engage an advocate of his choice to be paid for by him, the request should be granted as a rule.
The complainant in such cases is either a victim of the offence or is related to the victim or otherwise an aggrieved person.
He has a right to be heard and vindicated.
As stated earlier, the right to be heard implies a right to be effectively represented at the hearing of the case.
He has therefore a right to engage an advocate of his choice.
There is therefore no reason why the State should refuse him the permission to conduct the prosecution with the help of his advocate. . " Appellant 's counsel have challenged these conclusions of the High Court.
Under the Criminal Procedure Code, the Public Prosecutor has a special status, and his is a statutory appointment.
Under some of the provisions made in the Code, he receives special recognition.
Section 2(u) of the Code defines the Public Prosecutor.
Sections 199(2), 225, 301(1), 301(2), 302, 308, 321, 377 and 378 are some of the provisions in the Code which confer a special position upon the Public Prosecutor.
From the spirit contained in the scheme of the Criminal Procedure Code it is clear that it is the duty of the Public Prosecutor to support prosecutions initiated by the State.
Trial before a court of session has to be conducted by the Public Prosecutor as required under section 225 of the Code.
Cases instituted on a police report are intended also to be handled by a Public Prosecutor.
Cases instituted on a complaint, however, stand on a different footing and the complainant has choice of his own counsel.
A set of rules known as Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984 made in exercise of powers conferred by proviso to Article 309 read with Article 165 of the Constitution have been placed before us in course of the hearing.
Chapter III of those rules lays down qualifications of the Government Pleader and Public Prosecutor while Chapter IV prescribes the duties of the Public Prosecutor.
Another set of rules known as The Rules for the Conduct of the Legal Affairs of the Government, 1984, which appears to be administrative in character, was also placed before us.
Chapter III of these Rules provides for Special Counsel and Special Public Prosecutors and Rule 22 thereof provides: "If in any case, civil or criminal, a request is made by any private party, interested in the case, for the appointment of 874 its own advocate as a Special Counsel or Special Public Prosecutor, as the case may be, on the condition that the payment of fees of such advocate will be borne by that party, the Remembrancer of Legal Affairs may, after considering such case on merits, appoint such advocate for the particular case or cases.
" Appellant 's counsel challenged the validity of Rule 22 and contended that such a Rule is contrary to the spirit of the Code of Criminal Procedure and this rule affects the special status conferred on the Public Prosecutor and would cause prejudice to that public office.
The office of the Public Prosecutor is a public one.
A learned Single Judge of the Delhi High Court in K.C. Sood vs S.C. Gudimani, [1981] Crl.
L.J. Vol.
II, 1779 rightly held that the Public Prosecutor, the Additional Public Prosecutor and the Assistant Public Prosecutor hold an office.
The learned Judge said: "It is public office of trust and therefore like any other public office, is susceptible to misuse and corruption and if not properly insulated.
It is an office of responsibility more important than many others because the holder is required to prosecute with detachment on the one hand and yet with vigour on the other.
When advocates are recruited to these offices, they have certain professional and official obligations and privileges.
Some State Governments have appropriately made it an express term of their appointment that they shall not accept any brief in criminal matters and shall not even in civil matters appears in any case in which the interests of the State appear to be involved.
" Similar observations were made by another learned Single Judge in the case of P.G. Narayanankutty vs State of Kerala and Ors., [1982] Crl.
L.J. Vol. 88, 2085.
In this case, Bhat, J., of the Kerala High Court pointed out: "Special Public Prosecutor cannot be appointed with a view to secure convictions at all costs.
Special Public Prosecutor could be appointed only when public interest demands it and not to vindicate the grievances of a private person, such as close relation of the deceased.
In order that he discharges his duties properly, he should look to the State for remuneration for his services; if he looks to a 875 private party for his remuneration, his capacity and ability to perform his role as Public Prosecutor properly will be endangered.
Government cannot appoint Special Public Prosecutor on such terms, abdicating their financial responsibility or directing him to receive his remuneration from any private individual . . .
Some other High Courts have taken a different view of the matter.
A division Bench of the Gujarat High Court in Dilipbhai Chhotalal Dave vs State of Gujarat & Ors., [1971] Guj.
L.R. Vol.
12, 999 considered a case of this type where the Public Prosecutor and the Assistant Public Prosecutor were designated as Special Public Prosecutors for conducting a particular case.
It was found by the Court that remuneration of the advocates had been left to be fixed by agreement between them and the Central Bank of India for whom they were to appear was to pay them directly.
The High Court held: "That though the Public Prosecutor would be incharge of and is required to conduct the prosecution before the court of sessions, the control of proceedings before the Court is ultimately in the hands of the presiding Judge.
It would not be unreasonable to assume that if there is unnecessary prolongation of the trial and consequential harassment of the accused at the hands of the Public Prosecutor or unfair handling of the prosecution case by the prosecutor, the Court would always intervene and protect the accused and ensure a fair trial.
" The Court further found that: "Rule 38 of the Gujarat Law Officers (Conditions of Service) Rules, 1965 made provision that if a Special Counsel was appointed, the terms and conditions of his employment would be such as may be determined by the State Government by an order in writing.
It was open to the State Government to provide for fees of the Special Counsel appointed by it to be paid by virtue of an agreement directly arrived at between the Special Counsel and the complainant.
" Some other cases taking the same view as the Gujarat High Court were also placed before us in course of the hearing. 876 The pattern that prevails in most of the States is that there is a Remembrancer of Legal Affairs who inter alia looks after the cases instituted by the State.
At the district level such interest of the State is looked after by the District Magistrate.
There may be instances where a case instituted on a private complaint is really a public cause.
In such a case the prosecution though initiated by a private individual is really one which should be taken over by the State.
If the complainant thereof approaches the State for assistance in a case of that type by appointing a Special Public Prosecutor or an Assistant Public Prosecutor to support the prosecution it would be for the Legal Remembrancer or the District Magistrate to favourably consider such a request and it would ordinarily be expected that Government would appoint a Special Public Prosecutor to take charge of the prosecution.
There may also be cases of private complainants where for various other reasons it would be appropriate for the State to support the prosecution by appointing a Public Prosecutor or a Special Public Prosecutor to look after the case.
Instances of this type would be cases where the victims are of economically backward classes who are not in a position to vindicate their rights through Court without the assistance of the State.
Here again the Public Prosecutor 's services may be placed at the disposal of the complainant.
It is a well known position in Criminal Jurisprudence that the State is the prosecutor and that is why the primary position is assigned to the Public Prosecutor and where the Public Prosecutor appears, the request of the complainant or the victim to be represented by any other counsel is subject to permission of the Court.
Two questions have now to be dealt with whether as a rule whenever there is a request made by a private complainant for the appointment of a Special Public Prosecutor, should the same be accepted and whether such Special Public Prosecutor should be paid by the private party availing his services.
In most of the States, as we have already observed, the Remembrancer of Legal Affairs looks after the State litigations.
He is a responsible officer and normally with judicial experience.
When an application for the services of a Special Public Prosecutor or an Assistant Public Prosecutor is made in a given case the power would be vested in him to examine the facts and take decision as to whether the case merits the appointment of a Special Public Prosecutor or an Assistant Public Prosecutor.
It would not be appropriate to accept the position that whenever an application is made it should be allowed and a Special Public Prosecutor should be appointed would be contrary to the spirit of the scheme of the Code.
There may be cases where a powerful complainant may have begun a 877 proceeding to victimize his opponent.
If in such a case the State concedes to the request for appointment of a Special Public Prosecutor there will be travesty of justice.
Without screening on the basis of guidelines prescribed or to be prescribed, the services of a Special Public Prosecutor should not be made available to a private complainant.
The primacy given to the Public Prosecutor under the scheme of the Code has a social purpose and the same would be lost if the procedure adopted by Rule 22 of Maharashtra Rules referred to above is accepted or what the High Court has indicated is adopted.
We are inclined to observe that the request for appointment of a Special Public Prosecutor should be properly examined by the remembrancer of Legal Affairs and only when he is satisfied that the case deserves the support of a Public Prosecutor or a Special Public Prosecutor that such a person should be appointed to be incharge of the case.
The next question would be whether the Special Public Prosecutor should be permitted to be paid by the private complainant.
There is considerable force in what has been stated by the Kerala High Court in the case we have referred to above.
There may be certain cases where exception may be made, such as where the prosecutor is a public sector undertaking, a bank whether nationalised or not, an educational institution and the like.
The rate of fees should be prescribed and the private complainant should be called upon to deposit the fees either with the Remembrancer of Legal Affairs or a prescribed State agency from where the fees would be drawn by the Special Public Prosecutor.
To leave the private complainant to pay to the Special Public Prosecutor would indeed not be appropriate.
We would make it clear that we do not support the conclusion of the High Court that as a rule whenever there is request of appointment of a Special Public Prosecutor or an Assistant Public Prosecutor, the same should be accepted.
The Remembrancer of Legal Affairs should scrutinise every request, keeping a prescribed guideline in view and decide in which cases such request should be accepted, keeping the facts of such case in view.
Ordinarily the Special Public Prosecutor should be paid out of the State funds even when he appears in support of a private complainant but there may be some special case where the Special Public Prosecutor 's remuneration may be collected from the private source.
In such cases the fees should either be deposited in advance or paid to a prescribed State agency from where the Special Public Prosecutor could collect the same.
In view of these conclusions and our disagreeing with the view of the High Court, the appeals shall stand allowed.
Rule 22 of the Maharashtra Rules, referred to above, in our view is bad and the State Government should properly modify the same keeping 878 our conclusions in view.
The Remembrancer of Legal Affairs of the Maharashtra Government will now decide as to whether in the three cases referred to here, the services of a Special Public Prosecutor, a Public Prosecutor or an Assistant Public Prosecutor should be provided and in case he comes to the conclusion that such provision should be made, he should decide as to whether the State administration should pay for such Public Prosecutor or the private complainant should bear the same.
There would be no order as to costs.
H.S.K. Appeals allowed.

summary:
The appellants were facing prosecution for several charges under the Indian Penal Code in different trials.
By different notifications the State of Maharashtra appointed some advocates as Assistant Public Prosecutor and Special Public Prosecutors in exercise of powers under section 25(1) and 24(8) respectively of the Code of Criminal Procedure, 1973 for conducting the prosecution.
The notifications were challenged in a group of writ petitions before the High Court.
A Division Bench of the High Court by a common judgment negatived the plea advanced by the appellants, rejected the writ petitions and upheld the appointments.
Hence these appeals by special leave.
The appellants contended that the Code confers a special status on the public prosecutor whenever it has been considered necessary, law has prescribed the interest to be represented by the public prosecutor and it would not be in proper exercise of power by the State Government to make appointment of a Special Public Prosecutor to support a private transaction and provide for his remuneration from private source.
Allowing the appeals this Court, ^ HELD: In most of the States, the Remembrancer of Legal Affairs looks after the State litigations.
He is a responsible officer and normally 869 with judicial experience.
When an application for the services of a Special Public Prosecutor or an Assistant Public Prosecutor is made in a given case the power would be vested in him to examine the facts and take decision as to whether the case merits the appointment of a Special Public Prosecutor or an Assistant Public Prosecutor.
It would not be appropriate to accept the position that whenever an application is made it should be allowed and a Special Public Prosecutor should be appointed would be contrary to the spirit of the scheme of the Code.
There may be cases where a powerful complainant may have begun a proceeding to victimize his opponent.
If in such a case the State concedes to the request for appointment of a Special Public Prosecutor there will be traversity of justice.
Without screening on the basis of guidelines prescribed or to be prescribed, the services of a Special Public Prosecutor should not be made available to a private complainant.
The primacy given to the Public Prosecutor under the scheme of the Code has a social purpose and the same would be lost if the procedure adopted by Rule 22 of Maharashtra Rules is accepted or what the High Court has indicated is adopted.
[876F H;877A B] Rule 22 of the Maharashtra Rules is bad and the State Government should properly modify the same keeping our conclusions in view.
[877H;878A] The next question would be whether the Special Public Prosecutor should be permitted to be paid by the private complainant.
The Remembrancer of Legal Affairs should scrutinise every request, keeping a prescribed guideline in view and decide in which cases such request should be accepted, keeping the facts of such case in view.
Ordinarily the Special Public Prosecutor should be paid out of the State funds even when he appears in support of a private complainant but there may be some special case where the Special Public Prosecutor 's remuneration may be collected from the private source.
In such cases the fees should either be deposited in advance or paid to a prescribed State agency from where the Special Public Prosecutor could collect the same.
[877D,F H] In the instant cases the Rememberancer of Legal Affairs of the Maharashtra Government will now decide as to whether the services of a Special Public Prosecutor, a Public Prosecutor or an Assistant Public Prosecutor should be provided and in case he comes to the conclusion that such provision should be made, he should decide as to whether the State Administration should pay for such Public Prosecutor or the private complainant should bear the same.
[878A B] 870 K.C. Sood vs S.C. Gudimani, [1981] Crl.
L.J. Vol.
II, 1779;P.G.
Narayanankutty vs State of Kerala and Ors., [1982] Crl.
L.J. Vol. 88, 2085 and Dilipbhai Chhotalal Dave vs State of Gujarat & Ors., [1971] Guj.
L.R. Vol.
12, 999, referred to.


judgement:
Civil Appeal No. 4248 of 1986.
From the Judgment and Order dated 22.9.86 of the High Court of Bombay in L.P.A. No.66/86.
Dr. Y.S. Chitale, Kailash Vasudev and A.J. Dholakia for the Appellants.
S.A. Dave, E. Maqbool and Mrs. M. Karanjawala for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
This Appeal, by Special Leave granted under Article 136 of the Constitution, raises a short but interesting question as to the interpretation of sub section (4)(a) of Section 4 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as "the Bombay Rent Act").
As the only point canvassed before us is a point of law, the relevant facts can be shortly stated.
The Appellants are the sub tenants of Respondent No. 1 Firm in respect of Gala No. 4 or Bay No. 4 in a godown situated at the Grain Market at Dana Bunder in Bombay.
Respondent No. 1 Firm were the tenants of the said premises, namely, the said godown in which the said Gala is situated, having taken a lease of the building in which it is situated along with the land on which the building stands from the Bombay Port Trust under a written agreement.
The Appellants were in occupation of the said Gala under written agreements executed from time to time for a period of one year each.
The last such agreement was executed on 7th November, 1970 and was to expire on 19th October, 1971, that is, at the end of Samvat year 2827.
Respondent No. 1 Frim served a notice through their advocate on the Appellants on 13th January, 1972 to hand over the possession of the said premises, namely, the said Gala (referred to hereinafter as "the said premises") 910 inter alia on the ground that the period of the lease had expired.
In their reply dated 14th January, 1972, the Appellants contended that they were lawful sub tenants of Respondent No. 1 Firm in respect of the said premises and were entitled to the protection of the Bombay Rent Act.
Respondent No. 1 Firm in their reply denied that the Appellants were entitled to protection under the said Act.
Respondent No. 1 terminated the tenancy of the Appellants by their notice dated February 3, 1972.
In the correspondence ensued thereafter between the parties, they repeated their respective stands.
Respondent No. 1 filed a suit in the Bombay City Civil Court to recover possession of the said premises.
The Appellants in their written statement took up the contention that they were not liable to be evicted as they were entitled protection under the provisions of the Bombay Rent Act.
The Bombay City Civil Court decreed the suit of Respondent No. 1.
On an appeal by the Appellants, a learned Single Judge of the Bombay High Court remanded the suit to the Bombay City Civil Court for recording findings on two questions, namely, (1) as to who were lessors of the defendants whose monthly tenancy commenced in the year 1957 and (2) whether that tenancy was legally and validly terminated.
On remand the Bombay City Civil Court held that the lessors of the Appellants in 1957 were one Maghji and Kanji and that the tenancy of the Appellants was not validly terminated.
Thereafter the Appeal of the Appellants came up for hearing before a learned Single Judge of the Bombay High Court.
He held that the notice of termination of tenancy dated 3rd February, 1972 was a valid notice terminating the Appellants ' tenancy and that the provisions of the Bombay Rent Act did not apply to the premises in question.
The learned Single Judge upheld the decree of eviction originally passed by the Bombay City Civil Court.
A Letters Patent Appeal was preferred against this judgment to a Division Bench of the Bombay High Court but the same was dismissed by a short order.
This Appeal is directed against the judgment and order of the Division Bench of the Bombay High Court.
The only submission made before us by Dr. Chitale, learned Counsel for the Appellants, was that the impugned judgment was erroneous and liable to be set aside as the said premises, namely, the said Gala No. 4, were entitled to the protection of the provisions of the Bombay Rent Act and Respondent No. 1 Firm was not entitled to a decree for eviction as none of the grounds for eviction under that Act had been made out.
It may be mentioned here that for the purpose of this Appeal we intend to proceed on the assumption that Respondent No. 1 Firm has 911 not made out any ground which would entitle him to a decree for eviction under Section 13 of the Bombay Rent Act.
Section 12 of the Bombay Rent Act provides that a landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays or is ready and willing to pay the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of the Bombay Rent Act.
Section 13 provides that notwithstanding anything contained in the Bombay Rent Act but subject to the provisions of Section 15 and 15A, a landlord shall be entitled to recover possession of any premises if the court is satisfied with any of the grounds set out in that section is made out.
Sub section (1) of Section 4 of the Act which deals with the Exemptions reads as follows: "4.
Exemptions. (1) This Act shall not apply to any premises belonging to the Government or a local authority or apply as against the Government to any tenancy, licence or other like relationship created by a grant from or a licence given by the Government in respect of the premises requisitioned or taken on lease or on licence by the Government, including any premises taken on behalf of the Government on the basis of tenancy or of licence or other like relationship by, or in the name of any officer subordinate to the Government authorised in this behalf; but it shall apply in respect of premises let, or given on licence, to the Government or a local authority or taken on behalf of the Government on such basis by, or in the name of, such officer.
" Sub section (4)(a) to Section 4 which was introduced into the Bombay Rent Act by the Bombay Act 4 of 1953 runs as follows: "18(4)(a).
The expression "premises belonging to the Government or a local authority" in sub section (1) shall notwithstanding anything contained in the said sub section or in any judgment, decree or order of a court, not include a building erected on any land held by any person from the Government or a local authority under an agreement, lease, licence or other grant, although having regard to the provisions of such agreement, lease, licence or grant the building so erected may belong or continue to belong to the Government or the local authority, as the case may be".
912 It was contended by Dr. Chitale that although the building in which the said premises are situated belonged to the Bombay Port Trust which is admittedly a local authority as contemplated in Section 4 of the Bombay Rent Act, the said premises were excluded from the scope of the exemption provided by sub section (1) of Section 4 of the Bombay Rent Act as the case fell within the scope of sub section (4)(a) of Section 4 of the Bombay Rent Act.
It was urged by him that the said building was erected on land belonging to a local authority, namely, the Bombay Port Trust and hence the said premises must be considered to be outside the scope of the exemption provided by subsection (1) of Section 4 and covered by the provisions of the Bombay Rent Act although the building might belong to the Bombay Port Trust.
We may at this stage notice the legislative history in connection with sub section (4)(a) of Section 4.
The exemption granted under Section 4(1) of the Bombay Rent Act came up for consideration before the Supreme Court in the case of Bhatia Co operative Housing Society Ltd. vs D. C. Patel, The facts in that case were that the building site was auctioned to a person by the City Improvement Trust of Bombay with a condition that the bidder was to put up a building thereon of a certain description at a cost of not less than Rs.50,000 and after the completion of the building, the site and the building were to be leased to the bidder for a period of 99 years at a fixed yearly rent.
It was held that the building belonged to the Improvement Trust and not to the bidder and a suit by the lessee of the Improvement Trust against his sub lessee was not governed by the Bombay Rent Act as the premises belonged to a local authority within the meaning of Section 4(1) of that Act.
In analysing Section 4(1) of that Act, the Court pointed out that the sub section has three parts, namely, (1) This Act shall not apply to premises belonging to the Government or a local authority, (2) this Act shall not apply as against the Government to any tenancy or other like relationship created by grant from the Government in respect of premises taken on lease or requisitioned by the Government and (3) this Act shall apply in respect of premises let out to the Government or a local authority.
The Court observed that the conclusion was, therefore, irresistible that the Legislature did not by the first part intend to exempt the relationship of the landlord and tenant but intended to confer on the premises belonging to Government an immunity from the operation of the Act.
The contention of the counsel for the sub lessee that the immunity given by the first part should be held to be available only to the Government or a local authority to which the premises belonged was 913 rejected.
It was held that if the benefit of the immunity was given only to the Government or a local authority and not to its lessee and the Act applied to the premises as against the lessee, it must follow that under Section 15 of that Act, it would not be lawful for the lessee to sublet the premises or any part of it and that if such were the consequences, nobody would take a building lease from the Government or a local authority and the immunity given to the Government or a local authority would, for all practical purposes, and in so far as at any rate as the building leases are concerned, be wholly illusory and worthless and the underlying purpose for bestowing such immunity will be rendered wholly ineffective.
As a result of this decision, the sub lessees in a building put up by a lessee from the Government or a local authority under a building lease did not get any protection from being evicted at the sweet will of the lessee and were denied the benefit of the provisions of the Bombay Rent Act.
In order to obviate this hardship of sub lessees, sub section (4)(a), set out earlier, was introduced into the provisions of the Bombay Rent Act.
The question, however, is whether the protection of that sub section is available to the sub lessee in a building leased by the lessee from the Government or a local authority or put up by a lessee of the land belonging to the Government or a local authority but not under any building lease or pursuant to any obligation imposed on the lessee to put up a building.
We may make it clear in this connection that in the present case, the factual position emerging from the record appears to be that the entire building in which the said premises, namely, Gala No. 4 is situated belonged to the Bombay Port Trust.
That is clear from the contents of clause (ii) of Paragraph (2) of the Special Leave Petition preferred by the Appellants as well as the other material on record.
It has nowhere been contended at any stage by the Appellants that the building in which the said premises are situated was put up by Respondent No. 1 Firm.
We are, therefore, not concerned with the position of a sub lessee in a building put up by a lessee of the land taken from the Government or a local authority without being under any obligation to do so.
It was urged before us by Dr. Chitale that, if the sub lessee in a building put up by a lessee on land leased from the Government or a local authority under a building lease is entitled to the protection of the Bombay Rent Act under the provision of Section 4(4)(a) thereof, there is no reason why such protection should be denied to a sub lessee in any building belonging to the Government or a local authority and taken on lease by a private party regardless of the question as to who has put up the building.
That may or may not be so but what we have to examine is whether the intention to confer such protection can be 914 imputed to the legislature on the language of the said sub section read in the context of the relevant provisions of the Bombay Rent Act.
The plain reading of sub section (1) of Section 4 makes it clear that the provisions of the Bombay Rent Act are not applicable to premises belonging to the Government or a local authority.
Sub section (4)(a) only takes out from the scope of the exemption conferred by Section 4(1) "a building erected on any land held by any person from the Government or a local authority under an agreement, lease, licence or other grant, although having regard to the provisions of such agreement, lease, licence or other grant, although having regard to the provisions of such agreement, lease, licence or grant the building so erected may belong or continue to belong to the Government or the local authority, as the case may be".
If this provision were to be construed as including any building put up or erected on land held by any person from the Government or a local authority, the result would be that such protection would be available even against the Government or a local authority and the provisions of sub section (1) of Section 4 may be rendered largely nugatory.
It is not disputed by Dr. Chitale that the provisions of sub section 4(a) were never intended to take away the immunity conferred upon the premises belonging to the Government or a local authority and if the provisions of Section 4(4)(a) were to be construed as urged by Dr. Chitale this immunity would be rendered practically nugatory.
In fact, a plain reading of the provisions of sub section (4)(a) in the context clearly shows that there is no intention therein to take out a building put up by the Government or a local authority from the scope of the exemption conferred by sub section (1) of Section 4.
In fact, the language of sub section (4)(a) and sub section (1) of Section 4 of the Bombay Rent Act read together suggests that it was only in respect of a building put up by the lessee on the Government land or land belonging to a local authority under a building agreement that the sub lessees were taken out of the exemption contained in sub section (1) of Section 4 and allowed the benefit of the provisions of the Bombay Rent Act.
It is significant that the exemption granted under the earlier part of sub section (1) of Section 4 is in respect of the premises and not in respect of the relationship.
In order to confer the protection of the provisions of the Bombay Rent Act to the sub lessees occupying the premises in any building erected on Government land or on land belonging to a local authority irrespective of the question who has put up the building as against the lessees of the land but without affecting the immunity conferred to the Government or local authorities as contemplated by sub section (1) of Section 4 of the Bombay Rent Act, we would have to practically rewrite the provisions of Section 4 and it is not open to us to do that.
We are, therefore, unable to accept the argument of Dr. Chitale and we are of the view that the 915 learned Judge of the High Court of Bombay was right in coming to the conclusion that the premises in question were not entitled to the benefit of the provisions of the Bombay Rent Act.
Before parting with the matter we may take note of some of the other decisions cited before us.
In Kanji Manji vs The Trustees of the Port of Bombay, [1962] Suppl.
3 S.C.R. 461 this Court took the view that if the Government or a local authority wants to evict a person from land belonging to the Government or a local authority, the provisions of the Bombay Rent Act do not come in the way.
For the same reason, the suit for ejectment does not have to be filed in the Court of Small Causes as required by the Rent Control Act but in the City Civil Court.
If the original lessees took on lease not only the land but also the building, it is not open to their assignees to claim that the ownership of the Government extended only to the land and not to the buildings.
This decision is of no assistance to the case before us.
In Maneklal and Sons vs Trustees of Port of Bombay and Others, the facts, very briefly stated, were that Respondent No. 1 being the Trustees for the Port of Bombay were the owners of a plot of land situated in Bombay.
In 1945, the trustees granted lease of the said plot of land to one Mustafa Husein for the purpose of erecting a godown for carrying on commercial activities.
The godown was erected by Mustafa Husein in 1946 and in 1958 he granted a lease of the said godown to the petitioners in that case.
The Trustees of the Port of Bombay filed a suit against Mustafa Husein for eviction.
The lease granted to Mustafa Husein stood terminated.
The ground of eviction was the termination of Tenancy.
The Trustees obtained a decree against the heirs of Mustafa Husein.
A warrant of possession in execution of decree was sought to be executed against the petitioners.
The petitioners obstructed the execution of the decree.
Thereupon, the Trustees took out a Chamber Summons in the High Court of Bombay for removal of obstruction.
The petitioners contended that they were the lessees under the said Mustafa Husein and were entitled to the protection of the Bombay Rent Act.
This Court pointed out that the word "premises" in sub section (1) could mean the land or the buildings or both.
Sub section (4)(a) of the Bombay Rent Act dealt only with the buildings and did not deal with the land because it used the word "buildings" and not the more general word "premises".
The import of sub section (4)(a) of Section 4 was thus limited to buildings and did not extend to land.
The sub section, however, was drafted 916 somewhat inartistically and the obscurity of the language resulted in some difficulty.
After considering the decision of the Bombay High Court in Ram Bhagwandas vs Municipal Corporation of the City of Bombay, this Court pointed out that as observed by Chagla, C.J., in the case of Ram Bhagwandas, (supra) by enacting sub section (4)(a) of Section 4 of the Bombay Rent Act, the Legislature was seeking to protect by that sub section tenants who occupied buildings put up upon land belonging to a local authority if the buildings occupied by them were constructed under an agreement under which the lessee was under an obligation to construct buildings.
The protection of sub section (4)(a) was to buildings and not to lands and the phrase "under an agreement, lease or other grant" modified not only the expression "held by any person from the Government or a local authority" but also "erected on any land".
This Court pointed out that this was the view taken by this Court in Kanji Manji Case, cited earlier.
On the basis of this conclusion, this Court dismissed the Special Leave Petition filed by the petitioner.
This decision far from supporting the submission of Dr. Chitale, militates against it.
In the result, we find that there is no merit in the Appeal and it must fail.
The Appeal is, therefore, dismissed with no order as to costs.
However, taking into consideration of the facts and circumstances of the case we direct that the Appellants shall not be evicted from the premises in question until December 31, 1988.
We can only observe that if the intention of the Legislature is that the protection should be given to the sub lessee against the lessee in a building taken on lease by the lessee from the Government or a local authority, it is for the Legislature concerned to make appropriate amendments in the Bombay Rent Act and it is not open for us to re write the provisions of sub section (4)(a) of Section 4 of the Bombay Rent Act on the ground of any such intention as suggested by Dr. Chitale.
S.L. Appeal dismissed.

summary:
This appeal raised a short question as to the interpretation of sub section (4)(a) of section 4 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 ("the Bombay Rent Act").
The appellants were the sub tenants of the respondent No. 1 Firm in respect of the premises called Gala No. 4 in a godown.
Respondent No. 1 Firm were the tenants of the said godown, having taken a lease of the building from the Bombay Port Trust.
The appellants were in occupation of the said Gala under written agreements executed from time to time for one year each.
The last such agreement expired on 19th October, 1971.
The respondent No. 1 Firm served a notice on the appellants on 13th January, 1972 to hand over possession of the said gala on the ground that the period of lease had expired.
By notice dated February 3, 1972, the respondent No. 1 Firm terminated the tenancy of appellants and then filed a suit in the City Civil Court against the appellants to recover possession of the premises in dispute inter alia on the ground that the period of lease had expired.
The appellants took up the contention that they were not liable to be evicted as they were entitled to protection under the provisions of the Bombay Rent Act.
The City Civil Court decreed the suit.
On appeal by the appellants, the High Court (Single Judge,) holding that the notice of termination of tenancy dated 3rd February, 1972, was a valid notice and the provisions of the Bombay Rent Act did not apply to the premises in question, upheld the decree of eviction passed by the City Civil Court.
Letters Patent appeal against this judgment was dismissed by a Division Bench of the High Court.
The appellants then moved this Court for relief by special leave.
Dismissing the appeal, the Court, 907 ^ HELD: The only submission made by the appellants before the Court was that the said premises, viz, Gala No. 4, were entitled to the protection of the provisions of the Bombay Rent Act and the respondent No. 1 Firm was not entitled to a decree for eviction as no grounds for eviction under the Act had been made out.
[910G] The question raised was whether the protection of the sub section (4)(a) of section 4 of the Bombay Rent Act was available to the sub lessee in a building leased by the lessee from the Government or a local authority or put up by a lessee of the land belonging to the Government or a local authority but not under any building lease or pursuant to any obligation imposed on the lessee to put up a building.
In this case, the entire building in which the premises in question, namely, Gala No. 4 were situated, belonged to the Bombay Port Trust.
It was nowhere contended at any stage by the appellants that the building in which the said premises were situated was put up by the respondent No. 1 Firm.
The Court was, therefore, not directly concerned with the position of a sub lessee in a building put up by a lessee of the land taken from the Government or a local authority without being under any obligation to do so.
[913D F] A plain reading of sub section (1) of section 4 of the Bombay Rent Act makes it clear that the provisions of the Bombay Rent Act are not applicable to premises belonging to the Government or a local authority.
Sub section (4)(a) only takes out from the scope of the exemption conferred by section 4(1) "a building erected on any land held by any person from the Government or a local authority under an agreement, lease, licence or other grant, although having regard to the provisions of such agreement, lease, licence or grant the building so erected may belong or continue to belong to the Government or the local authority, as the case may be".
If this provision were to be as including any building put up or erected on land held by any person from the Government or a local authority, the result would be that such protection would be available even against the Government or a local authority and the provision of sub section (1) of section 4 may be rendered largely nugatory.
The provisions of sub section (4)(a) were never intended to take away the immunity conferred upon the premises belonging to the Government or a local authority, and if the provisions of section 4(4)(a) were to be construed as urged by the appellants, this immunity would be rendered practically nugatory.
A plain reading of the provisions of sub section (4)(a) in the context clearly shows that there is no intention therein to take a building put up by the Government or a local authority from the scope of the exemption conferred by sub section (1) of section 908 4.
The language of sub section (4)(a) and sub section (1) of section 4 of the Bombay Rent Act, read together, suggests that it was only in respect of a building put up by the lessee on the Government land or the land belonging to a local authority under a building agreement that the sub lessees were taken out of the exemption contained in sub section (1) of section 4 and allowed the benefit of the provisions of the Bombay Rent Act.
It was significant that the exemption granted under the earlier part of sub section (1) of section 4 is in respect of the premises and not in respect of the relationship.
In order to confer the protection of the provisions of the Bombay Rent Act on the sub lessees occupying the premises in any building erected on the government land or the land belonging to a local authority irrespective of the question who has put up the building as against the lessees of the land but without affecting the immunity conferred on the government or local authorities as contemplated by sub section (1) of section 4 of the Bombay Rent Act, the Court would have to practically rewrite the provisions of section 4, and it was not open to the Court to do that.
The argument of the appellants, therefore, could not be accepted.
The learned Judge of the High Court was right in coming to the conclusion that the premises in question were not entitled to the benefit of the provisions of the Bombay Rent Act.
[914A H;915A] The decision of this Court in Kanji Manji vs The Trustees of the Port of Bombay, [1962] Suppl.
3 S.C.R. 461 cited by the appellants was of no assistance to the case before the Court, and the decision of this Court in Maneklal and Sons vs Trustees of Port of Bombay and Others, cited by the appellants, far from supporting the submission of the appellants, militated against it.
[916D] There was no merit in the appeal and it must fail.
Taking the facts and circumstances of the case into consideration, the Court directed that the appellants would not be evicted from the premises in question until December 31, 1988.
[916E] The Court observed that if the intention of the legislature was that the protection should be given to the sub lessee against the lessee in a building taken on lease by the lessee from the government or a local authority, it was for the legislature concerned to make appropriate amendments in the Bombay Rent Act and it was not open for the Court to re write the provisions of sub section (4)(a) of section 4 of the Bombay Rent Act on the ground of any such intention as suggested by Dr. Chitale counsel for the appellants.
[916F] 909 Bhatia Co operative Housing Society Ltd. vs
D.C. Patel, ; Kanji Manji vs The Trustees of the Port of Bombay, [1962] Suppl.
3 S.C.R. 461; Maneklal and Sons vs Trustees of Port of Bombay and Others, and Ram Bhagwandas vs Municipal Corporation of the City of Bombay, , referred to.