judgement:
Appeal No. 644 of 1964.
Appeal by special leave from the judgment and order dated February 25, 1964, of the Rajasthan High Court in D. B. Election Appeal No: 93 of 1963.
R. K. Garg, for the appellant.
B. D. Sharma, for respondent No. 1. 117 The Judgment of the Court was delivered by Shah J.
At the last general elections held in February 1962 the appellant Kumaranand contested a seat in the Rajasthan Legislative Assembly from the Beawar constituency and was declared elected.
Brij Mohan Lal who was a candidate at the election then presented a petition challenging the election of the appellant on the ground that the appellant had in the course of the election committed corrupt practices within the meaning of section 123(4) of the Representation of the People Act, 1951, by publishing a poem containing false statements of fact relating to the personal character and conduct of the applicant Brij Mohan Lal and which were highly prejudicial to his election prospects.
The Election Tribunal declared the appellant 's election void under section 1 00 ( 1 ) (b) of the Act.
Against the order of the Tribunal, the appellant appealed to the High Court of Rajasthan at Jodhpur.
At the hearing of the appeal it was contended by the respondent Brij Mohan Lal, inter alia, that the appellant had failed to enclose with the memorandum of appeal a Government Treasury receipt showing that a deposit of five hundred rupees had been made by him in favour of the Election Commission as security for the costs of the appeal, and his appeal was, on that account, not maintainable.
The High Court held that the appellant had failed to comply with the provisions of section 119A of the Act and on that account the appeal filed by him was incompetent.
The High Court declined to accede to the request made by the appellant to condone the delay, if any, in the filing of the appeal under the proviso to section 116A(3) and to rectify the defect arising from the appellant 's failure to enclose a Government Treasury receipt for Rs. 500 as required by section 119A, and dismissed the appeal.
With special leave, this appeal has been preferred by the appellant.
The facts bearing on the plea which has found favour with the High Court of Rajasthan and the relevant provisions of the Representation of the People Act in force at the material time may be briefly stated.
Section 119A of the Act which was added by section 64 of Act 27 of 1956 and was further amended by Act 58 of 1958 reads as follows : "Every person who prefers an appeal under Chapter IVA shall enclose with the memorandum of appeal a Government Treasury receipt showing that a deposit of five hundred rupees has been made by him either in a Government Treasury or in the Reserve Bank of India in favour of the Election Commission as security for the costs of the appeal.
118 Instead of enclosing with the memorandum of appeal a Govern ment Treasury receipt showing that a deposit of Rs. 500 had been made in favour of the Election Commission, the appellant through his Advocate Vijay Chandra Mehta tendered on October 21, 1963, the amount of Rs. 500 in the office of the Registrar of the High Court.
The amount tendered was accepted and was duly credited in the name of the appellant as "security deposit '.
The tender form for payment into Court of the security for costs, as completed by the office of the Registrar, High Court, Rajasthan, was as follows "Original tender : 771/21 10 63 R.R.D. No. 239/31 10 63.
In the High Court of Judicature for Rajasthan at Jodhpur Jaipur Bench Instruction to applicant.
Fill up accurately columns 1 to 4.
Name of party on whose Shri Kumaranand.
behalf the money is tendered 2.
Name of parties and num Kumaranand vs Brij Mohan ber of the suit Lal D. B. Election appeal/63.
Nature of payment Security Deposits.
Amount tendered Rs. 500 (Rs. Five hundred only).
Office report May be deposited.
Sd./ Vijay Chandra Mehta Sd/ Illegible 21 10 63 Signature of Cashier Stamp Dated Dated Receipt acknowledged in Register No. R.R.D. No. 239/ 31 10 63 only by credited, dated to S.B. Ch.
No. 157/54/ 21 10 63.
Sd/ Mohammed Haji 31 10 63 Signature of Receiving Officer 119 N.B. To be filed with the record.
Sd/ Prem Raj 31 10 Signature of Accountant.
" It is clear from the terms of the tender that the amount was deposited in the High Court on behalf of the appellant Kumaranand as "security deposit" in the proceeding "Election appeal Kumaranand vs Brij Mohan Lal", and the cashier endorsed on the tender form that the amount paid "may be deposited".
The receipt was then entered in the Register and it was ordered by the Accountant that it may be filed with the record.
This deposit of Rs. 500 in the High Court manifestly did not comply with the, requirements of section 119A of the Act.
The tender form did not indicate that the deposit was at the disposal of the Election Commission or that it was to be utilised in the manner authorised by law.
Even it did not recite that the Election Commission had control over the amount or was payable on proper application being made in that behalf.
Section 121 of the Act, insofar as it is material, by Subs.
(1) provides that if any direction for payment of costs by any party to any person is made under Part VI such costs shall be paid in full out of the security deposit and the further security deposit, if any, made by such party, on an application made in writing in that behalf to the Election Commission by the person in whose favour the costs have been awarded.
Section 119A is enacted with a view to secure the costs of the successful party and for that purpose the Legislature has enacted that the deposit should be made in a Government Treasury in favour of the Election Commission so that the Election Commission would pay the amount to the person entitled to the costs.
But failure to comply with the requirements of section 119A does not necessarily result in the dismissal of the appeal, for the Act imposes no express penalty for non compliance with the requirements of that section.
Under section 90(3) the Tribunal is bound to dismiss an election petition which does not comply with section 81 or section 82 notwithstanding that it had not been dismissed by the Election Commission under s,. 85.
No similar penalty is prescribed by the Legislature in the matter of failure to comply with the requirements of section 119A.
It may also be observed that by cl.
(4) of section 90 as originally enacted for failure to comply with the provisions of section 117 of the Act which required a petitioner to enclose with an election petition a Government Treasury receipt showing that a deposit of two thousand rupees bad been made by him either in a Govern 120 ment Treasury or in the Reserve Bank of India in favour of the Election Commission as security for the costs of the petition, it was provided that the Tribunal may dismiss an election petition This clause was later modified and renumbered as cl.
(3) by Act 27 of 1956, and it was enacted that the Tribunal shall dismiss an election petition which does not comply, amongst others, with the provisions of section 117.
By the amendment made by Act 40 of 1961, reference to section 117 was, however, omitted.
The Legislature therefore has deliberately made a distinction between failure to comply with certain requirements of the statute.
In respect of certain defaults the Election Tribunal is obliged to dismiss the election petition, but for default in complying with the provisions of section 119A no such penalty is imposed.
As observed in Jagan Nath vs Jaswant Singh and Ors.(1) by Mahajan, C.J. : "The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and the Court possesses no common law power.
It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law.
None of these propositions however have any application if the special law itself confers authority on a tribunal to proceed with a petition in accordance with certain procedure and when it does not state the consequence of non compliance with certain procedural requirements laid down by it.
In cases where the election law does not prescribe the consequence or does not lay down penalty for non compliance with certain procedural requirements of that law, the jurisdiction of the tribunal entrusted with the trial of the case is not affected." The question which then has to be considered is whether in case of failure to comply with the requirements of section 119A the High Court had jurisdiction to rectify the mistake committed in making the deposit for costs.
There can be no doubt that an amount of Rs. 500 was intended to be and was in fact deposited by the appellant as security for costs of the respondent, though it was described in the tender by the somewhat inappropriate caption "security deposit".
It appears that the Advocate appearing for the appellant in the High Court did not properly appreciate the scope (1) [1954] (1)S.C.R.892, 895.
121 of the amendment made in the Act by Act 56 of 1956, which incorporated section 119A.
He proceeded as if this was an ordinary civil appeal in which security for costs was required by law to be deposited in Court.
In not acquainting himself with the statutory provisions applicable to the due lodgement of the memorandum of appeal, the Advocate undoubtedly acted negligently, and if that was the only circumstance governing the disposal of the appeal, we would not be justified in interfering with the order of the High Court.
There are, however, certain other considerations which have not been given due effect by the High Court before dismissing the appeal.
In the absence of any penalty prescribed by the Legislature for failure to comply with the requirements of section 119A the jurisdiction of the High Court to entertain the appeal is not affected or jeopardised.
The appellant was it is true not entitled on that account to ignore the statutory provision requiring that a Government Treasury receipt for the requisite amount in favour of the Election Commission as security for the costs of the appeal shall be enclosed.
But when there is default in complying with the requirement, it is for the Court in each case to consider whether it will exercise its discretion to proceed with the appeal after rectifying the mistake committed or it will decline to proceed with the appeal.
In the present case as observed earlier the Advocate failed to acquaint himself about the provisions of section 119A.
It is also somewhat unfortunate that the office of the Registrar of the High Court shared the ignorance of the Advocate.
The tender form which was produced before the High Court clearly discloses that the amount of Rs. 500 was intended to be deposited as security for costs of the respondent in the Election appeal: Kumaranand vs Brij Mohan La].
Instead of depositing that amount in a Government Treasury or in the Reserve Bank, the amount was deposited in the High Court.
The amount was accepted and the receipt was filed with the record, and this was regarded as sufficient compliance with the requirements of section 119A.
The Deputy Registrar of the High Court accepted the presentation and numbered the appeal without raising any objection to the procedure followed.
This would justify an inference that the office of the Registrar of the High Court was misinformed, as the Advocate was, as to the staturory requirements imposed by the Representation of the People Act in the matter of deposit of security for costs of the appeal.
If the memorandum of appeal had not. been accepted by the Registrar 's office, because it was not accompanied by a Government Treasury receipt as required by the statute, the defect could have been cured by the appellant.
But the memorandum of appeal 122 was accepted, and was numbered as an appeal, and notice of the appeal was issued to the respondent.
The objection to the regularity in the procedure was, it appears, brought to the notice of the Court only at the hearing.
That the Advocate for the appellant was negligent cannot be gainsaid.
But the conduct of the office of the Registrar of the High Court in accepting presentation of the appeal which did not comply with the requirements of section 119A has largely contributed to the irregularity of the procedure followed.
It is a trite saying that it is duty of the Court to take care that the act of the Court does no injury to any suitor.
The Court is by statute not obliged to dismiss the appeal for failure to comply with the requirements of section 119A : it has therefore jurisdiction having regard to the circumstances, either to permit rectification of the mistake, or to decline to proceed with the appeal which does not comply with the statutory requirements.
In the present case we think that the High Court erred in not taking into consideration the conduct of the office of the Registrar in accepting the deposit of costs and also a 'defective presentation of the appeal which contributed to the irregularity of the procedure adopted by the appellant.
In our view the High Court should have directed that the amount which had been deposited under the tender form on October 21, 1963, be deposited in the Government Treasury in the name of the Election Commission, and a Government Treasury receipt be obtained in favour of the Election Commission as security for costs of the appeal preferred before the High Court.
Accordingly we set aside the order passed by the High Court and direct that the High Court do give an opportunity to the appellant to rectify the error committed in the matter of securing the costs of the appeal in the manner already set out and that the High Court do proceed to hear the appeal on the merits after the Government Treasury receipt in favour of the Election Commission as security for the costs of the appeal has been obtained and filed in the record.
We do not think that because of the failure to file the Government Treasury receipt, the jurisdiction of the High Court is affected or that the appeal may be regarded as otherwise barred by the law of limitation.
The appeal is allowed.
The appellant had acted irregularly and somewhat negligently and the respondent was justified in bringing to the notice of the High Court the defect in the presentation of the appeal.
Even at the hearing of the appeal he tried to justify his action.
In the circumstances the appellant must pay the costs of the respondent of this appeal.
Costs in the High Court will be costs in the appeal.
Appeal allowed.

summary:
On a petition by the respondent, challenging the election of the appellant to the State Legislative Assembly, the Election Tribunal declared the election void under section 100(1)(b) of the Representation of the People Act.
Against the order of the Tribunal, the appellant appealed to the High Court.
Instead of enclosing with the memorandum of appeal a Government Treasury receipt showing that a deposit of Rs. 500 had been made in favour of the Election Commission, the appellant through his Advocate tendered the amount in the office of the Registrar of the High Court The amount tendered was accepted and was duly credited in the name of the appellant as "security deposit".
At the hearing of the appeal it was contended by the respondent, inter alia, that the appellant had failed to enclose with the memorandum of appeal a Government Treasury Receipt showing that a deposit of five hundred rupees had been made by him in favour of the Election Commission as security of the costs of the appeal, and his appeal was, on that account, not maintainable.
The High Court held that the appellant had failed to comply with the provisions of section 119 A of the Act and on that account the appeal filed by him was incompetent, and dismissed the appeal.
In appeal by special leave : HELD : The failure to comply with the requirements of section 119 A does not necessarily result in the dismissal of the appeal, for the Act imposes no express penalty for non compliance with the requirements of that section.
The Court had therefore jurisdiction having regard to the circum stances, either to permit rectification of the mistake, or to decline to proceed with the appeal which did not comply with the statutory requirements.
In the present case the High Court erred in not taking into consideration the conduct of the office of the Registrar in accepting the deposit of costs and also a defective presentation of the appeal which contributed to the irregularity of the procedure adopted by the appellant.
[122B D].
Jagan Nath vs Jaswant Singh, ; , referred to.


judgement:
Appeal No. 293 of 1963.
Appeal by special leave from the judgment and order dated December 17, 1962 of the Gujarat High Court in Civil Revision Application No. 175 of 1960.
G. B. Pai, 0.
C. Mathur, 1.
B. Dadachanji and Ravinder Narain,for the appellant.
M. section K. Sastri and M. section Narasimhan, for respondents Nos. 1 and 2. 326 August 14, 1963.
The Judgment of the Court was delivered by GAJENDRAGADKAR J.
This appeal by special leave raises a short question about the construction and effect of section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, (No. 57 of 1947) (hereinafter called 'the Act ').
The appellant has been tenant of one room in a residential building known as Lalbang situated in Badekhan 's Chakla in the City of Surat since October 18, 1935.
Under the rent note, she is required to pay a monthly rent of Rs. 18.
On October 12, 1949, respondents 1 and 2 purchased the said property.
It appears that on November 21, 1950, they served a notice on the appellant to vacate the premises let out to her on the ground that she was in arrears of rent from July 1, 1950.
On receiving the said notice, the ap pellant paid a part of the rent, but again fell into arrears, and so, the respondents served a second notice on her, on February 7, 1951, claiming arrears from October 1, 1950.
The appellant did not vacate the premises, nor did she pay all the arrears due from her.
A third notice was accordingly served on her on March 27.
1953, in which the respondents claimed to recover arrears from January 1, 1951, that is to say, arrears for two years and two months.
A few days after this notice was served, section 12(3) of the Act was amended by the Bombay Amending Act No. 61 of 1953, and the amendment came into force on the 31st March, 1954.
The respondents then filed the present suit against the appellant on April 12, 1954, in which they asked for a decree for eviction against the appellant on the ground that they wanted the premises let out to the appellant bona fide for their personal use, and that the appellant was in arrears for more than six months.
This suit was resisted by the appellant on several grounds.
Pending the hearing of the suit, the appellant paid by installments in all Rs. 470 before the date of the decree, so that at the date when the decree was passed, no arrears were due from her.
The learned trial judge upheld both the pleas made by the respondents and passed a decree for eviction against the appellant.
He held that the respondents reasonably and bona fide required the property for their personal use and that the appellant was in arrears of rent for more than 327 six months.
This decree was challenged by the appellant by an appeal preferred before the District Court at Surat.
The learned District judge held that the respondents had failed to prove that they needed the premises reasonably and bona fide for their personal use, but he accepted their case that the appellant was in arrears of rent for more than six months and that the suit fell within the scope of section 12(3) (a) of the Act.
That is how the decree passed by the trial Court was confirmed in appeal.
The appellant then chal lenged the correctness of this decree by a revisional petition filed before the Gujarat High Court.
This petition ultimately failed and the decree passed against her was con firmed.
It is against this decision that the appellant has come to this Court: and on her behalf.
Mr. Pai has con tended that the High Court was in error in holding that the requirements of section 12(3) (a) as amended justified the pas sing of the decree against the appellant.
It appears that section 12 of the Act has been amended from time to time.
Before the Amending Act No. 61/1953 came into force, the said section read thus: "12(1) A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays or is ready 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 this Act.
(2)No suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the Standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the .
(3)No decree for eviction shall be passed in any suit if, at the hearing of the suit, the tenant pays or tenders in Court the standard rent or permitted increases then due together with the costs of the suit.
" The explanation to this section dealt with cases where there was a dispute between the landlord and the tenant in regard to the amount of the standard rent.
With that explanation 328 we are not concerned in the present appeal.
It appears that the Bombay High Court interpreted the words "at the hearing of the suit" in section 12(3) as including the hearing of the appeal arising from the suit, and so, it was held that under section 12(3) of the Act, an appeal Court cannot confirm a decree for eviction if before the passing of the order in appeal, the tenant pays or tenders in Court the standard rent or permitted increases then due together with the costs of the suit and also appeal, vide Dayaram Kashiram Shimpi vs Bansilal Raghunath Marwari(1).
After section 12(3) was amended by the Amending Act 61 of 1953, the words "at the hearing of the suit" were construed by the Bombay High Court to mean that the application which the tenant ran make offering to deposit the arrears due from him must be made before the Court of first instance and cannot be reserved to be made in the Court of appeal, vide Laxminarayan Nandkishore Shravagi vs Keshardev Baijnath Narsaria(2).
There is one more decision of the Bombay High Court to which reference must be made before dealing with the points raised for our decision in the present appeal.
In Kurban Hussen Sajuddin vs Ratikant Nilkant and Anr.(3), it was held that the word "may" used in section 12(3) (a) as amended really meant "must" and that in cases where the conditions of the said provision were satisfied, the Court had to pass a decree for the recovery of possession in favour of the landlord.
It is in the light of these decisions that we have to consider the contention of the appellant that under section 12(3) (a) as amended, it was not open to the Court to pass a decree for ejectment against her in the present proceedings.
On behalf of the appellant Mr. Pai has emphasised the fact that the provisions of section 12, sub sections
(1) and (2) are mandatory and there can be no doubt that they imposed ,severe restrictions on the landlord 's right to sue the tenant in ejectment.
He, therefore, contends that in construing the effect of section 12(3) (a), we must bear in mind the fact that the legislature has enacted the present statute and particularly the provisions of section 12 with a view to protect the interests of the tenant.
He further contends that it (1) (2) A.I.R. 1959 Bom.
329 cannot be disputed that before section 12 (3)(a) was amended, it was open to the tenant to pay the arrears at any time during the pendency of the suit, or even during the pendency of the appeal, and so, when the tenant failed or neglected to pay the arrears due from her immediately after receiving the notice of demand from, the landlord, it is easy to imagine that she knew that her failure to pay the arrears of rent immediately on receiving the notice would not lead to her eviction and that she would have the option to deposit the amount as required by section 12(3) either in the trial Court or in the Court of Appeal.
That being so, he suggests that in order to avoid hardship to the tenant, section 12(3)(a) should be read is requiring the landlord to issue a fresh notice after the amended section came into force.
The notice given by the landlord prior to the date of the amendment did not convey to the tenant the knowledge that her failure to comply with it would necessarily lead to her ejectment, and so, the relevant provisions of this beneficent statute should be construed in a liberal way.
That, in substance, is the first contention raised by Mr. Pai before us We are unable to accept this argument.
What section 12(3)(a) requires is that in cases where there is no dispute between the landlord and the tenant regarding the amount of standard rent or permitted increases, if the landlord is able to show that the tenant is in arrears for a period of six months or more and the said arrears continued in spite of the fact that a notice was served on him before the institution of the suit and no payment was made within a month thereafter, the landlord is entitled to get a decree for ejectment against the tenant.
It is true, that section 12(3)(a) refers to a notice, but in terms, it refers to a notice served by the landlord as required by section 12(2), and in section 12(2) the legislature has made no amendment when it amended sub section (3).
If we turn to section 12(2),.
it would be noticed that the notice given by the respondents to the appellant in the present case satisfies the requirements of the said sub section.
The respondents told the appellant by their notice that arrears were due from her, and there is no doubt that the arrears were not paid up by the appellant until the expiration of one month next after the notice in writing was served on her in that behalf 22 2 SC India/64 330 Section 12(2) never required the landlord to state to the tenant what the consequences would be if the tenant neg lected to pay the arrears demanded from him/her by the notice.
Therefore, if the notice served by the respondents on the appellant prior to the institution of the present suit is in order and it is shown that the arrears have not been paid as required, then section 12(2) has been complied with.
and it is on that footing that the case between the parties has to be tried under section 12(3)(a).
Mr. Pai then contends that section 12(3)(a) seems to suggest that the neglect or failure of the tenant to make the payment of arrears must be subsequent to the date on which the Amending Act came into force.
He relies on the fact that section 12(3)(a) refers to the case where the tenant "neglects to make payment ' of the rent.
The section does not say "has neglected to make payment", says Mr. Pai.
In our opinion, there is no substance in this argument.
The use of the word "neglect" in the present tense has to be construed in the light of the fact that the clause refers to the tenant neglecting to make payment of the rent until the expiration of one month next after receipt of the notice ' and that clearly would have made the .use of the past tense inappropriate.
The position, therefore, is that if notice has been served as required by section 12(2) and the tenant is shown to have neglected to comply with the notice until the expiration of one month thereafter, section 12(2) is satisfied and section 12(3) (a) comes into operation.
Mr. Pai also argued that the right given to the tenant :to pay the arrears at the hearing of the suit was a vested right, and so, in construing section 12(3)(a) we should not adopt the construction which would defeat that vested right.
It is not easy to accept the contention that the provisions of section 12(3)(a) really confer any vested right as such on the tenant.
What section 12(3)(a) provided was that a decree ,shall not be passed in favour of the landlord in case the tenant pays or tenders in Court the standard rent at the ,hearing of the suit.
This provision cannot prima facie be said to confer any right or vested right on the tenant.
But even if the tenant had a vested right to pay the money in court at the hearing of the suit, we do not see how that consideration can alter the plain effect of the words used in section 12(3)(a).
The suit was filed after the amended 331 section came into force, and clearly the amended provision applies to the suit and governs the decision of the dispute between the parties.
If that is so, the plain meaning of section 12(3) (a) is that if a notice is served on the tenant and he has not made the payment as required within the time specified in section 12 (3) (a), the Court is bound to pass a decree for eviction against the tenant.
That is the view taken by the Gujarat High Court and we are satisfied that that view clearly gives effect to the provisions of section 12(3)(a) as amended in 1953.
We must accordingly hold that there is no substance in the appeal.
The appeal, therefore, fails and is dismissed with costs.

dataset_name: IN-Abs

summary:
The appellant was a tenant of the respondents occupying one ,room of a building belonging to them.
She was in arrears of rent,.
The respondents served a notice on her claiming to recover arrears of rent for a period of two years and two months.
A few days after the service of this notice the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, which governs this case was amended.
The respondents thereafter filed a suit for the eviction of the appellant on the ground that they required the premises for bona fide personal use and on the ground that the appellant was in arrears of rent for more than 6 months.
The suit was resisted by the appellant on several grounds but pending the hearing of the suit and before the decree was passed she deposited the entire rent due from her.
The trial Judge upheld both the contentions of the respondent and decreed the eviction of the appellant.
On appeal the District Judge rejected the contention of bona fide personal use put forward by the respondent but found that the appellant was in arrears of rent and dismissed the appeal.
The revision filed by the present 325 appellant failed; the present appeal is by way of special leave granted by this Court.
It was contended on behalf of the appellant that the provisions of section 12(1) and (2) were mandatory and that in construing section 12(3) (a) it must be borne in mind that the object of the statute and particularly section 12 was to give protection to the tenant It was further contended that before section 12(3)(a) was amended it was open to the tenant to pay the arrears at any time during the pendency of the suit or even during the pendency of the appeal.
In order to avoid hardship to the tenant section 12(3)(a) should be read as requiring the landlord to issue a fresh notice after the amended section came into force.
It was also urged that section 12(3)(a) suggests that the neglect or failure of the tenant to make the payment of arrears must be subsequent to the date on which the amendment came into force.
Lastly it was argued that the right given to the tenant to deposit arrears was a vested right and therefore section 12(3)(a) should not be construed in such a way as to take away this vested right.
Held : (i) section 12(3)(a) refers to a notice served by the landlord as required by section 12(2) and in section 12(2) the legislature has made no amendment when it amended sub section
The notice served by the appellant in the present case satisfies the requirements of section 12(2).
If the notice has been served as required by section 12(2) and the tenant is shown to have neglected to comply with the notice until the expiry of one month thereafter section 12(2) is satisfied and section 12(3)(a) comes into operation.
(ii)S. 12(3)(a) does not confer any right or vested right on tenant and even if such a right is conferred it would not alter the plain effect of the words of section 12(3)(a).
The plain meaning of section 12( 3)(a) is that if a notice is served on the tenant and he hap, not made the payment as required within the time specified in section 12(3)(a) the court is bound to pass a decree of eviction against the tenant.
The appeal is dismissed.
Dayaram Kashiram Shimpi vs Bansilal Ragkunath Marwari, , Laxminarayan Nandkishore Shravagi vs Keshardev Baijnath Narsaria, and Kurban Hussen Sajauddin vs Ratikant Nilkant, A.I.R. 1959 Bom.


judgement:
Appeal No. 484 of 1961.
Appeal by special leave from the judgment and decree dated March 28, 1958 of the Rajasthan High Court (Jaipur Bench) at Jaipur in D. B. Civil First Appeal No. 64 of 1951.
Sarjoo Prasad and Harbans Singh, for the appellants.
B. P. Sinha and Naunit Lal, for the respondents.
May 8, 1964.
The Judgment of the Court was delivered by GAJENDRAGADKAR, C.J.
This appeal by special leave arises out of a redemption suit filed by the respondent Dev Karan against the appellant Murarilal.
The mortgage sought to be redeemed was executed on the 19th March, 1919 for a sum of Rs. 6,500.
The mortgaged property consisted of a shop which was delivered over in the possession of the mortgagee after the execution of the mortgage deed.
The mortgage deed had provided that the amount due under the mortgage should be repaid to the mortgagee within 15 years, whereupon the property would be redeemed.
It had also stipulated that if the payment was not made within 15 years, the mortgagee would become the owner of the property.
The mortgagor was Mangal 241 Ram who died and the respondent claims to be the heir and legal representative of the said deceased mortgagor.
In the plaint filed by the respondent, it was averred that the transaction was, in substance, a mortgage and the mortgagor 's right to redeem was alive even though the stipulated period of 15 years for the repayment of the loan had passed.
On these allegations, the respondent claimed a decree for redemption of the suit mortgage on payment of Rs. 6,500.
It appears that the original mortgagee Gangadhar had also died before the institution of the suit, and so, the appellant Murarilal was impleaded as the defendant on the basis that he was the only heir and legal representative of the deceased mortgagee Gangadhar.
The claim for redemption thus made by the respondent was resisted by the appellant on several grounds.
It was alleged that after the expiry of the stipulated period of 15 years, the property had become the absolute property of the mortgagee and it was urged that the original transaction was, in substance, and in reality, not a mortgage but a sale.
Several other pleas were also raised by the appellant in resisting the respondent 's claim, but it is unnecessary to refer to them.
The learned trial Judge framed appropriate issues which arose on the pleading of the parties.
In substance, he field that the claim for redemption made long after the 15 years ' period had expired could not be sustained.
Findings were made on other issues also and they were against the respondent.
In the result, the respondent 's suit was dismissed.
The respondent then took the matter in appeal before the Rajasthan High Court.
He urged that the view taken by the trial Court that the stipulation as to the mortgagor 's liability to re pay the loan within 15 years did not bar his present suit for redemption, because the said stipulation amounted to a clog on the equity of redemption and as such, could not affect the mortgagor 's right to redeem, and he added that the transaction, in substance, was a mortgage and not a sale, and so, his right to redeem was alive and could be effectively enforced by the present suit.
The High Court has upheld his first contention that the relevant 51 S.C. 16.
242 provision as to the period within which the mortgage amount had to be repaid amounted to a clog on the equity of redemption and could not be pleaded as a bar to the present suit.
But on the question about the character of the origi nal transaction itself, the High Court appears to have been inclined to take the view that the relevant clause on which the plea about the bar was raised did not really support the said plea, because it was by no means clear that even after the expiration of 15 years, the mortgagee was intended to be the absolute owner of the property.
On these findings, the decree passed by the trial Court dismissing the respondent 's suit has been reversed and the suit has been remanded to the trial Court to be disposed of in accordance with law.
It is against this order that the appellant has come to this Court by special leave.
Pending the appeal before this Court, both the appellant and the respondent have died, and their respective heirs have been brought on the record.
The first question which calls for our decision is whether the relevant clause on which the appellant relies makes the mortgagee the owner of the property at the end of the sti pulated period of 15 years.
The mortgage provides, inter alia, that after the house which was the mortgage property was delivered over to the mortgagee, it was open to him either to live in it, or to let it out to tenants.
The mortgagee was further given liberty to spend up to Rs. 35 for repairing the house and if more expenses were intended to be incurred, the &aid expenditure would be incurred through the mortgagor.
On the expenditure thus incurred the mortgagor was liable to pay interest at the rate of As. 0 6 0 per cent per month.
Then the document proceeded to add that the mortgagor would get the property redeemed on payment of the mortgage amount as well as the cost of Patta which may have been incurred by the mortgagee and the repairing expenses within a period of 15 years.
Then, occurs the relevant clause: "After the expiry of the stipulated period of 15 years, this shop would be deemed as an absolute transfer "Mala Kalam" for this very amount.
Till the mortgage money is paid, I shall have no concern with the shop.
" The High Court appears to have taken the view that the words "Mala Kalam" which occur at 243 the end of the relevant clause do not necessarily import the notion that the mortgage property would be the absolute property of the mortgagee.
According to the High Court, the said words literally mean "where there is no scope for having any say".
If that is the meaning of the relevant words, it seems difficult to accept the view that the document did not intend to make the mortgagee the owner of the property at the end of 15 years if the debt due was not paid within that period.
When the document says that there would be no scope for the mortgagor to say anything, it necessarily means, in the context, that the mortgagor would, in that case, have lost his title to the property, and that means the mortgagee would become the absolute owner of the property.
Therefore, we feel no difficulty in holding that if the terms of the document were to prevail, the appel lant 's contention that the present suit for redemption is barred, must succeed.
It is common ground that the amount due under the mortgage deed was not paid by the mortgagor or his heir within the stipulated period and that would extinguish the title of the mortgagor and make the mortgagee to be the owner of the property.
But the question is whether such a stipulation can be allowed to be pleaded as a bar to the respondent 's claim for redemption.
Just as it is common ground that if the terms of the document were to prevail, the suit would be barred, it is also common ground that if the doctrine that the clog on the equity of redemption cannot be enforced is to prevail in the present proceedings, the respondent 's action for redemption must succeed.
The fact that a stipulation of the kind with which we are concerned in the present case amounts to a clog on the equity of redemption, is not and cannot be disputed.
Therefore, the main question which arises in the present appeal is: does the equitable doctrine ensuring the mortgagor 's equity of redemption in spite of a clog created on such equity by stipulations in the mortgage deed apply to the present case? This question arises in this form, because the Transfer of Property Act did not apply to Alwar at the time when the mortgage was executed nor at the time when the 15 years ' stipulated period expired.
244 Mr. Sarjoo Prasad for the appellant contends that the High Court was in error in applying the equitable principle, because the said principle cannot be invoked in cases where the Transfer of Property Act does not apply.
In support of this argument, he has very strongly relied on an early decision of the Privy Council pronounced in 1870, in the case of Pattabhiramier vs Vencatarow Naicken and Narasimha Naicken(1).
In that case, the Privy Council was dealing with a Bye bil wuffa, or mortgage and conditional sale usufructuary executed in 1806 under which the mortgagees were put in possession.
The deed contained a condition that if the mortgagor failed to redeem within five years, the conditional sale was to be absolute.
The mortgagor failed to redeem within the stipulated period, and the mortgagee, without foreclosing the mortgage, sold the mortgaged pro perty.
Thereafter, the mortgagor 's representative sued to redeem the mortgage under section 8 of the Madras Regulation XXXIV of 1802.
The Privy Council held that the interest of the mortgagee after the expiry of the stipulated period had become absolute.
In dealing with this question, Lord Chelmsford who delivered the opinion of the Board observed that the form of security with which the Board was concerned had long been common in India, and he added that the sti pulations in such contracts were recognised and enforced according to their letter by the ancient Hindu law as well as under Mohammedan law; and in support of this statement, reference was made to certain passages from Colebrooke 's Digest on Hindu Law and Baillie 's introduction to his book on Mohammedan Law of Sale.
If the ancient law of the country, observed Lord Chelmsford, has been modified by any later rule, having the force of law, that rule must be founded either on positive legislation, or on established practice; and since neither any specific statutory provision had been cited before the Board, nor established practice in that behalf had been proved, the Privy Council upheld the mortgagee 's plea that he became the absolute owner of the property at the expiration of the stipulated period.
While pronouncing this decision, Lord Chelmsford, however, took the precaution of adding that while the Board was allowing (1) [1890] 13 Moore 's I.A. 560 245 the appeal, "it must not be supposed that their Lordships design to disturb any rule of property established by judicial decisions so as to form part of the Law of the Forum wherever such may prevail, or to affect any title founded thereon.
" As we will presently point out, the appeal of Pattabhiramier was pending before the Privy Council for as many as 10 years.
Meanwhile, Indian High Courts were enforcing the equitable principle that stipulations contained in mortgage deeds which amounted to clog on the equity of redemption could not be enforced.
In other words, the jurisdiction which courts of equity exercised in England by refusing to enforce clogs on the equity of redemption, was being exercised by High Courts in India.
However, before we refer to those decisions, it would be convenient to cite another decision of the Privy Council pronounced in Thumbusawmy Moodelly vs Hossain Rowthen & Ors(1).
In that case, the Privy Council held that the con tract of mortgage by conditional sale is a form of security known throughout India, and by the ancient law of India, it must be taken to prevail in every part of India, where it has not been modified by actual legislation or established practice, and so, must be enforced according to its letter.
In this case, Sir James W. Colvile who delivered the opinion of the Board, referred to the earlier decision of the Privy Council in Pattabhiramiers case(1), noticed the trend of judicial pronouncements made by the High Courts in India while Pattabhiramier 's case was pending before the Privy Council, and strongly reiterated the view that the said decisions of the High Courts were radically unsound.
He referred to the fact that unfortunately, Pattabhiramier 's case " slept for nine years, and that in the interval the Sudar Court, and afterwards the High Court which succeeded it, continued the course of decision which the former had given in 1858".
Then he mentioned the relevant decisions of the Madras and the Bombay High Courts and expressed the opinion that in trying to enforce principles of equity in dealing with stipulations contained in mortgage documents, the High Courts were really assuming the functions of Legislature.
So, it is clear that the Privy Council emphatically (1) I.L.R. (2) [1870] 13 M.I.A. 246 declared in 1875 that unless there is a legislative enactment or established practice to the contrary, terms in the contract of mortgage by conditional sale must be taken to prevail in every part of India and must be strictly enforced according to their letter.
Mr. Sarjoo Prasad naturally relies on these decisions and contends that so far as the State of Alwar is concerned, there is no legislative enactment to the contrary, nor is there any established practice on which the equitable doctrine could be pleaded by the respondent in support of his case that though 15 years have elapsed, his right to redeem still survives.
There are two other decisions of the Privy Council to which we may refer at this stage.
In Kader Moideen V. Nepean(1), the Privy Council was dealing with a case from Burma, and it observed that the Burmese Courts are directed, in the absence of any statutory law applicable to accounts against a mortgagee in possession, to follow the guidance of justice, equity, and good conscience.
Acting on this principle, the Privy Council accepted Mr. Haldane 's contention that there was no rule of abstract justice in taking the accounts of a mortgagee in possession, and that the Indian rule, which was embodied in section 76 of the Transfer of Property Act, should, though the Act had not been extended to Burma, be followed there in preference to the English practice.
It would thus be seen that the equitable principle underlying the provisions of section 76 was extended to the case on the specific ground that the Burmese Courts had been directed by the relevant statutory provision to follow the guidance of justice, equity and good conscience in the absence of any statutory law applicable to accounts against a mortgagee in possession.
This decision, therefore, is in line with the two earlier decisions of the Privy Council.
Similarly, in Mehrban Khan vs Makhna(2), where the Privy Council was dealing with the provisions in a mortgage deed conferring on the mortgagee upon redemption an interest in the mortgaged property, it was held that the said provisions amounted to a clog or fetter on the equity of redemption and as such, were void not only against the mortgagor, but also against the purchaser of his interest, (1) 25 I.A. 241 (2) 57 I.A. 168 247 since they were inconsistent with the very nature and essence of a mortgage.
In this case, again, section 28 of Regulation No. VII which was applicable to the North West Frontier Province, had expressly provided that in cases not otherwise specially provided for, the Judges shall decide according, to justice, equity and good conscience; and so, recourse to the equitable doctrine was permissible because there was the statutory mandate requiring the Judges to apply the said doctrine where there was no specific legislative provision in relation to the matter with which they were dealing.
Though the position of the Privy Council decisions is thus clear and consistent, the trend of the decisions of the High Courts in India continued to conform to the same pattern which was set up by the decision of the Madras High Court in the case of Venkata Reddi vs Parvati Ammal(1) and adopted by the Bombay High Court in Ramji bin Tukaram vs Chinto Sakharam (2).
The question was elaborately argued on several occasions before the said High Courts and the two earlier decisions of the Privy Council in the case of Pattabhiramier(3) as well as in the case of Thumbuswamy Moodelly(4) were cited and yet, the High Courts have con sistently adhered to the view that in dealing with mortgage transactions which contain unfair, unjust or oppressive stipulations unreasonably restricting the mortgagor 's right to redeem, the Court would be justified in refusing to enforce such stipulations and recognising the paramount character of the equity of redemption.
In Bapuji Apaji vs Sonavaraji Marvati(5), Westropp, C.J., has elaborately considered the relevant aspects of this question.
He referred to the two Privy Council 's decisions and observed that the doctrine of Ramji vs Chinto(2) had been uniformly followed in the Bombay Presidency in a multitude of cases, and he saw no reason to depart from that decision.
In expressing his firm adherence to the pattern of the law prescribed by the decision of the Bombay High Court in Ramji vs Chinto, the learned Chief Justice elaborately considered all the precedents on the point, trend of authorities bearing on the question, the opinion of scholars, and held that he was inclined (1)1 Mad.
H.C. Rep. 460 (2) 1 Bom.
H.C.Rep.
199 [1864] (3) [1870] 13 M.I.A. 560 (4) I.L.R. (5) I.L.R. 248 to take the law to be that which was settled in Ramji vs Chinto(1) and gave effect to it.
So far as the Bombay High Court is concerned, the practice consistently had been to follow the decision of Westropp, C.J. till the Transfer of Property Act was extended to Bombay.
In Madras, we find that same position.
In Ramasami Sastrigal vs Samivappanayakan(2), the majority view of the Full Bench was that in the Madras Presidency, where con tracts of mortgage by way of conditional sale have been entered into subsequent to the year 1858, redemption after the expiry of the term limited by the contract must be allowed.
The, point with which we are dealing in the present appeal was elaborately argued before the Madras High Court; the opinion expressed emphatically by the Privy Council was cited, but Turner, C.J., with whose opinion Muttusami Ayyar, J., agreed made a very significant observation after elaborately examining the merits of the questions "For these reasons," said the learned C.J., "we conceive that we shall not be wanting in due respect for the distinguished tribunal by whose decisions we are bound, if we follow the course they have pronounced there were strong reasons for adopting and apply the rules introduced, however erroneously, by judicial decisions in these provinces.
" That view has prevailed in the Madras High Court ever since.
These decisions show that the High Courts in India conformed to the view that whether or not there is a statutory provision directing the Judges to give effect to the principles of justice, equity and good conscience, it is their duty to enforce that principle where they are dealing with stipulations introduced in mortgage transactions which ' appear to them to be unreasonable, oppresive or unjust.
It is true that according to the strict letter of the ancient Hindu Law, a stipulation that the mortgagor shall pay the amount advanced to him by the mortgage within a specified period, was intended to be enforced.
The ancient Hindu law texts use the word "Adhi" to denote pledge of a movable or mortgage of immovable property.
IV 124 divides Adhi into two sorts, viz., one that is to be redeemed within (1) 1 Bom.
H.C. Rep. 199 Mad. 179 at P. 190 249 a certain time fixed (by agreement at the time of contracting the debt) or to be retained till the debt is paid off.
In regard to the first category of mortgages, if the money is not paid at the time fixed, the thing pledged or mortgaged would belong to the creditor (vide Yaj.
58 and as explained by Mitakshara) (1).
It also appears that if the mortgage is not redeemed even when the debt has grown to double of the principal by non payment of the interest agreed upon, the mortgagor lost his title over the mortgaged property; so that it must be conceded that under the strict letter of the Hindu law texts, if a mortgage deed contains a stipulation for the repayment of the mortgage amount within a specified period, at the expiration of the said period the mortgagor may lose his title over the mortgaged property.
The principle underlying this provision appears to be that Hindu law as enunciated by the ancient texts, attached considerable importance to a person keeping his promise.
Though that is so, we ought also to add that according to Sir R. B. Ghose, ordinarily, time was not of the essence of the contract of mortgage in Hindu law(1), and in support of this opinion the learned author quotes with approval Colebrooke 's opinion.
Basing himself on this position of the Hindu law, Mr. Sarjoo Prasad contends that we ought to assume that Hindu Law which was applicable to Alwar recognised the importance of compelling the mortgagor to perform his promise that he would repay the debt within a specified time and if he tailed to do so, he would lose his title over the mortgaged property.
He urged that the dispute between the parties in the present appeal should be decided in the light of this position of the Hindu law as well as the principles enunciated by the Privy Council in the cases of Pattabhiramier(3) and Thumbusawmy Moodelly (4).
In dealing with this argument, it would be relevant to observe that traditionally, courts in India have been con sistently enforcing the principles of equity which prevent the enforcement of stipulations in mortgage deeds which un reasonably restrain or restrict the mortgagor 's right to (1) Dr. Kane 's History of Dharmasastra Vol.
,128 (1) Ghose on 'The Law of Mortgage in India ' Tagore Law Lectures 1875 6, 5th Ed.
I. p. 56.
(3) [1870] 13 M.I.A. 560 (4) I.L.R. 250 redeem.
We may, in this connection, refer to some of the statutes which were in force in India.
The old Bengal Regulation III of 1793 by section 21 directed the Judges of the District and City Courts in cases where no specific rule existed to act according to justice, equity and good con science.
Similar provision occurs in section 17 of the Madras Regulation II of 1802.
The Bengal Civil Courts Act, 1887, and the Madras Civil Courts Act, 1873, contain similar pro visions in sections 37 and 16 respectively.
Likewise, in regard to Courts in the Mufassal of Bombay, Bombay Regulation IV of 1827 by section 26 provides that the law to be observed in the trial of suits shall be Acts of Parliament and Regulations of Government applicable to the case; in the absence of such Acts and Regulations, the usage of the country in which the suit arose; if none such appears, the law of the defendant, and in the absence of specific law and usage, equity `and good conscience.
In fact, in Namdeo Lokman Lodhi vs Narmadabai(1), this Court has emphatically observed that it is axiomatic that the courts must apply the principles of justice, equity and good conscience to transactions which come before them for determination even though the statutory provisions of the Transfer of Property Act are not made applicable to these transactions.
These observations, in substance, represent the same traditional judicial approach in dealing with oppressive, unjust and unreasonable restric tions imposed by the mortgagees on needy mortgagors when mortgage documents are executed.
There is one other circumstance to which we ought to refer.
We do not know what the true position of the Hindu law was in the State of Alwar at the relevant time.
In fact, we do not know what the provisions of the Contract Act were in the State of Alwar.
Even so, we think it would be reasonable to assume that civil courts established in the State of Alwar were like civil courts all over the country, required to administer justice and equity where there was no specific statutory provision to deal with the question raised before them.
Whether or not the Hindu law which prevailed in Alwar was similar to that prescribed by ancient Hindu Sanskrit texts, is a point on which no material is produced (1) ; 251 before us.
It may well be that just as in Bombay and Madras, notwithstanding the ancient provisions of Hindu Law which seem to entitle the mortgagee to insist upon the performance of a stipulation as to time within which the mortgage debt has to be paid, the High Courts had con sistently refused to enforce such stipulations, the Courts in the State of Alwar also may have adopted the same approach.
In the absence of any material on the record on the point, we are reluctant to accept Mr. Sarjoo Prasad 's argument that the doctrine of equity and justice should be treated as irrelevant in dealing with the present dispute.
In this connection, it is material to refer to the recent decisions pronounced by the Rajasthan High Court in which this position has been upheld either because it was conceded, or because the High Court took the view that the principles of equity were enforceable in dealing with mortgage transactions in Rajasthan.
In Amba Lal vs Amba Lal(1), the Rajasthan High Court held that section 60 and its proviso contained a general principle of law applicable to mortgages in this country, which should be applicable even in those places where the Transfer of Property Act may not be in force as such, but where its principles may be in force.
The property in question which was the subject matter of the mortgage was situated in the State of Udaipur.
Similarly, in the case of Seleh Raj vs Chandan Mal(2) , the Rajasthan High Court held that the principle underlying section 60 may well be regarded to be a salutary one and in accordance with the principles of equity, justice ,and good conscience.
Accordingly it took the view that though the Transfer of Property Act may not be in force in the territory in question, it would not be unreasonable to decide a case in accordance with the principles underlying the said section.
The property with which the Court was concerned in this case was situated in the State of Jodhpur.
The same principle has been applied in Himachal Pradesh (vide Nainu vs Kishan Singh)(").
(1) I.L.R. r957 Raj.
(2) I.L.R. (3) A.I.R. T957 H.P. 46. 252 Thus, it is clear that the equitable principle of justice, equity and good conscience has been consistently applied by Civil Courts in dealing with mortgages in a substantial part of Rajasthan and that lends support to the contention of the respondent that it was recognised even in Alwar that if a mortgage deed contains a stipulation which unreasonably restrains or restricts the mortgagor 's equity of redemption, courts were empowered to ignore that stipulation and enforce the mortgagor 's right to redeem, subject, of course, to the general law of limitation prescribed in that behalf.
We are, therefore, satisfied that no case has been made out by the appellant to justify our interference with the conclusion of the Rajasthan High Court that the relevant stipulation on which the appellant relies ought to be enforced even though it creates a clog on the equity of redemption.
In the result, the appeal fails and is dismissed with costs.

summary:
The respondent sought to redeem a mortgage executed in the State of Alwar in 1919.
By a stipulation in the mortgage deed the mortgagor agreed that if the debt was not paid within 15 years the mortgagee would become the owner of the property.
The respondent 's case was that the transaction was a mortgage and that he could redeem the mortgage even though the stipulated period was over.
The appellant resisted the suit on the ground that the transaction amounted to a sale and not a mortgage.
The trial Judge dismissed the suit holding that the claim for redemption was not maintainable after the expiry of the stipulated period.
The Rajasthan High Court on appeal reversed the decision of the trial Judge holding that the stipulation was a clog on the equity of redemption and remanded the suit.
The stipulation in question I was as follows, "After the expiry of the stipulated period of 15 years this shop would be deemed as an absolute transfer 'Mala Kalam ' for this amount.
Till the mortgage money is paid, I shall have no concern with the shop.
" Held:If the stipulation were to prevail, the use of the words 'mala kalam ', which meant that there would be no scope for the mortgagor to say anything, would indicate that the mortgagee became the absolute owner of the property.
But the stipulation, which was undoubtedly a clog on the equity of redemption, must fail and the suit for redemption must succeed.
240 The equitable principle of justice, equity and good conscience, long and consistently applied by Civil Courts in lndia, could be applied in the State of Alwar even though the Transfer of Property Act had no application there at the time when the mortgage document was executed or its period expired.
The strict provisions of the texts of Hindu Law in this regard would be of no avail.
Namdeo Lokman Lodhi vs Narmadabai, ; , applied.
Pattabhiramier vs Vencatarow Naicken and Narasimha Naicken, (1870) 13 M.I.A. 560 and Thumbusaway Moodelly vs Hossain Rowthen,I.L.R. I Mad. 1, considered.
, Venkata Reddy vs Parvati Ammal, I Mad.
H.C. Rep. 460, Ramji bin Tukaram vs Chinto Sakharam, I Bom.
H.C. Rep. 199 (1864), Bapuji Apaji vs Senavaraji Marvadi, I.L.R. 11 Bom.
231, Ramasami Sastrigal V. Samiyappanayakan, I.L.R. 4 Mad. 179, Amba Lal vs Amba Lal, I.L.R. , Seleh Raj vs Chandan Mal, I.L.R. and Nainu vs Kishan Singh, A.I.R. 1957 H.P. 46, referred to.


judgement:
Appeals Nos.
781 to 784 of 1963.
Appeals from the judgment and order dated March 17, 1961 of the Calcutta High Court in Appeal from Original orders Nos. 212, 433, 435 and 436 of 1959 respectively.
D. N. Mukherjee, for the appellant (in C.A. No. 781/63).
N. C. Chatterjee, Ramkrishna Pal, Taraknath Roy and D. N. Mukherjee, for the appellants (in C.As.
Nos. 782 784/63).
C. K. Daphtary, Attorney General, section C. Bose and P. K. Bose, for respondents Nos. 1 to 3 (in C.A. No. 781/63).
B. Sen, section C. Bose and P. K. Bose, for respondents Nos. 1 to 3 (in C.As.
Nos. 782 to 783/63) and respondents (in C.A. No. 784/63).
The Judgment of the Court was delivered by Ayyangar J.
These appeals are before us by virtue of certificates granted by the High Court under article 133(1)(c) of the Constitution and they raise for consideration the question of the proper construction of section 5(aa) of the West Bengal Estates Acquisition Act, 1953 (West Bengal Act 1 of 1954) as amended by West Bengal Act 25 of 1957.
The relevant facts in these four appeals are analogous and they raise the common question of law which we have already indicated.
For the disposal of these appeals it is sufficient therefore to refer to the facts of any one of them.
We propose to set out those of Civil Appeal 781 of 1963.
3 The Zamindar of Simlapal in the Collectorate of Bankura entered into a contract with the appellant Ram Krissen Singh and by a document dated September 3, 1946, granted him the right to cut the trees, in certain demarcated areas, of certain forests of the Zamindari on payment of a sum of Rs. 7,131/8/ .
Under the terms of the said document the period during which the appellant was given this right to cut trees was to end on April 14, 1955.
The appellant started the cutting operations and cut only for, the first few years, but thereafter action was taken by the Forest Officers of the State to prevent him from further cutting under the powers vested in them by the West Bengal Private Forests Act, 1948.
Thereupon, the appellant tiled a petition under article 226 of the Constitution for a writ of certiorari for quashing the orders passed against him and also for an injunction restraining the Forest Officers from taking delivery of possession and from cutting and disposing of the forests covered by his agreement.
By the time the petition was filed the West Bengal Estates Acquisition Act, 1953 (Act 1 of 1954), (hereafter referred to as the Act) had been passed and in the counter affidavit which was filed to this petition reliance was placed upon its provisions for contending that the "estate" belonging to the Zamindar in which the forest lay as well as all the rights to the trees therein, to whomsoever belonging, had vested in the State under section 5 of the Act by reason of a notification issued by the State Government under section 4.
By the date the writ petition came to be heard the West Bengal Legislature had, in view of certain decisions rendered by the Calcutta High Court which held that the terms of section 5 of the Act which specified the property or interest in property which would vest in the Government did not include the right to cut trees in a forest, which had been granted to a third person by the proprietor or intermediary before the date of the vesting, amended the said vesting section by introducing section 5 (aa) to have retrospective effect from the date of the commencement of the principal Act.
Section 5 (aa) read: "5.
Upon the due publication of a notification under section 4, on and from the date of vesting(aa) all lands in any estate comprised in a forest together with all rights to the trees therein or to the produce thereof and held by an intermediary or any other person shall, notwithstanding anything to the contrary contained in any judgment, decree or order of any court or Tribunal, vest in the State '; 4 After this amendment was brought to the notice of the Court the petitioner was allowed to amend his writ petition by adding allegations (a) regarding the construction of the said section, and ( b) its constitutional validity.
The petition then came on for hearing in December, 1958, and the learned Single Judge, by his judgment dated December 24, 1958 discharged the rule followcertain earlier decisions of his on the same point.
An appeal filed to the Division Bench under the Letters Patent was also dismissed but the learned Judges granted a certificate under article 133(1) (c) and that is how the appeal is before us.
The first, and possibly the only, question that now calls for consideration is whether the terms of section 5 (aa) are sufficient and apt to provide for the vesting of the right to cut the trees when such right belonged, on the date of the vesting, not to the intermediary or Zamindar but to another person to whom it had been granted under a contract with the said intermediary.
The argument addressed to us by Mr. Chatterjee learned counsel for the appellant was that it was only the land held or other rights possessed by an intermediary that became vested in the State and that cl.
(aa) did not deal with those cases where the right to the trees had been severed from the right to the land and belonged to a third person on the date of the vesting.
For this purpose learned counsel laid stress on two features of the clause.
The first was the use of the words "together with" and the second the words "and held by an intermediary or any other person".
Taking up, first, the word "together with" the submission was that it was only where the right to the trees constituted an integral part of the right to the land that a vesting was effected of the latter right and that where there had been a severance of the two rights it was only the land that remained in the intermediary that became vested and not the right to the tree, ,.
We feel unable to accept this argument.
We consider that the expression "together" is obviously used to denote not the necessity for integrality between the land and the right to cut trees by way of common ownership but as merely an enumeration of the items of property which vest in the State.
In the context, the word means no more than the expression "as well as" and imports no condition that the right to the trees should also belong to the owner of the land.
It may be added that the words "or to the produce thereof" occurring next also emphasis what we have just now pointed out, for if these words are read disjunctively, as they must, in view of the conjunction "or", the words would indicate that not merely lands in the estate and the right to the 5 trees but independently of them the right to the produce of the trees on the land would also vest in the State.
Coming next to the words "and held by an intermediary" learned counsel could not justifiably submit an argument that both the land and the right to the trees should inhere in the intermediary to attract the operation of the clause, because the words "held by an intermediary" are followed by "any other person".
Obviously, that other person i.e., person other than the intermediary, could have the right either to the land, a right to the trees or a right to the produce.
By the use of the expression "or any other person" therefore the legislature could obviously have intended only a person like the appellant who might not have any right to the lands which are held by the intermediary but has a right to the trees in that land.
Besides, it is not possible to read the words "held by an intermediary or any other person" to mean that they are applicable only to cases where the entirety of the interest to the land, to the trees and to the produce are vested in a single person be he the inter mediary or another person.
These words would obviously apply equally to cases where the land belongs to an intermediary and the right to the trees or to the produce of the trees to another person.
This apart, there is one further aspect Of the matter to which also reference might be made.
The amendment effected by the addition of cl.
(aa) to section 5 was admittedly necessitated by certain decisions of the High Court of Calcutta which held that where an intermediary had granted a right to cut trees or to forest produce, the rights so conferred were unaffected by the vesting provision in section 5 of the Act as it stood before the amendment.
If the argument now put forward by Mr. Chatterjee is accepted it would mean that the amendment has achieved no purpose.
Un doubtedly, if the words of the amendment, on their plain reading, are insufficient to comprehend the case now on hand the fact that the legislature intended to overcome a decision of the High Court could not be any determining consideration but, if as we find, the words normally bear that construction, the circumstance that the amendment was effected with a view to overcome certain decisions rendered under the original enactment is not an irrelevant factor to be taken into account.
Mr. Chatterjee next submitted that the scheme of the Act was the provision of compensation for every interest acquired by the State by virtue of the vesting under section 5 and that as there was no provision in the Act for compensating the interest of persons 6 like the appellant, the Court should hold that such.
an interest was not within the vesting section , ,.
5 (aa).
This is, of course, a legitimate argument, and if there had been any ambiguity in the construction of section 5 (aa), the circumstance referred to by learned counsel would certainly have great weight.
But in view of the plain words of section 5 (aa) which we have discussed earlier, we do not find it possible to accept the argument.
The absence of a provision for compensation might render the vesting section unconstitutional, and that indeed was the argument addressed to the High Court and a matter which we shall immediately consider, but it cannot detract from the clear operation of the words used in section 5 (aa).
A further point that was urged before the High Court was that the enactment was unconstitutional in that no provision was made for the award of compensation to persons in the position of the appellant whose rights to cut trees became vested in the State.
Mr. Chatterjee pointed out that the learned judges of the High Court had upheld the validity of the enactment by holding that compensation had, in fact, been provided.
Learned counsel drew our attention to the provisions quoted and submitted that the learned judges erred in their construction of these provisions and that, in fact, no compensation was provided, but this question about the constitutional validity of the amending Act does not really fall for consideration because learned counsel for the appellant did not contest the position that after the enactment of the 17th Amendment to the Constitution, and the inclusion of West Bengal Act 1 of 1954 among those specified in Schedule IX, the absence of a provision for compensation for the acquisition of the appellant 's rights would not render the West Bengal Act or the acquisition thereunder unconstitutional.
These appeals fail but in the circumstances of the case there will be no order as to costs.
Appeals dismissed.

summary:
The appellant had been granted by the Zamindar of Simlapal in West Bengal a right to cut trees in certain forests of the zamindari.
The exercise of this right was interrupted by action taken against him under the West Bengal Private Forests Act, 1948.
The appellant filed a writ petition under Article 226 of the Constitution of India.
In the meantime, the West Bengal Estates Acquisition Act, 1953, (Act 1 of 1954) was passed.
This Act provided that from the date specified in a notification under section 4 of the Act, property and interests specified in section 5 of the Act would vest in the State Government.
According to the Forest Department the right to cut trees enjoyed by the appellant was within the purview of section 5 of the Act and, therefore, had become vested in the State Government.
Certain decisions of the Calcutta High Court, however, went against this interpretation; it was held therein that a right to cut trees granted by an intermediary to a third person was not within the terms of section 5.
Thereupon the State Legislature of West Bengal passed Act 25 of 1957 which by adding section 5(aa) to the Act provided that upon the due publication of a notification under section 4, on and from the date of vesting, all lands in any estate comprised in a forest together with all rights to trees therein or the produce thereof and held by an intermediary or any other person shall, notwithstanding anything to the contrary contained in any judgment, decree or order of any Court or Tribunal, vest in the State.
The appellant 's writ petition, coming up for hearing after this amendment, was dismissed.
An appeal to the Division Bench also failed.
Appeal before the Supreme Court came by virtue of a certificate of fitness under Article 133 (1) (c) of the Constitution.
The question for consideration was whether the terms of section 5(aa) were sufficient and apt to provide for the vesting of the right to cut the trees when such right belonged, on the date of vesting, not to the intermediary or zamindar but to another person to whom it had been granted under a contract with the said intermediary.
HELD : (i) The words "together with" used in section 5(aa), on the basis of which it was contended by counsel for the appellant that it was only where the right to the trees constituted an integral part of the right to the land that a vesting was effected of the latter right, meant in the context of the section no more than the expression 'as well as ' and imported no condition that the right to the trees should also belong to the owner of the land.
Also, it was not possible to read the words "held by an intermediary 2 or any other person" to mean that they were applicable only to cases where the entirety of the interest to the land, to the trees, and to the produce were vested in a single person be he the intermediary or another person.
These words would obviously apply equally to cases where the land belonged to an intermediary and the right to the trees or to the produce of the trees to another person.
In construing the section, moreover, the fact that it was amended to overcome certain decisions rendered under the original enactment was not an irrelevant factor to be taken into account.
[41 G; 5B D, 5G].
(ii) From the mere fact that there was no provision in the Act for compensating the interest of persons like the appellant, the Court could not hold that such an interest was not within the vesting section section 5(aa).
The absence ' of a provision for compensation might render the vesting section unconstitutional, but it could not detract from the clear operation of the words used in section 5(aa).
After the passing of the 17th Amendment to the Constitution and the inclusion of West Bengal Act 1 of 1954 among those specified in Schedule IX, the absence of a provision for compensation for the acquisition of the appellant 's rights would not render the West Bengal Act or the acquisition thereunder, unconstitutional.
[6B; 6E].