judgement:
ivil Appeal No. 785 of 1988.
From the Judgment and Order dated 6.3. 1987 of the Bombay High Court in Writ Petition No. 1166 of 1981.
Appellant in person.
Dr. Y.S. Chitale and V.B. Joshi for the Respondents.
The Judgment of the Court was delivered by AHMADI, J.
This is an appeal by Special Leave under Article 136 of the Constitution of India from the Judgment of Bombay High Court dated 6th March, 1987 in Writ Petition No. 1166 of 1981.
The appellant, C.D. Tase, joined the college run by Vidhya Prasarak Mandal, Thane, on June 15, 1971 as a lectur er in the pay scale of Rs.300 25 600 prescribed by the Uni versity Grants Commission pursuant to the recommendations made by the Second Pay Commission.
By Government Resolution No. USG 1167 U dated November 6, 1967, the Government of Maharashtra had accepted in principle the Government of India scheme based on the recommendations of the University Grants Commission for improvement of salary scales of uni versity teachers and teachers in affiliated Arts, Science, Commerce and Secondary Training Colleges.
Accordingly, the Government of Maharashtra directed all the Universities in the State to implement the pay scales recommended by the Commission.
The scales recommended were to take effect from April 1, 1966.
Three scales were recommended for lecturers, namely, Rs.300 25 600 (Lecturers, Junior Scale), Rs.400 30 640 40 800 (Lecturers, Senior Scale) and Rs.700 40 1100 (Senior Lecturers).
The Universities in turn directed col leges affiliated to them to implement the recommendations accepted by the State of Maharashtra.
The appellant 's col lege was at the material time affiliated to the University of Pune.
The Additional Director of Education, Maharashtra State by his letter No. S 95/127 A 739 dated January 18, 1968 addressed to the Principals of non Government Arts, Science, Commerce and S.T. Colleges in the State directed the colleges to implement the recommendations made by the Second Pay Commission as approved by the State of Maharashtra.
The University in turn by its letter No. PU/Stat/F.3/A/67 68/236 dated February 7, 1968 directed the Principals of all colleges to implement the new pay scales with effect from April 1, 1966.
Thus, in the category of lecturers (excluding Principals) three scales as stated above were prescribed subject to the condition that the number of senior lecturers and lecturers, senior scale, was not to exceed 1/4th of the total strength of lecturers.
It was left to the Universities to formulate norms which the lecturers must satisfy for being considered for the posts of senior lecturers and/or lecturers, senior scale, as the case may be.
The High Court while disposing of the writ petition filed by the appellant and his two companions, Writ Petition No. 1166 of 1981, observed: "There does not appear to be much dispute that if the report of the Second Pay Commission of University Grants Commission was implemented in letter and spirit, the petitioners would have respectively qualified for the category of Senior Lecturers in the pay scale of Rs.700 40 1100 on 2nd March, 1974, 15th June, 1974 and 15th June, 1975 respectively.
" It is evident from the above observation of the High Court that the appellant was entitled to placement in the senior scale of Rs.700 401100 with effect from June 15, 1975.
In the meantime, sometime in 1978, a decision was taken to implement the Third Pay Commission Report prescribing a running scale of Rs.700 1600 for teachers with effect from January 1, 1973.
All the Universities in the State were directed to implement the new scale of Rs.700 1600 pre scribed for senior lecturers.
This raised the question whether placement of teachers already made after January 1, 1973 in the higher pre 1973 scales would be valid on the implementation of the revised scale w.e.f. January 1, 1973.
By Government Resolution No. USG 1178/24585/XXXII (Cell) dated June 27, 1978, it was clarified that placement of teachers made in one of the higher pre 1973 scales of 400 800 and Rs.700 1100 on or after January 1, 1973 would be considered valid and protected subject to the prescribed conditions.
The High Court points out that if the above clarification is accepted as correct the appellant would be entitled to placement in the high scale of Rs.700 1100.
However, relying on the University of Pune 's subse 740 quent letter of March 10, 1978 whereby the college manage ments were directed to ignore the pay scales prescribed pursuant to the recommendations of the Second Pay Commission in the case of teachers who became entitled to the higher scale after January 1, 1973, it was submitted before the High Court that since the new pay scale of Rs.7001600 was made operative from January 1, 1973, lecturers who were not given the benefit of the revised scale of Rs.700 40 1100 could be fixed in the new scale of Rs.700 1600 with effect from January 1, 1973 as per the Circular No. Aff/Recg/193 of 1977 dated May 19, 1977.
This submission made on behalf of the University authorities found favour with the learned Judges of the High Court as they thought that there was 'nothing very inequitable ' about the decision taken by the university authorities.
The appellant who argued the case in person submitted that the High Court failed to appreciate the fact that the decision of the university authorities was highly prejudi cial to the appellant and others similarly situated, as it resulted in substantial monetary loss.
It must be realised that the. decision to implement the recommendation of the Third Pay Commission w.e.f. January 1, 1973 was taken some time in 1978.
In the meantime, several lecturers of affili ated colleges were placed in the higher scale of Rs.700 1100.
That is why, it became necessary to seek a clarifica tion from the Government whether the placement allowed to such lecturers in the higher scale would be treated as valid having regard to the implementation of the new scale of Rs.700 1600 w.e.f.
January 1, 1973.
As pointed out earlier, the Government by their Resolution of June 27, 1978 clari fied that such placement in the higher scale of Rs.700 1100 was valid subject to the fulfilment of the prescribed condi tions.
The placement of such lecturers in the higher scale of Rs.700 1100 was therefore directed to be protected while bringing them on the revised scale of Rs.700 1600.
It fol lows that if the appellant had been placed in the higher scale of Rs.700 1100 when he became entitled to it on June 15, 1975 his pay would have been protected as per the clari fication while being placed in the revised scale of Rs.700 1600.
The appellant is, therefore, justified in making a grievance that merely because the college/ university au thorities did not place him in the higher scale of Rs.7001100 w.e.f. June 15, 1975 he cannot be made to suffer on the ground that he will get the benefit of two reports simultaneously if he is first placed on the scale of Rs.700 1100 and, thereafter brought on the scale of Rs.700 1600.
It is evident from the letter No. BY/Genl/1981 82 dated January 28, 1982 addressed to all the Principals of Arts, Science and Commerce Colleges by the Administrative Officer of Higher Edu 741 cation Grants, Bombay Region, Bombay that the college au thorities were directed to furnish information in the pre scribed form in respect of teachers who were entitled to the benefit of the pre revised scales of Rs.700 1100 and Rs.400 800.
The Principal of the college forwarded the information to the Administrative Officer under his letter ACC/ TNE/2080 dated March 13/15, 1982 in the prescribed proforma which includes the name of the appellant as one of the persons entitled to the same benefit.
We may incidental ly mention that his two companions in the High Court Dr. M.P. Kendurkar and Professor N. Krishnan were also included in the list of eligible lecturers entitled to the higher scale of Rs.700 1100.
The subsequent Resolution No. USG 1178/ 160692(19) UNI/4 dated April 7, 1983 issued by the State of Maharashtra also stipulates as under: "The question of placement of these teachers was, therefore, under consideration of Govern ment for sometime past.
Government is now pleased to direct that the placement of only those teachers whose names were recommended for placement in the senior lecturers scale of I.S.S. viz. Rs. 1100 and 400 800 to the universities by the respective colleges man agements prior to 4th October, 1975 i.e. the date of issue of Government Resolution assign ing revised University Grants Commission recommended scales but their placement was not effected due to some reason or the other, should be made with effect from the dates the placement is approved by the concerned Univer sities.
" It is evident from the above decision that lecturers whose name were recommended for placement in the higher scale before October 4, 1975 were entitled to such placement before being brought over to the revised scale of Rs. 700 1600.
The appellant was entitled to placement in the higher scale of Rs.700 1600 w.e.f.
June 15, 1975.
The college authorities failed, for no fault of the appellant and his companions, to forward their names to the University in the prescribed proforma for reasons best known to them.
To deny the benefit to which the appellant and his companions were entitled on account of the lapse on the part of the college authorities would be highly unfair and unjust.
The High Court, however took the view that there was 'nothing very inequitable ' about the decision of the University to deny such placement to the appellant and his companions, but it is obvious that if they had been granted placement on the due dates they would have been entitled to higher salary and allowances related to basic salary e.g. dearness allowance which is a certain percentage of basic 742 salary, would have gone up.
In addition they would have earned increments by the time they became entitled to the revised scale of Rs.7001600.
It is, therefore, obvious that the decision of the university not only appears to be 'ine quitable but also discriminatory inasmuch as it sought to treat equals as unequals by protecting those who had secured the placement and denying the same to others whose names the college managements had failed to forward in good time.
We are, therefore, of the opinion that the appellant was enti tled to placement in the higher scale of Rs.700 1100 before being brought over to the revised scale of Rs.700 1600.
For the above reasons, we allow the appeal and set aside the impugned order of the High Court dated March 6, 1987.
We direct the respondents to grant the benefit of placement in the higher scale of Rs.700 1100 to the appellant from the date he became entitled to the same i.e. June 15, 1975 and thereafter fix his pay in the revised scale of Rs.700 1600.
The appellant will be entitled to the monetary benefit accruing to him on the implementation of the above directive which should be worked out and paid to him within three months from today.
The appellant will also be entitled to cost from the University of Bombay which we quantify at Rs.2500.
Before we part, we may mention that the two companions of the appellant who were writ petitioners in the High Court have not approached this Court under Article 136 of the Constitution but we find that they were similarly situated and were entitled to placement in the higher scale of Rs.700 1600 w.e.
L March 2, 1974 and June 15, 1975.
We hope that the authorities will extend the same benefit to them also notwithstanding their failure to approach this Court, perhaps on account of cost constraint.
It would be highly unfair to deny to them the monetary benefits to which they are legally entitled.
We do hope that the concerned authori ties will not drive them to another round of litigation.
G.N. Appeal al lowed.

dataset_name: IN-Abs

summary:
The appellant joined as a Lecturer in 1971, in a College affiliated to Pune University in the scale of Rs.300 600 prescribed by the University Grants Commission.
Earlier, in 1967 the State Government accepted in principle the Govern ment of India Scheme based on recommendations of the Univer sity Grants Commission for improvement of pay scales of all university and college teachers, and issued directions to all universities in the State.
The Universities in turn directed all the affiliated colleges accordingly.
The new scales were Rs.300 25 600 (Lecturers, Junior Scale), Rs.400 30 640 40 800 (Lecturers, Senior Scale) and Rs.700 40 1100 (Senior Lecturers) and were to take effect from 1.4.1966.
The number of Senior Lecturers and Lecturers (Sr. Scale) was not to exceed 1/4 of the total strength of Lecturers.
Again, in 1978, it was decided to implement the next report, viz, the Third Pay Commissioner 's report which prescribed a running scale of Rs.700 1600 with effect from 1.1.1973.
All the Universities in the State were directed to implement the same.
A question was raised as to whether placement of teachers already made after 1.1.1973 in the pre 1973 scales would be valid on the implementation of the revised scale with effect from 1.1.1973.
The Government clarified that such a placement would be valid and protect ed, subject to the prescribed conditions.
However, the Pune University directed the College Managements to ignore the pay scales prescribed by the earlier Pay Commission in case of teachers who became entitled to the higher scale after 1.1.73.
Against this, the appellant and two others ap proached the High Court by way of a Writ Petition.
However, the High Court felt that there was 737 nothing very inequitable about the decision taken by the University authorities and declined to interfere.
This appeal, by special leave, is against the said judgment of the High Court.
Before the Court, the appellant argued that the High Court failed to appreciate the fact that the decision of the University authorities was highly prejudicial to the appel lant and others who were similarly situated, as it resulted in substantial monetary loss.
Allowing the appeal, HELD: 1.
The decision of the university not only appears to be 'inequitable ' but also discriminatory inasmuch as it sought to treat equals as unequals by protecting those who had secured the placement and denying the same to others whose names the college managements had failed to forward in good time.
The appellant was entitled to placement in the higher scale of Rs.700 1100 before being brought over to the revised scale of Rs.700 1600.
[742B] 2.
The Lecturers whose names were recommended for place ment in the higher scale before October 4, 1975 were enti tled to such placement before being brought over to the revised scale of Rs.700 1600.
The appellant was entitled to placement in the higher scale of Rs.700 1600 w.e.f.
June 15, 1975.
The college authorities failed, for no fault of the appellant and his companions, to forward their names to the University in the prescribed proforma for reasons best known to them.
To deny the benefit to which the appellant and his companions were entitled on account of the lapse on the part of the college authorities would be highly unfair and un just.
The High Court, however took the view that there was 'nothing very inequitable ' about the decision of the Univer sity to deny such placement to the appellant and his compan ions, but it is obvious that if they had been granted place ment on the due dates they would have been entitled to higher salary and allowances related to basic salary e.g. dearness allowance which is a certain percentage of basic salary, would have gone up.
[741F H; 742A] 3.
The respondents are directed to grant the benefit of placement in the higher scale of Rs.700 1100 to the appel lant from the date he became entitled to the same i.e. June 15, 1975 and thereafter fix his pay revised scale of Rs.700 1600.
The appellant will be entitled to the monetary benefit accruing to him on the implementation of the above 738 directive which should be worked out and paid to him within three months.
[742C D] [The Court expressed the hope that the authorities will extend the same benefit also to the two companions of the appellant notwithstanding their failure to approach this Court, perhaps on account of cost constraint, and not drive them to another round of litigation.] [742F]


judgement:
ivil Appeal No. 1504 of 1980.
From the Judgment and Order dated 20.5.
1980 of the Delhi High Court in Regular Second Appeal No. 18 1 of 1979.
S.K. Mehta, D. Mehta, A. Vachhar and Atul Nanda for the Appellant.
Dr. Shankar Ghosh and Ashok Grover for the Respondent.
The Judgment of the Court was delivered by RANGANATHAN, J.
The appellant, a cooperative society, (hereinafter referred to as 'the society '), resists a suit for possession 650 laid by the respondent, contending that the property in question is a 'building ' within the meaning of the Delhi Rent Control Act, 1958 ( 'the Act '), the eviction of a tenant from which can be sought by the landlord only from a rent controller on grounds specified in the Act and not by a suit in a civil court under the Transfer of Property Act read with the Code of Civil Procedure (C.P.C.).
This contention of the appellant has been rejected, concurrently, by the Assistant District Judge, the Additional District Judge and the High Court.
In this appeal, counsel for the appellant seeks to persuade us that all the three courts have decided erroneously a substantial question of law raised by it and that they ought to have dismissed the suit instead of de creeing it.
To get a cogent idea of the history of the litigation concerning this property and to properly appreci ate the contentions urged, it is necessary to set out the relevant facts at some length.
2(a) The property in question originally belonged to one Khan Din Hussain Din but it came to be vested in the Custo dian of Evacuee Property on the owner being declared an evacuee on the eve of the partition of the country.
The Custodian leased it out to one Pritam Chand who occupied it in September 1947.
There is on record an undated survey report in a "proforma for residential premises" which per tains to the period when Pritam Chand was in occupation.
It described the property covered by it thus: 1. Locality or street Hamilton Road, Delhi 2.
H.C. No. III/1403 1406 3.
No. & size of rooms 15 ' x 15 ' shed, 3 ' x 8 ' 10 'x 10 ', 10 'x 10 ' 10 ' x 10 ' Ver 40 ' x 8 ' shed 35 ' x 10 ' Open space 50 ' x 45 ' use as Motor Lorry Workshop.
(b) Subsequently, the allotment in favour of Pritam Chand appears to have got cancelled and the Society applied for the allotment of the property to it for starting a factory.
The application was granted and the property was allotted, by way of a lease, to the Society by an order dated 28.3.1949.
It is necessary to extract this order in full: ORDER "Subject: Allotment of industrial premises.
651 With reference to your application dated I have to inform you that Indus trial Establishment known as open compound at Hamilton Road (Portion of Jai Hind Motor Works) with 25 Front and 50 deep together with all the machinery and accessories kept there in has been allotted to you.
Possession of the factory/workshop/Industrial establishment will be delivered to you immediately after your fulfilling the following conditions namely: 1.
Delivering at this office a communication addressed to the Custodian undertaking to pay such deposit and rent as may be assessed and required to be paid and to execute the lease on the prescribed form.
Filling a duly attested affidavit as per form 'A ' attached herewith.
Possession of stocks of consuma ble goods and other stores and material, if any, will be given to you for safe custody as caretaker until the disposal thereof.
Assistant Custodian Industrial is hereby required to deliver the possession of factory/workshop/Industrial Establishment and other moveable property kept therein (to) the above named allottee after satisfying himself that he has fulfilled conditions laid down above.
If necessary, the enforcement section will help the Assistant Custodian and the allottee of the property in accordance with the procedure prescribed under law.
" (c) A report on the use of the allotted plot submitted on 9.1.51 is of some relevance.
It clarifies that no machin ery had been allotted to the Society and that power was being fitted.
It says then: "I have found nobody at the premises except a Gorkha Chowkidar.
I remember it very well that in the presence, I gave the possession of the above said plot to allottee who promised that they want to start a factory very soon, but it is regretted that no advantageous use of the premises is being made by the Co operative.
However, I have seen new power connection being fitted on the premises.
The work might have (then) set back due to non availability of power.
Any how we must consult the file and subsequently call the allottee.
" 652 (d) It appears that Pritam Chand was attempting to get the allotment to the Society cancelled on the allegation that it had unauthorisedly sublet the property.
A letter was written, in this context, by the Assistant Registrar of Cooperative Societies to the Custodian on 15.5.1954.
This letter, on the subject of"Allotment of Industrial Premises", reads as under: "Kindly refer to your order No. DC/IV/A/185 dated the 28th March, 1949 on the above sub ject under which the house No. 2939 III/1403 1406 on Industrial Establishment known as open compound at Hamilton Road (Portion of Jai Hind Motor Works with 25 ' front and 56 ' deep) together with all machinery and accessories kept therein, was allotted to the Prabhat Manufacturing Co operative Industrial Society Ltd.
Before allotment one Shri Pritam Chand was occupying the whole premises.
He is now again trying to take the premises allotted to the society.
He therefore filed an applica tion to the Assistant Custodian against the Society alleging that the premises had been sublet to Shri Ajit Singh Duni Chand and Banwari Lal.
The Assistant Custodian served the Society with a notice for cancellation of allotment of the said premise.
The fact is that Shri Ajit Singh, is the Secretary of the Society and Shri Duni Chand and Banwari Lal were its members.
The question of subletting does not arise.
A Government loan of Rs.4,000 was also advanced to the society under the Rehabilitation Scheme.
Under the above circum stances I would request you to allow the Society to function in the allotted premises, so that it may be able to repay the Government loan advanced to it." (e) The Society made an attempt to have the assessment of rent reduced.
The order of the Deputy Custodian dated 31.5.
1955, under which this relief was granted reads thus: "This is revision petition by M/s Prabhat Mfg. Cooperative Socio Industrial Society Ltd., against the assessment of rent.
The petitioner has got a plot.
There is a small shed on this plot also.
The petitioner was assessed on the rental of Rs.50 on the basis of the M.A.R. It is contended before me that there is no M.A.R. for property No. 2939 653 but there is joint M.A.R. for house No. 1403 6.
From the copy of the assessment sheet, (it) appears that 1403 1406 is equivalent to 2939 40.
It is not clear therefore whether new number has got an assessment of Rs.50 or there are several numbers included in this assess ment.
I find that I inspected this house on 20th March 1953 and asked the S.D.O. to let me know the value of the plot and probable rent.
At that time he had assessed the value of the plot at Rs. 10970.
The present value of course will be more than that.
However, on the basis of this valuation, the rent of the petition er 's plot if it were a vacant plot would work out to Rs.327 per month exclusive of house tax.
There is a small shed also which is alleged to be self constructed.
Considering therefore all the circumstances I fix the rent of the petitioners plot at Rs.35 per month.
As the petitioner is a cooperative society, I direct that rate should have retrospective ef fect.
The petitioner is, however, directed to clear the arrears within fortnight." (f) After this order was passed, a survey report was made on 15.7.1955 which describes the property in the occu pation of the Society thus: 1.
No. 2.
Road, Street, lane or Mohalla Hamilton Road 3.
Municipal House No. (old) III/l/4 (1403 6) old 2939 (new) 4. 5.
Accommodation available Plot with tin shed No. & Size of rooms store 27 ft.
North rooms, verandah, kitchen, 61 ft.
East bath, courtyard etc.
64.8 ft.
West 24 ft.
South 15.
Description of present Manufacturing concern occupation i.e. business Motor accessories and service (Govt.
or Pvt.) tools Regd.
No. 199 other occupation) dated 24.3.49.
Rent previously fixed Rs.50 reduced to for the accommodation Rs.35 3.(a) Having thus got the plot on lease, the Society tried to acquire the property for itself.
There is on record a letter of the Society dated 21.1.1957 requesting that the "industrial plot" may be perma 654 nently allotted to it.
However, the Custodian chose tO sell the property by auction on 15.7.60 in favour of one Dina Nath (the predecessor in interest of the present respondent Banwari Lal).
The upset price was Rs.21,000 and the sale was for Rs.23,000.
Unfortunately, however, except the informa tion that sale deed in favour of Dina Nath was executed on 13.7.61, there is no document on record about the exact nature and condition of the property thus sold.
(b) The Society moved to have the sale set aside on the ground that, as the value of the property was less than Rs. 10,000, it should have been sold to the Society itself as the allottee and not to an outsider.
In the course of these proceedings, it made an application on 15.10.60 to the concerned authority for a copy of the order declaring the property to be saleable, the first paragraph of which reads thus: "The above mentioned property an Industrial Plot on Hamilton Road No. 2939 (old No. 1403 1406) was sold by auction on 15.7.60." (c) The application of the Society was, eventually, rejected by the Chief Settlement Commissioner on 25.8.1961 and so the appellant filed a revision petition before the Government of India.
In this petition, it is seen, the Society tried to take advantage of a Press Note of the Government which enabled an allottee who had invested more than Rs.30,000 in a property to get a priority when the property came to be allotted but this attempt was also unsuccessful.
Certain reports submitted by the concerned authorities in the context of the Society 's application have been placed on record.
On 21.3.
1962, the Executive Engineer reported.
"The land under property in question has been assessed at Rs. 17,500 while the structure value of it has been assessed at Rs.3,883 giving a total value of Rs.21,383.
The reserve price of this property has been fixed at Rs.21,000" Reports submitted by one T.C. Dewan contain the following observations: "I have been to the premises and obtained a list of machinery now installed in the prem ises.
The copy of the letter dated 21.3.56 addressed to the C.S.C. is also attached.
M/s Prabhat Mfg.
Co op.
Industrial Society want to have the premises transferred to them as Industrial concern.
655 The property has already been auctioned on 15.7.1960.
The sale certificate has been issued in favour of Dina Nath s/o Charan Das on 13.6.61." "I have to submit further that a part of the superstructure was evacuee and was valued with the plot.
Some portion has been made as a temporary shed etc.
The position can be made clear by consulting the valuation schedule on the property.
The portion which was included in the valuation at that time means at the time of auction as noted it was definitely an evacuee structure.
The rest is non evacuee raised by the occupant.
" It also appears that, in the course of these proceedings, Ajit Singh, on behalf of the Society made a statement to the following effect in May, 1962: "The above Society is in occupation of the premises since the year 1949.
There was only a shed built in the premises but the other portion was open plot when it was allotted to us.
The entire machinery has been installed by the Co op.
Society.
I can supply inventory of the machinery which has been installed by the Society would be produced on 8.5.62." (d) The Society 's revision petition was rejected on 6.8.62.
The order of the Joint Secretary to the Government of India starts with a recital that the Custodian had allot ted "an open plot of land" to the society for industrial purposes, and that the Society had erected "a temporary structure on this plot and also installed some machinery".
In para 3, the contention of the Society is stated to be "that the plot was allotted to the Society for industrial purposes and they erected a building and installed machinery worth about Rs.30,000 in it.
" The order proceeds: ". the valuation officer was asked to assess the value of the land, building and machinery.
After a spot inspection he reported that the value of land and building was about Rs.21,000, whereas the value of the machinery installed in March, 1956, according to the vouchers produced before him by the Society came to only Rs.6,585.
Hence, the value 656 of the machinery did not exceed that of the land and building.
Further, the Press Note of the 22nd March, 1956 required such allottees to submit applications to the Regional Settle ment Commissioner concerned with a certificate from the Director of Industries of the State that they had established factories under the Commissioner, New Delhi.
It is, therefore, clear that this case is not covered by the Press Note of 22nd March, 1956.
The property in their occupation was rightly auctioned.
Now we come to the third chapter of the story.
Dina Nath, the purchaser of the property filed suit No. 155 1/62, in the court of Rent Controller, Delhi seeking eviction of the appellant society from the property in question on the ground of sub letting, misuser, default in payment of rent and requirement of the premises for the bona fide use of the owner.
The Rent Controller dismissed the petition.
It is seen from the order of the Rent Controller that the owner had alleged that a portion of the demised premises had been sublet, assigned or otherwise parted with to M/s. Malviya Industries after 9.6.1952 without obtaining the written consent of the landlord.
The respondent had shown that Malviya Industries was a proprietory concern of Ajit Singh, who was in possession of the whole premises as a Secretary of the appellant society and that, apart from the fact that the goods manufactured by the society were sold through Malviya Industries, there was nothing to show that any particular portion of the property in question was exclu sively used by Malviya Industries.
It also appears that the owner alleged that he required the premises in question for purposes of re building it.
The controller held that as the property had been given to the tenant for residential pur poses and the proposed reconstruction would change the character of the premises, this was not permissible under the Act, and therefore, the landlord could not be said to require the premises bona fide for re building.
On behalf of the appellant it is urged that the fact the landlord filed a rent control eviction petition as well as a finding in the order of the Rent Controller dated 16.1.1967 clearly show that the property in question was a 'building ' falling within the scope of the Delhi Rent Control Act.
It is also pointed out, from a copy of the application for eviction placed on record, that in para 5 of the application it was stated that a workshop was situated on the piece of land and about 20 people (approx.) were working therein and the details of the accommodation were shown as comprising of one tin shed as shown in the attached plan.
657 (b) In 1964 the society filed suit No. 294 of 64 against Dina Nath and others.
In this suit it prayed for an injunc tion restraining the defendants from interfering with its possession and lawful enjoyment of the property, inter alia, by preventing the plaintiff from carrying out the necessary repairs to the premises in question.
This suit was filed during the pendency of the earlier suit filed in the rent controller 's court.
It was alleged that the portion of the roof had started leaking and that, when the plaintiff began to make the necessary repairs to the premises, the defend ants began to interfere illegally with its possession with the ulterior motive of securing the possession of the prem ises otherwise than in due course of law.
The defendants resisted this suit.
It appears that this suit was eventually dismissed but further details are not available.
(c) It also appears that Banwari Lal had filed a suit for permanent injunction against the Society restraining it from erecting any new structure on, or making any additions or alterations to the property in question.
It is said that in one of the affidavits filed in the course of these pro ceedings Banwari Lal stated as follows: "3.
That the defendant is tenant of ground floor consisting of a tin shed in house No. 2939, Hamilton Road, Delhi at a monthly rent of Rs.35 which is a single storeyed property.
That the defendant has got no right title and interest to erect any new structure on the first floor or to make any additions and alterations in the aforesaid property without the consent of the plaintiff.
" There is no further information available regarding this suit.
(d) One more proceeding instituted by the appellant society has also to be referred to: On 15.2.1968, the appel lant filed an application under section 44 of the Delhi Rent Control Act, 1958 (Suit No. 169 M of 1968 69), seeking permission to make repairs to the premises in question.
This application was resisted by the owners on a preliminary objection that the petitioner were not tenants of any prem ises within the meaning of Delhi Rent Control Act.
This application was dismissed on 9.3.1972.
It is necessary to extract paragraph 5 of this order since it is relevant to the controversy presently in question: "5.
I also find it established on record that the petitioner society is a tenant only with respect to an open site and the 658 structure thereon namely, the shed itself constructed by the tenant.
It is admitted (that) by Ajit Singh, who states himself to be the Secretary of the Society by the custodian, as it was an evacuee property.
A reference to the allotment order exhibit RW 1/1 which was produced by the clerk of the office concerned, examined as R.W. 1 shows that the subject matter of the allotment of the petitioner society was an 'Open Compound '.
It is further clear from the copy of an order exhibit R.W. 1/1 that it was stated by the tenant, namely the petitioner society before the custodian ' that the shed was self constructed and the rent was got reduced from Rs.50 per month to Rs.35 per month.
This continues to be the rent upto date, according to be that the petitioner society continues to be in occupation of the same property, as it was, when it was allotted to them by the Custodian, and it is estab lished from the evidence of the clerk of the office of the Custodian.
R.W. 1 and the orders produced by him, namely R.W. 1/1 and R.W. 2/2, as well as the survey report exhibit R.W. 1/3 that what was allotted to the petitioner society, was only a plot and that the shed was self constructed.
The petitioner has failed to substantiate the contention that the respond ent himself has treated him/them/as a tenant because no certified copy of the previous pleadings has been placed on the file.
The petitioner, therefore, being a tenant only with respect to open site, which does not come within the definition of a 'premises ', as contemplated by the Delhi Rent Control Act the petition under sec.
44 of the act, is not entertainable.
The suit out of which the present appeal arises has to be understood in the context of the above previous histo ry.
In 1977 Banwari Lal instituted suit No. 318/77 against the Society seeking eviction of the Society from "the plot of land in question".
It was alleged that the plaintiff was the owner of the above said plot and that the defendant had put up a shed thereon.
It was alleged that the Society had been occupying the property much earlier and that the plain tiff who came to the scene much later had mistakenly thought that the defendant was the tenant of both the land and the shed put up thereon and accordingly filed the petition under the Rent Control Act for evicting the Society.
Subsequently it was said, after examining the records of the Custodian and allotment letter in favour of the defendant he had come to know that the shed had been constructed by the defendant and that, as such the property from which the eviction 659 was to be sought was only a plot of land and not 'premises ' within the meaning of the Delhi Rent Control Act.
In these circumstances, it was claimed that the plaintiff had termi nated the tenancy of the defendants and that the suit was being filed to recover possession of the property from the tenants.
As mentioned earlier, the plaintiff has succeeded in all the three courts and hence the present appeal.
Shri S.K. Mehta, learned counsel for the Society, contends that in this case both the parties had taken up inconsistent stands at different stages of the litigation and that, in that state of affairs, the courts below should have ignored the past conduct of both the parties and gone by the contents of the documents of title in order to decide the matter.
Instead, he complains, the courts have held the conduct of the Society in some of the prior litigation as negativing its claim but, when it came to a consideration of the like conduct on the part of the plaintiff, they have chosen to make light of it, accepting the lame excuses put forward on his behalf.
We shall, therefore, consider, at the outset, the impact, if any, of the earlier proceedings in this case on the question at issue.
The detailed narration of facts set out earlier will show that the parties have not been consistent in their stands and have tried to blow hot or cold as the occasion suited them.
Taking up the stand of the Society first, the Society, in its application to the custodian for reduction of rent claimed successfully that what was allotted to it was only a plot of land and that the small shed thereon had been put up by the Society itself.
So also, in its applica tion for allotment dated 21.1.
1957 and 15.10.1960, it referred to the property only as an industrial plot.
The letters addressed by the Society to the Custodian and Set tlement Commissioner as well as the application for reduc tion of rent and the order thereon are valuable pieces of evidence both because they are anterior to the litigation between these two parties and also because they reflect the representations of the Society to, and the findings of, the very authority that allotted the property to the Society.
The Society represented that it had been allotted only a plot of land and that the shed had been put up thereon by itself and this plea would not have been accepted by the Custodian had it not been correct.
Shri Mehta tried to argue that the Custodian has only reduced the rent on general grounds and has given no finding that only a plot had been allotted to the Society but we are unable to accept this contention as both in the opening sentences as well as in the body of order there is a clear finding to this effect.
This is a very strong circumstance to show that what was allotted to the Society was only a plot of land.
Secondly, 660 the findings of the Rent Controller in the application under section 44 filed by the Society, right or wrong, have at tained finality as between the parties and it is not open to the Society on principles analogous to res judicata to take a contrary stand in these proceedings.
It is true that in the suit for injunction filed in 1964 as well as in its application under section 44 of the Rent Control Act the Society took up a contrary position and claimed that the property was tenanted 'premises '.
It is not clear why the Society filed the suit if the property was subject to the Rent Control Act and, though it appears that the plaintiff pointed out that the property was the subject of proceedings under the Rent Control Act, the suit was eventually dismissed without any findings.
Again, the Socie ty 's claim in the second set of proceedings was rejected by the Rent Controller in a reasoned order on 9.3.1972.
The statement of Ajit Singh of May, 1962 is ambiguous, as it says on the one hand that there was a shed but also says on the other that what was allotted to the Society was only an open plot.
These are, therefore, not of much help to the Society.
Turning next to the stand of the plaintiff, in Decem ber 1962, soon after acquiring the property, he applied to the Rent Controller though unsuccessfully for the eviction of the Society on the allegation that the property comprised a shed, that it had been unauthorisedly sublet and that the plaintiff required it for reconstruction as residential premises.
His explanation that this was due to some mistaken notion has been accepted by the first appellate court.
Counsel for the appellant contends that this was a naive explanation which should not have been accepted as the material on record shows that Banwan Lal and Dina Nath were members of the Society and were fully aware of all the transactions and activities of the Society right from the inception and could not have been unaware of the nature of the property allotted to the Society as alleged.
There is some truth in this but at the same time, it should be appre ciated that, when filing this application, the plaintiff might not have been fully aware of all the legal implica tions of the situation.
At the time of the action, the property consisted of a land and shed.
If the land belonged to the Custodian and the shed had been put up by the Socie ty, what was sold to the plaintiff was really only the right, title and interest of the Custodian and the plaintiff could not have become the owner of the shed superstructure.
Strictly speaking, the Society was the tenant only in re spect of the land but it is possible that, without examining the niceties as to what was the original allotment and the effect of subsequent structure having been put up on it by the lessee, the plaintiff may just have tried 661 to evict the Society by resort to the Rent Control Act.
The question whether the property was 'premises ' within the Rent Control Act was not put in issue in that case and the deci sion of the Rent Controller also rested on a very narrow finding which has no relevance to the point at issue.
We, therefore, think, that these proceedings do not affect the present case of the plaintiff, particularly in view of the specific findings given by the Rent Controller in the Socie ty 's application.
Summing up the position, therefore, it seems to us that the history of the earlier litigation and findings given in the orders therein support the plaintiff 's case rather than that of the Society as held by the courts below.
That apart, we do not think the position is different even_if, as urged by Sri Mehta, we ignore all these proceed ings as unhelpful to either side and concentrate only on the documents on which Shri Mehta relies as supporting his plea that the Society had got an allotment of not a mere plot of land but of a building as well.
The first and most important document on which Shri Mehta places great reliance is the order of allotment dated 28.3.1949 by the Custodian in favour of the Society.
Counsel lays stress on the references in it to "industrial premises", to the "industrial establishment known as open compound . (portion of Jai Hind Motor Works)", to "the factory/workshop/industrial establishment", to "possession of stocks of consumable goods and other stores and material, if any", "and other movable property kept therein" and contends that the document clearly shows that what was allotted to the Society was not a mere plot of land but an industrial premises.
We are unable to accept the above contention for a number of reasons.
In the first place, the reference to 'industrial premises ' in this letter cannot be construed as a reference to 'premises ' within the meaning of the Rent Control Act.
The letter also refers to the allotted property as factory, workshop and industrial establishment though, admittedly, there was no such factory, workshop or estab lishment in existence on that date.
The letter also refers to stocks of consumable goods, stores and movable property on the property but it is common ground that there was none of these things on the site at the time.
It was obviously a cyclostyled proforma allotting an item of evacuee property and, except for the portion where it contains a description of the particular property in question viz. "open compound at Hamilton Road (portion of Jai Hind Motor Works) with 25 front and 50 deep", it only contains terms applicable to allotments generally.
In this case the 662 particular description is not of much help either.
That the property was "known as office compound" does not necessarily mean that there were premises inside the compound as was sought to be suggested.
It is equally consistent with the claim that it was only an open plot of land inside a com pound on which some motor works were located.
Secondly, in the absence of a clear indication of the nature of the property in the allotment letter, we may refer to the other documentary evidence on record.
The inspection report of the person who delivered the property to the Society dated 9.1.1951, the order dated 31.3.1955 of the Deputy Custodian, the letters of the Society dated 21.1.1957 and 12.10.1960, the revision petition filed by the Society as well as the order dated 6.8.1962 thereon clearly indicate that what was allotted to the Society was only a plot of land and that the Society had put up a temporary structure and installed some machinery on it.
The importance of these documents, as indicated earlier, lies in the fact that they arise out of proceedings between the allotting authority and the Society and relate to a point of time anterior to the commencement of the litigation between the Society and the plaintiff.
Shri Mehta invited our attention to the reports called for and submitted in connection with the application under section 33 of the Displaced Persons Act filed by the Society.
He pointed out that the report of the Executive Engineer shows that the reserve price for the auction sale of the property was fixed at Rs.21,000 by taking into account the value of the land at Rs. 17,500 and the value of the structure of Rs.3.883 (in all Rs.21,303) and that this had been further clarified by the report of T.C. Dewan.
But, as rightly pointed out by Dr. Ghosh for the plaintiff, these were only reports submitted in 1962 (much later than the allotment) in the context of justifying the action of the department in auctioning the property in 1960 instead of allotting it to the occupant Society.
As men tioned earlier, the Society itself had pleaded in its appli cation that it had been allotted the land and that it had put up structure and machinery thereon worth Rs.31,000.
It is clear that the machinery installed by the Society on the land was not considerable.
It is seen from the order on the revision petition that the Society could prove installation of machinery only to the extent of Rs.6,585.
The effort of the Society was, therefore, apparently to contend that it had been allotted only the land for which an upset price of Rs.21,000 had been fixed and that since it had also put up a structure and installed machinery worth Rs.31,000, the property should not have been sold in auction.
An inspection was ordered and report of the Executive Engineer indicates that the value of Rs.21,000 had been fixed taking into account both the land and the structure thereon and not merely for the 663 land.
The report of T.C. Dewan was also to the effect that the upset price of Rs.21,000 fixed in 1960 had taken into account a part of an evacuee structure that had already existed on the land.
These reports were thus drawn up in the context of a controversy between the parties as to the nature of the property allotted and the manner in which it had been valued at Rs.21,000.
These reports drawn up several years after.
the allotment, and intended to justify the department 's action, cannot be of much evidentiary value.
It is also significant that, although Dewan 's report states that "the position can be made clear by consulting the valuation schedule ' of the property" no attempt was made to bring on record the valuation schedule which must have been drawn up at the time of the sale, before fixing the upset price at Rs.21,000.
These documents cannot, therefore, be relied upon as to the state of the property when it was allotted to the Society.
Thirdly, the survey reports referred to by us earli er are helpful in indicating how the confusion in the case could have arisen.
The report made at the time of Pritam Chand 's occupancy obviously covers a much more extensive property which consisted of an open space of area 50 ' x 45 which was used as motor lorry workshop and a number of sheds and a verandah.
If we read the letter of allotment in the context of this report, it is clear that what was allotted to the Society was only a portion of the Jai Hind Motor Works measuring 50 ' x 25 '.
This makes it abundantly clear that only an open space was allotted to the Society.
Even the report of 1955 shows the property (though somewhat larger in size than 50 ' x 25 ' shown in the allotment letter) only as a plot with tin shed.
As, even on the Society 's own showing, it had put up a shed on the plot, we again reach the position that what was originally allotted was only a plot of land.
The allotment letter and the other documents re ferred to by counsel for the Society do not, therefore, further its case.
On the contrary, they only reinforce the conclusion of the courts below.
Actually, the findings on the point of all the three courts are concurrent findings on a question of fact.
The Additional District Judge has co gently collected together all the circumstances which mili tate against the Society in its judgment and the High Court has approved this summing up.
This Court does not normally reappraise the evidence or interfere with such concurrent findings of fact, even if it is possible on the facts to come to a contrary conclusion.
We have, however, discussed the material at great length and practically reviewed the entire evidence on record as Shri Mehta submitted that the property is at present occupied by a larger number of mem bers of the petitioner Society who are carrying on small business and that they will all be 664 thrown out on the road as a result of the decision of the courts below.
Even so, for reasons discussed above, we do not think we can come to a contrary conclusion on the mate rial on record.
The High Court has gone one step further.
It has indicated that, even if one accepted the best case of the appellant Society that there was a shed on the land even at the time of the original allotment such plot cum shed cannot convert the land into 'premises ' within the meaning of the Rent Control Act.
This was the prima facie view of the court as it did not hear arguments from the parties on this point.
Counsel canvassed this point before us also.
Shri Mehta, referring to Corporation of City of Victoria vs Bishop of Vancouver Island, AIR 1921 PC 240; Karnania Properties Ltd. vs Augustin, [1957] SCR 20; State of Bombay vs Sardar VenkatRao Krishna Rao Gujar, ; and Ghanshiam Das vs Devi Prasad & Another, contended that the definition of premises envisages a build ing and that, as per these decisions, anything that is built on land, even if it is only a kacha shed, would be a build ing and this brings the property in question within the purview of the Act.
On the other hand Dr. Ghosh sought, by analogy of the principle of the decisions in Uttam Chand vs S.M. Lalwani, AIR 1965 SC 716; S.M Gopalkrishna Chetty vs Ganeshan & Ors., and Morarji Goculdas Deoji Trust & Ors.
vs Mahadev Vithan Kutwa, , to contend that what the Rent Control Act contemplates is a building let out qua building, may be with appurtenant land, but not a land let out for use as land merely because there may be a small building on it.
The relevant question, he says, is what was the dominant subject matter of the allot ment the land or the building and this is a question which can only be decided in the respondent 's favour.
We do not consider it necessary to embark on a discussion of this aspect as we are satisfied, for the reasons already dis cussed, that the property allotted to the Society in respect of which it was a tenant, initially under the custodian and later under the plaintiffs, was only a plot of land and that the plaintiffs were justified in attempting to recover possession thereof by a suit for possession in the civil court.
It is further directed that the decree for eviction will not be executed till 28.2.1990 provided the persons who are in occupation of the premises in question file an undertak ing containing the usual terms within four weeks from today.
The appeal, therefore, fails and is dismissed but, in the circumstances, we make no order as to costs.
P.S.S. Appeal dismissed.

summary:
The appellant society was temporarily allotted the property in question by way of a lease by the Custodian of Evacuee Property in March, 1949.
In the allotment letter it was described as an 'industrial establishment ' known as open compound.
The inspection report dated January 9, 1951 of the person who had delivered the possession to the society described the property as a 'plot ' on which the allottee promised to start a factory.
Sometime thereafter the society sought reduction of the assessment rent.
The order of the Deputy Custodian thereon dated March 31, 1955 granting the relief, again described the property as a 'plot ' with a self constructed shed.
Subsequently, the society through its letter dated January 21, 1957 requested that the said 'indu strial plot ' may be permanently allotted to it.
However, the Custodian chose to sell the property by auction on July 15, 1960 in favour of the predecessor in interest of the re spondent.
The society moved to have the said sale set aside and in its application dated October 15, 1960 made to the concerned authority it mentioned the property as an 'indu strial plot '.
That application was eventually rejected by the Chief Settlement Commissioner on August :25, 1961.
In its revision petition before the Government of India the contention of the society was that the plot was allotted to the society for industrial purpose and they had erected a building and installed machinery thereon.
The Government order rejecting the revision petition too started with a recital that the Custodian had allotted 'an open plot of land ' to the society for industrial purposes and that the society had erected 'a temporary structure ' on the plot and also installed some machinery.
648 On February 15, 1968 the appellant society filed an application under section 44 of the Delhi Rent Control Act, 1958 seeking permission to make repairs to the premises in ques tion.
The owners resisted the said application on a prelimi nary objection that the petitioners were not tenants of any premises within meaning of the Delhi Rent Control Act.
The Controller found that what was allotted to the petitioner society was only a plot and that the shed was self con structed.
The petitioner, therefore, being a tenant only with respect to an open site, which did not come within the definition of a 'premises ' as contemplated by the Act, the petition under section 44 was not maintainable.
The respondent instituted a suit against the society in 1977 seeking its eviction and possession stating that the property was only a plot of land and not 'premises ' within the meaning of Delhi Rent Control Act, and that the plain tiffs had terminated the tenancy of the defendants.
All the three courts below held in his favour.
In this appeal it was contended for the appellant socie ty that the property in question was a 'building ' within the meaning of the Delhi Rent Control Act, 1958 the eviction from which could be sought by the landlord only from a Rent Controller on grounds specified in the Act and not by a suit in a civil court under the Transfer of Property Act read with the Code.of Civil Procedure; that the references in the allotment letter to 'industrial premises ', to the 'industri al establishment known as open compound ', and to the 'facto ry/workshop/industrial establishment ' clearly showed that what was allotted to the society was not a mere plot but an industrial premises.
Dismissing the appeal, HELD: 1.
The property allotted to the appellant society in respect of which it was a tenant initially under the Custodian and later under the plaintiff respondent was only a plot of land.
The plaintiff was, therefore, justified in attempting to recover possession thereof by a suit for possession in a civil court.
[664F G] 2.
The letters addressed by the society to the Custodian and the Settlement Commissioner as well as the application for reduction of rent and the order, thereon, are valuable pieces of evidence both because they are anterior to the litigation between the parties and also because they re flected the representations of the society to, and the findings of the very authority that allotted the said property.
The society represented that it had been ' allotted only a plot of land and that 649 the shed had been put up thereon by itself and this plea would not have been accepted by the Custodian had it not been correct.
Both in the opening sentence as well as in the body of the order there is a clear finding to this effect.
This is a very strong circumstance to show that what was allotted to the society was only a plot of land.
Further more, the findings of the Rent Controller in the application under section 44 of the Rent Control Act filed by the society, right or wrong, had attained finality as between the parties and it was not open to the society on principles analogous to res judicata to take a contrary stand in these proceed ings.
[659F H;660A] 3.
The reference to 'industrial premises ' in the allot ment letter cannot be construed as a reference to 'premises ' within the meaning of the Rent Control Act.
It was obviously a cyclostyled proforma allotting an item of evacuee property and except for the portion where it contained a description of the property in question viz., 'open compound ', it only contained terms applicable to allotment generally.
[661F H] 4.
The finding on the point of the courts below are concurrent findings on a question of fact.
This Court under Article 136 of the Constitution does not normally reappraise the evidence or interfere with such concurrent findings of fact, even if it is possible on the facts to come to a contrary conclusion.
[663G] The decree for eviction not to be executed till February 28, 1990 provided the persons in occupation of the premises file the usual undertaking.
[664G]


judgement:
Criminal Appeal No. 105 of 1989.
From the Judgment and Order dated 31.10.1987 of the Karnataka High Court in Criminal Petition No. 400 of 1986.
M.V. Goswami and B.R.G.K. Achar for the Appellant.
B. Krishna Prasad and P.K. Rao for the Respondents.
The Judgment of the Court was delivered by NATARAJAN, J.
Special Leave granted.
This appeal by special leave is directed against an order of the High Court of Karnataka under Sec.
482 Criminal Procedure Code (For short the Code) setting aside the order or the Second Additional Chief Metropolitan Magistrate, Bangalore directing the registration of a calendar case against the second respondent under Sections 408 and 420 of the Indian Penal Code and the issue of summons to him under Section 204 of the Code.
So far as the facts are concerned, they are as follows.
The appellant gave a report to the Commissioner of Police, Bangalore on 20.2.1980 against the second respondent alleg ing that he had committed the offences of cheating and criminal breach of trust.
It was averred that the second respondent, was its Divisional Manager 722 (Export Import) and had negotiated on its behalf with an Italian firm in July 1979 for supply of quality granite stones and had obtained a letter credit.
Availing the credit facility, he had drawn a sum of Rs. 13,59,750 but failed to supply granite stones to the Italian firm and instead had misappropriated the amount.
On the foot of the report, a case was registered against the second respondent in Ulsoor Police Station as Crime No. 145/1980 under Sections 408 and 420 of the Indian Penal Code and the case was investigated by Shri Bayar, Inspector of Police.
When Shri Bayar went away on promotion, his succes sor took over the investigation but subsequently he sent a "B" Report to the Court stating that further investigation was not required as the case was of a civil nature.
Aggrieved by the report sent by the police, the appel lant approached the Second Additional Chief Metropolitan Magistrate, Bangalore for the report being quashed and permission granted to him to prove the commission of of fences by the second respondent.
The learned Magistrate, after perusing the investigation records came to the view that a prima facie case was made out against the second respondent and consequently he passed an order for a calen dar case being registered against him for offences punisha ble under Sections 408 and 420 of the Indian Penal Code and for summons being issued to him under Sec. 204 of the Code.
Thereupon, the second respondent filed a petition under Sec.
482 of the Code before the High Court and sought the quashing of the order of the Magistrate.
The High Court allowed the petition and set aside the order of the Magis trate on the ground the Magistrate had not followed the procedure laid down by the Code for taking cognisance of the case and issuing process to the accused after the police had sent a 'B ' report in the case.
The High Court has held that on receipt of the 'B ' report, the Magistrate should have issued notice to the appellant to find out whether he was disputing the correctness of the 'B ' report and, if so, to comply with the requirements of Sec. 200 of the Code.
The High Court has further stated that only after examining the appellant.
on oath and his witnesses, the Magistrate should have decided whether a case should be registered and process issued to the accused.
The High Court has referred to the ratio laid down in an earlier case K. Sham Rao vs A.R. Diwakar, and followed it.
Aggrieved by the order of the High Court, the appellant has come forward with this appeal.
723 Mr. B.R.G.K. Achar, learned counsel for the appellant contended that the second respondent had no locus to ques tion the order of the Second Additional Chief Metropolitan Magistrate and therefore, the High Court was in error in entertaining the petition filed by him under Section 482 of the Code and setting aside the order of the learned Magis trate.
In support of this contention he placed reliance on the decision in Nagawwa vs
section Konjalgi; , He further submitted that the Second Additional Chief Metropol itan Magistrate was entitled to take cognizance of the offences alleged to have been committed by the second re spondent and order the issue of process to him and that the Magistrate 's power under Sections 190 and 204 of the Code could well be exercised without advertance to any possible defence the second respondent may have.
The learned counsel also stated that since the police had made a perfunctory investigation and sent a 'B ' report stating that the case was of a civil nature, the Magistrate was perfectly justi fied, in the facts and circumstances of the case in taking cognizance of the offence and directing the issue of process to the second respondent.
Controverting these arguments, the learned counsel for the respondent submitted that since the police had sent a 'B ' report stating that the investigation disclosed that the dispute between the parties was only of a civil nature and that no offence has been made out against the second re spondent, the Second Additional Chief Metropolitan Magis trate, ought to have called upon the appellant to find out whether he was challenging the police report and if so, to make a sworn statement and also examine his witnesses and thereafter only the learned Magistrate should have decided whether cognizance should be taken of the offences and process issued to the second respondent.
The learned coun sel, therefore, argued that since the magistrate had not followed the procedure laid down in Section 200 or Section 202, the second respondent was entitled to seek quashing of the order of the Magistrate and as such the High Court ha:; acted correctly in allowing the second respondent 's petition and setting aside the order of the Magistrate.
Before we examine the contentions of the learned counsel for the appellant and the second respondent, we may briefly refer to some of the provisions in Chapter X11, XIV, XV and XVI of the Code.
Section 155 in Chapter XII pertains to information laid to the police regarding non cognizable cases and Sub Section (2) lays down that no police officer shall investigate a non cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.
724 Section 156(1) confers power on an officer in charge of a police station to investigate any cognizable case without the order of a Magistrate.
Section 156(3) authorises a Magistrate, empowered under Section 190 to order the police to make an investigation as provided for in Section 156(1).
The other provisions in the Chapter from Section 157 onwards set out the powers of investigation of the police and the procedure to be followed.
Section 169 prescribes the proce dure to be followed by an officer in charge of a police station if it appears to him upon investigation of a case that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate.
Section 170 prescribes the procedure to be followed by the officer in charge of a police station if it appears to him upon investigation that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate.
Section 173(1) enjoins a Police Officer to complete the investigation without unnecessary delay.
Section 173(2) lays down that as soon as the investigation is completed the officer in charge of a police station should forward to a Magistrate empowered to take cognizance of an offence on a police report, a report in the prescribed form stating the various particu lars mentioned in that Sub Section.
Chapter XIV deals with the conditions requisite for initiation of proceedings and as to the powers of cognizance of a Magistrate.
For our purpose it is enough if we extract Section 190(1) alone. "Section 190(1).
Cognizance of offences by Magistrates Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class spe cially empowered in this behalf under sub section (2), may take cognizance of any of fence (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been commit ted." Chapter XV which contains Section 200 to 203 deals with "Complaints to Magistrate".
A Magistrate taking cognizance of an offence on complaint is required by Section 200 to examine the complaint and 725 the witnesses present, if any.
Section 202 provides that a Magistrate taking cognizance of a case, upon complaint, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.
Section 203 empowers the Magistrate to dismiss the com plaint, if after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding.
Chapter XVI deals with "Commencement of Proceedings before Magistrates" and Section 204 empowers a Magistrate to issue summons or a warrant as the case may be, to secure the attendance of the accused if in the opinion of the Magis trate taking cognizance of the offence there is sufficient ground for proceeding.
From the provisions referred to above, it may be seen that on receipt of a complaint a Magistrate has several courses open to him.
The Magistrate may take cognizance of the offence at once and proceed to record statements of the complainant and the witnesses present under Section 200.
After recording those statements, if in the opinion of the Magistrate there is no sufficient ground for proceeding, he may dismiss the complaint under Section 203.
On the other hand if in his opinion there is sufficient ground for pro ceeding he may issue process under Section 204.
If, however, the Magistrate thinks fit, he may postpone the issue of process and either inquire into the case himself or direct an investigation to be made by the police officer or such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.
He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding.
Yet another course open to the Magistrate is that instead of taking cognizance of the offence and following the procedure laid down under Section 200 or Section 202, he may order an investigation to be made by the police under Section 156(3).
When such an order is made, the police will have to investigate the matter and submit a report under Section 173(2).
On receiv ing the police report the Magistrate may take congnizance of the offence under Section 190(1)(c) and issue process straightaway to the accused.
The Magistrate may exercise his powers in this behalf irrespective of the view expressed by the police in their report whether an offence has been made out or not.
This is because the police report 726 under Section 173(2) will contain the facts discovered or un earthed by the police as well as the conclusion drawn by the police therefrom.
If the Magistrate is satisfied that upon the facts discovered or unearthed by the police there is sufficient material for him to take cognizance of the offence and issue process, the Magistrate may do so without reference to the conclusion drawn by the Investigating Officer because the Magistrate is not bound by the opinion of the police officer as to whether an offence has been made out or not.
Alternately the Magistrate, on receiving the police report, may without issuing process or dropping the proceeding proceed to act under Section 200 by taking cogni zance of the offence on the basis of the complaint original ly submitted to him and proceed to record the statement upon oath of the complaint and the witnesses present and thereaf ter decide whether the complaint should be dismissed or process should be issued.
Since in the present case the Second Additional Chief Metropolitan Magistrate has taken cognizance of offences alleged to have been committed by the second respondent and ordered issue of process without first examining the appel lant and his witnesses, the question for consideration would be whether the Magistrate is entitled under the Code to have acted in that manner.
The question need not detain us for long because the power of a Magistrate to take cognizance of an offence under Section 190(1)(b) of the Code even when the police report was to the effect that the investigation has not made out any offence against an accused has already been examined and set out by this Court in Abninandan Jha & Ors.
vs Dinesh Misra; , and H.S. Bains vs State, ; In Abhinandan Jha & Ors.
vs Dinesh Misra, (supra) the question arose whether a Magistrate to whom a report under Section 173(2) had been submitted to the effect that no case had been made out against the accused, could direct the police to file a charge sheet, on his disagreeing with the report submitted by the Police.
This Court held that the Magistrate had no jurisdiction to direct the police to submit a charge sheet but it was open to the Magistrate to agree or disagree with the police report.
If he agreed with the report that there was no case made out for issuing process to the accused, he might accept the report and close the proceedings.
If he came to the conclusion that further investigation was necessary he might make an order to that effect under Section 156(3) and if ultimately the Magistrate was of the opinion that the facts set out in the police report constituted an offence he could take cognizance of the offence, notwithstanding the contrary opinion of the police expressed in the report.
While expressing the opinion that the Magistrate could take cognizance of the offence, notwithstanding the 727 contrary opinion of the police, the Court observed that the Magistrate could take cognizance under Section 190(1)(c).
The reference to Section 190(1)(c) was a mistake for Section 190(1)(b) and this has been pointed out in H.S. Bains (supra).
In the case of H.S Bains (supra) one Gurnam Singh sub mitted a complaint to the Judicial Magistrate 1st Class, Chandigarh alleging that H.S. Bains trespassed into his house along with two others on 11 8 1979 at about 8 a.m. and threatened to kill him and his son.
The Magistrate directed the police under Section 156(3) of the Code to make an investigation.
After completing the investigation, the police submitted a report to the Magistrate under Section 173(2) of the Code stating that the case against the accused was not true and that the case may be dropped.
The learned Magistrate disagreed with the conclusion of the police and took cognizance of the case under Sections 448 and 506 of the Indian Penal Code and directed the issue of process to the accused.
Thereupon, the accused moved the High Court for quashing the proceedings before the Magistrate.
As the High Court declined to interfere, the accused approached this Court by way of appeal by special leave.
Various contentions were advanced on behalf of the accused and one of them was that the Magistrate was not competent to take cognizance of the case upon the police report since the report was to the effect that no offence had been committed by the accused.
It was further urged that if the Magistrate was not satisfied with the police report, there were only two courses open to him, viz. either to order a further investigation of the case by the police or to take cognizance of the case himself as if upon a complaint and record the statements of the complainant and his witnesses under Section 200 of the Code and then issue process if he was satisfied that the case should be proceeded with.
Repelling those contentions this Court held as follows: "The Magistrate is not bound by the conclu sions arrived at by the police even as he is not bound by the conclusions arrived at by the complainant in a complaint.
If a complainant states the relevant facts in his complaint and alleges that the accused is guilty of an offence under Section 307 Indian Penal Code the magistrate is not bound by the conclusion of the complainant.
He may think that the facts disclose an offence under Section 324 Indian Penal Code only and he may take congni zance of an offence under Section 324 instead of Section 307.
Similarly if a police report mentions that half a dozen persons examined by them claim to be eye witnesses to a murder but that for 728 various reasons the witnesses could not be believed, the Magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses.
He may prefer to ignore the conclusions of the police regarding the credibility of the witnesses and take cognizance of the offence.
If he does so, it would be on the basis of the statements of the witnesses as revealed by the police report.
He would be taking cognizance upon the facts disclosed by the police report though not on the conclusions arrived at by the police.
" The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused.
The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused.
Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused.
The Magistrate can ignore the conclusion arrived at by the investigating officer ;and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused.
The Magistrate is not bound in such a situation to follow the procedure laid down in Section 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(b) though it is open to him to act under Section 200 or Section 202 also.
The High Court was, there fore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him.
The fact that in this case the investigation had not originated from a complaint preferred to the Magistrate but had been made pursuant to a report given to the police would not alter the situation in any manner.
Even if the appellant had preferred a complaint before the learned Magistrate and the Magistrate had ordered investigation under Section 156(3), the police would have had to submit a report under Section 173(2).
It has been held in Tufa Ram & Ors.
vs Kishore Singh, ; that if the police, after making an investigation, send a report that no case was made out against the accused, the 729 Magistrate could ignore the conclusion drawn by the police and take cognizance of a case under Section 190(1)(b) and issue process or in the alternative he can take cognizance of the original complaint and examine the complainant and his witnesses and thereafter issue process to the accused, if he is of opinion that the case should be proceeded with.
In the light of our conclusion, the appeal succeeds and the order of the High Court is set aside.
The order of the Second Additional Chief Metropolitan Magistrate, Bangalore will stand restored and the case against the second respond ent will be proceeded further in accordance with law.
G.N. Appeal allowed.

summary:
The appellant gave a report to the Commissioner of Police against the second respondent, alleging that he had committed the offences of cheating and criminal breach of trust.
It was alleged that the second respondent, who was employed by the appellant as its Divisional Manager (Export Import) had negotiated on behalf of the appellant with an Italian firm for supply of quality granite stones and had obtained a letter of credit and availing the credit facility, had drawn a sum of Rs. 13,69,750 and misappropri ated the amount.
A case was registered and investigated, but subsequently the police sent a 'B ' Report to the Court, stating that further investigation was not required as the case was of a civil nature.
Aggrieved by the report, the appellant ap proached the Second Additional Chief Metropolitan Magistrate for quashing the report and for permission to prove the commission of offences by the second respondent.
The Magis trate passed an order for a calendar case being registered against the second respondent for offences punishable under Sections 408 and 420 I.P.C. and for issuing summons to him.
Thereupon the second respondent filed a petition under Section 482 of the Code before the High Court and sought the quashing of the order of the Magistrate.
The High Court allowed the petition and set aside the order of the Magis trate on the ground that the Magistrate had not followed the procedure for taking cognizance of the case and issuing process to the accused after the police had sent a 'B ' report in the case.
According to the High Court, the Magis trate should have issued notice to the appellant to find out whether he was disputing the correctness of the 'B ' report and if so, to comply with the requirements of Section 200 719 of the Code.
The High Court further stated that only after examining the appellant on oath and his witnesses, the Magistrate should have decided whether a case should be registered and process issued to the accused.
Aggrieved by the High Court 's order, the appellant has preferred this appeal by special leave.
On behalf of the appellant, it was contended that the second respondent had no locus to question the order of the Magistrate and that the Magistrate was justified in taking cognizance of the offence and directing the issue of process to the second respondent.
On behalf of the respondent, it was argued that since the Magistrate had not followed the procedure laid down in Section 200 or Section 202, the second respondent was enti tled to seek quashing the order of the Magistrate, and the High Court was right in setting aside the order of the Magistrate.
Allowing the appeal, HELD: 1.
On receipt of a complaint a Magistrate has several courses open to him.
The Magistrate may take cogni zance of the offence at once and proceed to record state ments of the complainant and the witnesses present under Section 200.
After recording those statements, if in the opinion of the Magistrate there is no sufficient ground for proceeding, he may dismiss the complaint under Section 203.
On the other hand if in his opinion there is sufficient ground for proceeding he may issue process under Section 264.
If, however, the Magistrate thinks fit, he may postpone the issue of process and either inquire into the case him self or direct an investigation to be made by the police officer or such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.
He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceed ing.
Yet another course open to the Magistrate is that instead of taking cognizance of the offence and following the procedure laid down under Section 200 or Section 202, he may order an investigation to be made by the police under Section 156(3).
When such an order is made, the police will have to investigate the matter and submit a report under Section 173(2).
On receiving the police report the Magis trate may take cognizance of the offence under Section 190(1)(0) and issue process straightaway to the accused.
The Magistrate may exercise his powers in this 720 behalf irrespective of the view expressed by the police in their report whether an offence has been made out or not.
This is because the police report under Section 173(2) will contain the facts discovered or unearthed by the police as well as the conclusion drawn by the police therefrom.
If the Magistrate is satisfied that upon the facts discovered or unearthed by the police there is sufficient material for him to take cognizance of the offence and issue process, the Magistrate may do so without reference to the conclusion drawn by the Investigating Officer because the Magistrate is not bound by the opinion of the police officer as to whether an offence has been made out or not.
Alternately the Magis trate, on receiving the police report, may without issuing process or dropping the proceeding proceed to act under Section 200 by taking cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statement upon oath of the complainant and the witnesses present and thereafter decide whether the com plaint should be dismissed or process should be issued.
[725D H;726A C] 2.1 The position is, therefore, now well settled that upon receipt of a police report under section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused.
The Magistrate can take into account the statements of the witnesses examined by the police during the investi gation and take cognizance of the offence complained of and order the issue of process to the accused.
Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opin ion that the investigation has made out a case against the accused.
The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused.
The Magistrate is not bound in such a situation to follow the procedure laid down in Section 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(b) though it is open to him to act under Section 200 or Section 202 also.
The High Court was, there fore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him.
[728C F] 2.2 The fact that in this case the investigation had not originated from a complaint preferred to the Magistrate but had been made 721 pursuant to a report given to the police would not alter the situation in any manner.
Even if the appellant had preferred a complaint before the Magistrate and the Magistrate had ordered investigation under Section 156(3), the police would have had to submit a report under Section 173(2).
[728G H] K. Sham Rao vs A.R. Diwakar, ; Nagawwa vs section Konjalgi, ; ; Abhinandan Jha and Ors.
vs Dinesh Mishra, ; ; H.S. Bains vs State, ; and Tufa Ram & Ors.
vs Kishore Singh, ; relied on.
Setting aside the order of the High Court and restoring the order of the Magistrate, this Court directed that the case against the Second Respondent shall proceed in accord ance with law.
[729B C]