judgement:
: Criminal Appeal No. 49 of 1990.
From the Judgment and Order dated 13.2.1989 of Delhi High Court in Crl.
W. No. 25 of 1989.
S.R. Setia, C.S. Vaidyanathan and K.V. Viswanathan for the Appellant.
V.C. Mahajan, Ms. Sushma Suri, P. Parmeshwaran, A.K. Srivastava and T.T. Kunhikannan for the Respondents.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
Special leave granted.
After the Appellant landed at Trivandrum Airport from Abu Dhabi, he was intercepted by the customs officials detecting that he smuggled 13 gold sheets weighing 1280 gms.
valued at Rs.4,26,240 concealed inside the plywood panels of his blue suitcase which was seized along with his two pass ports, old and new.
He was arrested on 31 1 1988 and was produced before the Chief Judicial Magistrate (Economic Offences) Ernakulam who remanded him to judicial custody till 12 2 1988.
On 12 2 1988 he was granted bail on condi tion, inter alia, that he would report before the Superintendent (Intelligence) Air Customs, Trivandrum on every Wednesday until further orders, and that he would not change his residence without prior permission of Court to "25 2 1988.
" The impugned detention order dated 25 6 1988 was passed by the Home Secretary, Government of Kerala.
It stated that the Government of Kerala was satisfied with respect to the appellant that with a view to preventing him from smuggling gold it was necessary to detain him and, therefore, in exercise of powers conferred by section 3(1)(i) of the Conservation of Foreign Exchange and Preven tion of Smuggling Activities Act, 1974 (Central Act 52 of 1974), hereinafter referred to as 'the COFEPOSA Act, the Government of Kerala directed that he be detained and kept in custody in the Central Prison, Trivandrum.
The grounds of detention, which were also served, inter alia, gave the details as to how the smuggled gold was detected in his possession having been smuggled 214 into India in violation of the provisions of the , Foreign Exchange Regulation Act, 1973 and Import and Export Control Act, 1947; what were his statements at the time of seizure of his blue suitcase, his new and old passports and the air ticket used for the journey from Dubai to Trivandrum and the return open air ticket from Bombay to Abu Dhabi; and the gist of his statements given on 30/31 1988 under section 108 of the before the Intelligence Superintendent, Air Customs, Trivandrum.
It was also stated that after his arrest on 31 1 1988 he was pro duced before the Additional Chief Judicial Magistrate (Economic Offences) Ernakulam on the same date and he was remanded to judicial custody and was subsequently released on bail; and that even though the departmental adjudication and prosecution proceedings under were pending against him, the detaining authority was satisfied that he should be detained under section 3(1)(i) of the COFEPOSA Act with a view to prevent him from smuggling gold to Trivan drum.
On 23 8 1988 the appropriate authority declared that he was satisfied that the detenu was likely to smuggle goods into and through Trivandrum Airport which was an area highly vulnerable to smuggling as defined in Explanation 1 to section 9(1) of the COFEPOSA Act.
On 24th September, 1988, the detenu appeared before the Advisory Board which reported that there was sufficient cause for his detention.
The detenu challenged his detention moving a Habeas Corpus petition under Article 226 of the Constitution of India read with section 483 Cr.
C.P. in the High Court of Delhi and the same having been dismissed in limine the appellant appeals therefrom by special leave.
In para 11 of the Special Leave Petition it has been stated that the various grounds urged in the writ petition before the High Court have also been added in this petition and the writ petition itself has been annexed as Vol.
II to the Special Leave Petition.
The main grounds on which the detention order is being challenged by the learned counsel for the appellant Mr. C.S. Vaidyanathan, inter alia, are that after the event there was inordinate delay in passing the detention order which showed that there was no genuine need for detention of the appel lant; that there was inordinate and unexplained delay of 38 days in execution of the detention order; that all the documents and materials, particularly the appellant 's bail application, the bail order, the show cause notice and his reply thereto were not placed before the detaining authori ty; that these documents and the fact that the appellant 's old and new passports were seized and without those it would not be possible for the appellant to carry on 215 smuggling were not brought to the notice of the declaring authority and ',hat there was non application of mind.
Mr. T.T. Kunhikannan, the learned counsel for the State of Kerala submits, inter alia, that there was no such delay between the date of detention and the date of passing the impugned order of detention as to make the grounds stale or to snap the relation; that the delay in execution of the detention order has been explained; that the bail applica tion as well as the bail order were placed before the de taining authority but the same having not been referred to or relied on by the detaining authority the copy thereof was not required to be furnished to the detenu along with the grounds of detention; that all the papers which were placed before the detaining authority for passing the order of detention were also placed before the declaring authority and it was not necessary to place the show cause notice and the detenu 's reply thereto; and that the detention order suffered from no infirmity whatsoever and this appeal is liable to be dismissed.
Mr. V.C. Mahajan, the learned coun sel for the Union of India emphatically submits that all the documents and materials that were required to be placed before the declaring authority were duly placed and on consideration of the relevant materials the declaring au thority validly made the declaration which was, therefore, unassailable.
We now take the first submission, namely, delay in passing the detention order.
Mr. Vaidyanathan, referring to paragraph 6 of the Writ Petition, submits that while the interception and seizure took place on 30 1 1988 and the detenu was arrested formally on 31 1 1988, the detention order was passed only 25 6 1988 and this delay remained unexplained and as such there was no nexus between the incident and the detention.
In the counter affidavit filed in this Court there is no specific denial on this point.
Mr. Kunhikannan submits that it so happened because this ground was not taken in the Special Leave Petition.
The appellant having stated that the grounds urged in the Writ Petition should also be added, it cannot be said that this ground was not taken.
Of course when other ground surged in the Writ Petition have also been taken specifically in the Special Leave Petition this ground could also have been so taken.
However, on the basis of the Records Mr. Kunhikannan submits that the Collector of Customs sent the proposal for deten tion on 27 5 1988 along with the draft grounds, and the Screening Committee meeting proposed to be held on 10th June, 1988 was postponed and was held on 21 6 1988 on which date the detenu 's case was considered to be fit for deten tion under the COFEPOSA Act.
It is submitted for the State that thorough investigation of the case was 216 required on the part of the Customs authorities both for the proceedings under the and for prosecution in the criminal Court, and as such the proposal could not have been hurried through.
These facts have not been shown to be untrue.
Under the above circumstances can it reasonably be held that the nexus between the Smuggling Act and the deten tion order was snapped or that the grounds became stale? Where the seemingly long time taken for passing the detention order after the prejudicial act is the result of full and detailed investigation and consideration of the facts of the case, the ground cannot be held to be remote and the detention cannot be held to be bad on that ground.
In Ashok Narain vs Union of India, , where the detenu was apprehended for breach of Foreign Exchange Regulation in February, 1981 and without launching any prosecution the detenu was detained in October, 1981 the passage of time being the result of full and detailed con sideration of facts and circumstances of the case after thorough examination at various levels, this Court observed that it could not be said that the detention was in any way illegal inasmuch as the detaining authority had fully and satisfactorily applied his mind to the question of deten tion.
As was held in Smt.
Rekhaben Virendra Kapadia vs State of Gujarat, ; , whether the time lag between the commission of the offence and the detention was enough to snap the reasonable nexus between the prejudicial activi ty and the purpose of detention would depend upon the facts of each case.
The test of proximity is not a rigid or me chanical calendar test to be blindly applied by merely counting the number of months and days between the offending act and the order of detention.
The question is whether the past activities of the detenu were such that the detaining authority could reasonably come to the conclusion that the detenu was likely to continue in his unlawful activities.
In Sheikh Salirn vs The State of West Bengal, ; , there was a gap of about 4 months in between.
The explanation of the interval was that the petitioner was being prosecuted and the order of discharge had to be ob tained on June 17, 1972.
The order of detention was passed 4 days before the order of discharge was passed.
This Court repelling the contention observed: "We do not suppose that the length time which a decision takes necessarily reflects the care or openness brought to bear upon it.
" 217 In Rajendrakumar Natvarlal Shah vs State of Gujarat, ; , even unexplained delay (of 5 months in that case) in making the order against economic offenders under the COFEPOSA Act or other anti social elements such as those involved in illicit traffic in liquor trade under Gujarat Prevention of Anti Social Activities Act having large resources and influence, it was held, would not be sufficient to vitiate the order if the grounds were not stale and the nexus between the grounds and the order of detention still existed.
It was observed that a distinction must be drawn between the delay in making of an order of detention under a law relating to preventive detention like the COFEPOSA Act and the delay in complying with the proce dural safeguards of Article 22(5) of the Constitution.
It has been laid down by this Court in a series of decisions that the rule as to unexplained delay in taking action is not inflexible.
Mere delay in making of an order of deten tion under a law like the COFEPOSA Act enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence, have been posing a serious threat to the economy and thereby to the security of the nation, the courts should not merely on account of the delay in making of an order of detention assume that such delay, if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached.
Taking of such a view would not be war ranted unless the Court finds that the grounds are stale or illusory or that there was no real nexus between the grounds and the impugned order of detention.
In that case, there was no explanation for the delay between February 2, and May 28, 1987, yet it could not give rise to legitimate inference that the subjective satisfaction arrived at by the District Magistrate was not genuine or that the grounds were stale or illusory or that there was no rational connection between the grounds and the order of detention.
This Court reiterat ed what was stated in Olia Mallick vs The State of West Bengal, ; Golam Hussain vs The Commissioner of Police, ; ; Odut Ali Miah vs The State of West Bengal, and Vijay Narain Singh vs State of Bihar, The Court also referred to Gora vs State of West Bengal, ; ; Raj Kumar Singh vs State of Bihar, ; and Smt.
Hemlata Kantilal Shah vs State of Maharashtra, ; Applying the law enunciated and settled by the foregoing decisions we are of the view that in this case, considering the given explanation of the period in between the intercep tion on 30 1 1988 and the 218 order of detention on 25 6 1988 the nexus was not snapped and the ground was not rendered stale and the order of detention was not rendered invalid thereby.
The submission is accordingly rejected.
As regards the submission as to delay in execution it was urged.
that there was inordinate and unexplained delay in execution of the detention order passed on 25 6 1988 as the detenu was taken into custody only on 2 8 1988 despite the fact that the detenu was reporting in compliance of the bail order.
Relying on a full bench decision of the Delhi High Court in Mohammed Saleem vs Union of India, since reported in 1989(3) Delhi Lawyer 77, it is submitted that this delay of 38 days was indicative of the fact that there was no genuine need for the detention order.
This ground though taken in the Writ Petition was not repeated specifi cally in the Special Leave Petition and Mr. Kunhikannan prayed for an opportunity, for filing an additional counter affidavit, which we declined.
However, explaining the delay counsel points out from the Records that on 27 6 1988 the Home Secretary wrote to the Superintendent of Police, Malap uram, with detailed instructions requesting him to arrange for the immediate execution of the detention order.
On 19 7 1988 a teleprinter message was sent by the Home Secre tary to the Superintendent of Police, in the nature of a reminder, requesting that the person be immediately appre hended and compliance reported and that the delay in execu tion may also be reported.
On 27 7 1988 the Superintendent of Police, Malapuram wrote back to the Home Secretary that the detention order could not be executed since the warran tee was absconding and his 'present ' whereabouts were not known and that the C.I. had been instructed to make all possible efforts to apprehend the warrantee.
On 2 8 1988 the Superintendent of Police, Malapuram sent a wireless message to the Home Secretary stating that the detention order had been served on the detenu on 2 8 1988 at his residence and his acknowledgement obtained and he had been sent to the Central Prison, Trivandrum.
Mr. Vaidyanathan 's submission that the detenu could not have been absconding in view of his reporting as required by the bail order is not accept able.
The second condition in the bail order said: "that he will not change residents without prior permission of Court to 25 2 1988".
There was no mention regarding the period thereafter.
There is also no statement in the affidavit to the effect that the detenu was all along available at his residence or that he had not changed it.
But even assuming that he was residing there, there is no reason to disbelieve the statement of the police that they were unable to find him earlier than they actually did.
219 Where the passage of time is caused by the detenu him self by absconding, the satisfaction of the detaining au thority cannot be doubted and the detention cannot be held to be bad on that ground.
In Bhawarlal Ganeshmalji vs State of Tamil Nadu and Anr., ; , where the appel lant had been evading arrest and surrendering after three years of the making of order of detention under the COFEPOSA Act the order was held to be still effective as the detenu himself was to be blamed for the delay.
This Court observed that there must be a 'live and proximate link ' between the grounds of detention alleged by the detaining authority and the avowed purpose of detention, namely, the prevention of smuggling activities.
In appropriate cases it could be assumed that the link was snapped if there was a long and unexplained delay between the date of order of detention and the arrest of the detenu and in such a case the order of detention could be struck down unless the grounds indicated a fresh application of mind of the detaining authority to the new situation and the changed circumstances.
But where the delay is not only adequately explained but also is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consid er the 'link ' not snapped but strengthened.
In that case the order of detention was made on December 19, 1974.
The detenu was found to be absconding.
Action was taken pursuant to section 7 of the COFEPOSA Act and he was proclaimed as a person absconding under section 82 of the Criminal Procedure Code.
The proclamation was published in several leading English and local daily newspapers.
Several other steps were taken despite which he could not be arrested until he sur rendered himself on February 1, 1978.
In Shafiq Ahmad vs District Magistrate, Meerut, [989] 4 SCC 556, relied on by appellant, it has been clearly held that what amounts to unreasonable delay depends on facts and circumstances of each case.
Where reason for the delay was stated to be abscondence of the detenu, mere failure on the part of the authorities to take action under section 7 of the National Security Act by itself was not sufficient to vitiate the order in view of the fact that the Police force remained extremely busy in tackling the serious law and order problem.
However it was not accepted as a proper explanation for the delay in arresting the detenu.
In that case the alleged incidents were on April 2/3/9, 1988.
The detention order was passed on April 15, 1988 and the detenu was arrested on October 2, 1988.
The submission was that there was inordinate delay in arresting the petitioner pursuant to the order and that it indicated that the order was not based on a bona fide and genuine belief that the action or conduct of the petitioner were 220 such that the same were prejudicial to the maintenance of public order.
Sabyasachi Mukharji J., as my Lord the Chief Justice then was, observed that whether there was unreasona ble delay or not would depend upon the facts and circum stances of a particular situation and if in a situation the person concerned was not available and could not be served, then the mere fact that the action under section 7 of the Act had not been taken, would not be a ground for holding that the detention order was bad.
Failure to take action even if there was no scope for action under section 7 of the COFEPOSA Act, would not by itself be a decisive or determi native of the question whether there was undue delay in serving the order of detention.
In Shafiq 's case the affidavit affirmed by the detaining authority showed that several raids of the petitioner 's premises for the service of the order dated 15 4 1988 were conducted and the authorities had made all efforts to serve the order on the detenu, but he was all along absconding and the house of the petitioner for this purpose was raided on several occasions.
However, in view of the fact that in that case from April 15, 1988 to May 12, 1988 no attempt had been made to contact or arrest the petitioner and there was no explanation as to why from September 27, 1988 to October 2, 1988 no attempt had been made, there was unexplained delay and it was, therefore, not possible for the Court to be satisfied that the District Magistrate had applied his mind and arrived at the subjective satisfaction that there was genuine need for detention of the detenu.
The detention order was accordingly quashed.
We have already noted how in the instant case the Home Secretary sent detailed instructions to the Superintendent of Police, Malapuram on 27 6 1988 and sent the teleprinter message on 19 7 1988 and the Superintendent of Police wrote back on 27 7 1988 stating that the detenu was absconding and his whereabouts were not known and all possible efforts were being made to execute the order and on 2 8 1988 the Superin tendent of Police reported that the order was served on 2 8 1988 at his residence and that he was sent to the Cen tral Prison, Trivandrum.
Though it could not be denied that the detenu was reporting before the Superintendent (Intelli gence) Air Customs, Trivandrum on every Wednesday, the Superintendent of Police, Malapuram apparently was not aware of it.
Under the above facts and circumstances we are of the view that there was no inordinate and unexplained delay in the period of 38 days between the detention order and its execution so as to snap the nexus between the two or to render the grounds stale or to indicate that the detaining authority was 221 not satisfied as to the genuine need for detention of the detenu.
This submission is accordingly rejected.
We may pause here to point out that the circumstances in the present case seem to indicate a certain degree of lack of coordination between the detaining authorities and those entrusted with the execution of the detention order.
This is clearly seen from two circumstances in the present case.
Though the detention order was sent for service on 27 6 1988, a reminder was issued only on 19 7 1988.
Apparently, the Superintendent of Police was finding it difficult to trace the detenu but he did not report this immediately and mentioned it to the detaining authority only on 27 7 1988.
He was obviously not aware that, under the terms of the bail order the detenu had to report every week at the Customs Office.
If he had reported his difficulty earlier or if the detaining authorities had apprised him of the terms of the bail order, it would have been possible to have had the detention order served earlier.
These communication gaps should, we think, be avoided since it is of the very essence of a detention order to have it served at the earliest.
While we have accepted the explanation tendered in the present case for this delay, we would like the State to ensure that such delays do not occur as, apart from giving the detenu a ground for attacking the detention order.
such delay really tends to frustrate and defeat the very purpose of preventive detention.
The next submission of counsel was that the detaining authority should have realised that the seizure of the detenu 's passports was by itself sufficient to restrain the detenu 's smuggling activities, if any, and refrained from passing the order of detention.
We see no force in this contention.
This was no doubt one of the factors that the detaining authority should have taken (and did in fact take) into account but it was for him to assess the weight to be attached to such a circumstance in arriving at his final decision and it is not open to us to interfere with the merits of his decision.
We, therefore, reject this conten tion of Mr. Vaidyanathan.
The next submission is that of non supply of the bail application and the bail order.
This Court, as was observed in Mangalbhai Motiram Patel vs State of Maharashtra, ; , has 'forged ' certain procedural safeguards for citizens under preventive detention.
The Constitutional imperatives in Article 22(5) are two fold: (a) The detaining authority must, as soon as may be i.e. as soon as practica ble, after the detention communicate to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority 222 must afford the detenu the earliest opportunity of making the representation against the order of detention.
The right is to make an effective representation and when some docu ments are referred to or relied on in the grounds of deten tion, without copies of such documents, the grounds of detention would not be complete.
The detenu has, therefore, the right to be furnished with the grounds of detention along with the documents so referred to or relied on.
If there is failure or even delay in furnishing those documents it would amount to denial of the right to make an effective representation.
This has been settled by a long line of decisions: Ramachandra A. Kamat vs Union of India, ; ; Frances Coralie Mullin vs W.C. Kharnbra & Ors., ; ; Smt.
Ichhu Devi Chararia vs Union of India, ; ; Pritam Nath Hoon vs Union of India, ; ; Shri Tushar Thakkar vs Union of India, ; Lallubhai Jogibhai Patel vs Union of India, ; ; Kirit Kumar Chaman Lal Kundaliya vs Union of India, and Smt.
Ana Carelina D 'Souza vs Union of India, It is immaterial whether the detenu already knew about their contents or not.
In Mehrunissa vs State of Maharash tra, , it was held that the fact that the detenu was aware of the contents of the documents not fur nished was immaterial and non furnishing of the copy of the seizure list was held to be fatal.
To appreciate this point one has to bear in mind that the detenu is in jail and has no access to his own documents.
In Mohd. Zakir vs Delhi Administration, 16 it was reiterated that it being a Constitutional imperative for the detaining authori ty to give the documents relied on and referred to in the order of detention pari passue the grounds of detention, those should be furnished at the earliest so that the detenu could make an effective representation immediately instead of waiting for the documents to be supplied with.
The ques tion of demanding the documents was wholly irrelevant and the infirmity in that regard was violative of Constitutional safeguards enshrined in Article 22(5).
It is also imperative that if the detenu was already in jail the grounds of detention are to show the awareness of that fact on the part of the detaining authority, otherwise there would be non application of mind and detention order vitiated thereby.
In the instant case though the order of detention ex facie did not mention of the detenu having been in jail, in paragraph 3 of the grounds of detention it was said that he was arrested by the Superintendent (Intelli gence) Air Customs, Trivandrum on 31 1 1988 and he was produced before the Additional Chief Judicial Magistrate (Economic Offences), Erna 223 kulam the same day.
It was clearly said: "You were remanded to judicial custody and you were subsequently released on bail," From the Records it appears that the bail application and the bail order were furnished to the detaining authority on his enquiry.
It cannot, therefore, be said that the detaining authority did not consider or rely on them.
It is difficult, therefore, to accept the submission of Mr, Kunhi kannan that those were not relied on by the detaining au thority.
The bail application contained the grounds for bail including that he had been falsely implicated as an accused in the case at the instance of persons who were inimically disposed towards him, and the bail order contained the conditions subject to which the bail was granted including that the accused, if released on bail, would report to the Superintendent (Intelligence) Air Customs, Trivandrum on every Wednesday until further order, and that "he will not change his residence without prior permission of court to 25 2 1988".
This being the position in law, and non supply of the bail application and the bail order having been apparent, the legal consequence is bound to follow.
In Khudiram Das vs State of West Bengal, ; , this Court held that where the liberty of the subject is involved it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and that the subject is not deprived of his personal liberty otherwise than in accordance with law.
The Constitutional requirement of Article 22(5) is that all the basic facts and particulars which influenced the detaining authority in arriving at the requisite satisfac tion leading to making the detention order must be communi cated to the detenu so that the detenu may have an opportu nity of making an effective representation against the order of detention.
"It is, therefore, not only the right of the Court, but also its duty as well, to examine what are the basic facts and materials which actually and in fact weighed with the detaining authority in reaching the requisite satisfaction.
The judicial scrutiny cannot be foreclosed by a mere statement of the detaining authority that it has taken into account only certain basic facts and materials and though other basic facts and materials were before it, it has not allowed them to influence its satisfaction.
The Court is entitled to examine the correctness of this state ment and determine for itself whether there were any other basic facts or materials, apart from those admitted by it, which could have reasonably influenced the decision of the detaining authority and for that purpose, the Court can certainly require the detaining authority to produce and make available to the Court the entire record of the case which was before it.
That is the least the Court can do to ensure observance of the requirements of law by the detain ing authority.
" 224 From the decision in Ramesh Yadav vs District Magis trate, Etah & Ors.
, , it can be said that the facts of the detenu having been in jail and his being granted bail are by themselves not enough to justify the passing of the detention order.
In that case it was men tioned in the grounds of detention: "At this time you were detained in the District Jail, Main puri and you have filed an application for bail in the court of law which is fixed for hearing on September 17, 1984, and there is positive apprehension that after having bail you will come out of the jail and I am convinced that after being released on bail you will indulge in activities preju dicial to the maintenance of public order.
" It was observed that the detention order was passed as the detaining authority was apprehensive that in case the detenu was released on bail, he would again carry on his criminal activities in the area.
If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised.
Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed.
The detention order was accordingly quashed.
In State of U.P. vs Kamal Kishore Saini, ; , the application of a co accused as well as statements made in the bail application filed on behalf of the detenu alleging that the detenu was falsely implicated and the Police report thereon were not produced before the detaining authority before passing the detention order.
Holding that the detention order was invalid on that ground, it was observed: "Similarly with regard to ground No. 3, the application of the co accused as well as the statement made in the bail application filed on behalf of the detenus alleging that they had been falsely implicated in the same case and the police report thereon, were not produced before the detain ing authority before passing of the detention order . .
It is incumbent to place all the vital materials before the detaining authority to enable him to come to a subjective satisfaction as to the passing of the order of detention as mandatorily required under the Act.
" 225 Non consideration of the bail order would have, there fore, in this case amounted to non application of mind.
In Union of India vs Manoharlal Narang, ; , the Supreme Court 's interim order in pending appeal against High Court 's quashing of a previous order of detention against the same detenu was not considered by the detaining authori ty while making the impugned subsequent order against him.
By the interim order Supreme Court had permitted the detenu to be at large on condition of his reporting to the police station daily.
It was held that non consideration of the interim order which constituted a relevant and important material was fatal to the subsequent detention order on ground of non application of mind.
If the detaining authori ty considered that order one could not state with definite ness which way his subjective satisfaction would have react ed and it could have persuaded the detaining authority to desist from passing the order of detention.
If in the in stant case the bail order on condition of the detenu 's reporting to the Customs authorities was not considered the detention order itself would have been affected.
Therefore, it cannot be held that while passing the detention order the bail order was not relied on by the detaining authority.
In section Gurdip Singh vs Union of India, , follow ing Ichhu Devi Choraria vs Union of India, (supra) and Smt.
Shalini Soni vs Union of India, ; , it was reiterated that if the documents which formed the basis of the order of detention were not served on the detenu along with the grounds of detention, in the eye of law there would be no service of the grounds of detention and that circum stances would vitiate his detention and make it void ab initio.
Mr. Kunhikannan relies on Haridas Amarchand Shah V.K.L. Verma; , , wherein the application for bail and the order dated September 15, 1987 passed by the Metro politan Magistrate granting conditional bail were placed before the detaining authority, but the application dated September 21, 1987 for variation of the conditions and the order made by the Metropolitan Magistrate thereon were not placed before the detaining authority, this Court held that the application for variation of conditions on bail and the order passed by the Metropolitan Magistrate varying the conditions of bail were, in its opinion, not vital and material documents inasmuch as the granting of bail by the Magistrate enabled the detenu to come out and carry on his business as before and variation of the conditions were not considered vital for the satisfaction as to need for deten tion.
That case is, therefore, distinguishable on facts.
Considering the facts in the instant case, the bail applica tion and 226 the bail order were vital materials for consideration.
If those were not considered the satisfaction of the detaining authority itself would have been impaired, and if those had been considered, they would be documents relied on by the detaining authority though the specifically mentioned in the annexure to the order of detention and those ought to have formed part of the documents.
supplied to the detenu with the grounds of detention and without them the grounds them selves could not be said to have been complete.
We have, therefore, no alternative but to hold that it amounted to denial of the detenu 's right to make an effective represen tation and that it resulted in violation of Article of the Constitution of India rendering the continued detention of the detenu illegal and entitling the detenu to be set at liberty in this case.
Mr. Vaidyanathan 's last submission is that the order of declaration dated 23 8 1988 is bad on the ground that the show cause notice dated 7 7 1988 and his reply thereto dated 26 7 1988, the bail application and the bail order dated 12 2 1988 as also the fact that the two passports of the detenu were seized were not placed before the declaring authority before he issued the declaration order under section 9(1) of the COFEPOSA Act.
Mr. Mahajan clearly stated that all the materials that were placed before the detaining authority were also placed before the declaring authority, which meant that the show cause notice, the reply thereto, and the seizure list of the passports were not placed before him.
The declaration made under section 9 of the COFEPOSA Act by the Additional Secretary to the Government of India on 23 8 1988 reads as under: "Whereas Shri M. Ahamedkutty S/o Shri Cheriya Saidukutty has been detained on 2 8 1988 in pursuance of order No. 35158/SSAI/88/Home dated 25 6 1988 of the Government of Kerala made under Section 3(1) of the Conservation of For eign Exchange and Prevention of Smuggling Activities Act, 1974 with a view to preventing him from smuggling gold; And whereas I, the undersigned, specially empowered in this behalf by the Central Government, have carefully considered the grounds of detention and the material served on the detenu: 227 Now, therefore, I. the undersigned, hereby declare that I am satisfied that the aforesaid Shri Ahamedkutty S/O Shri Cheriya Saidukutty is likely to smuggle goods into and through Trivandrum Airport which is an area highly vulnera ble to smuggling as defined in Explanation 1 to Section 9(1) of the .
" This order ex facie says that the declaring authority had carefully considered the grounds of detention and the materials served on the detenu and on those materials the authority was satisfied that the detenu was likely to smug gle goods into and through Trivandrum Airport which was an area highly vulnerable to smuggling as defined in Explana tion 1 to section 9(1) of the COFEPOSA Act.
The question is whether there were adequate materials for the authority being satisfied that the detenu was likely to smuggle goods.
The detenu having already been under detention and his detention confirmed by the Government under section 8, the Advisory Board having reported that there was sufficient cause for continued detention of the detenu, were there still enough materials to be satisfied that the detenu was likely to smuggle goods into Trivandrum vulnerable area? To decide this question, Mr. Vaidyanathan urged, it is neces sary to remember that the passports of the detenu had been seized by the authorities.
According to counsel, if the detaining authority had applied his mind to this important fact, he could not have been satisfied that his detention was necessary to restrain the detenu 's activities of smug gling.
This point we have touched upon earlier.
In any event, Mr. Vaidyanathan submits, the declaring authority could not have been satisfied that the detenu "was likely to smuggle goods into and through the Trivandrum airport" (which is the vulnerable area) for, without a passport, he could not come in or go out through the airport.
In Smt.
Rekhaben Virendra Kapadia vs State of Gujarat & Ors., ; , the declaring authority who passed an order under section 9(1) had also stated that the detenu "engages" and "is likely to engage" in transporting smuggled goods.
To that extent it was observed by this Court that there was no material for coming to the conclusion that the detenu was "engaging" himself in the unlawful activities as the detenu had been under detention.
However, in an appro priate case if the declaring authority came to the conclu sion taking into account the past activities of the detenu that he was likely to continue to indulge in such activities in future there might be no justification for this Court to interfere.
It was quite likely that persons 228 who were systematically involved in smuggling activities could cause reasonable apprehension in the minds of the declaring authority that they were likely to continue their prejudicial activities.
The emphasis in section 9 appears to be on the satisfac tion that the detenu (a) smuggles or is likely to smuggle goods into, out of or through any area highly vulnerable to smuggling; or (b) abets or is likely to abet the smuggling of goods into, out of or through any area highly vulnerable to smuggling; or (c) engages or is likely to engage in transporting or concealing or keeping smuggled goods in any area highly ' vulnerable to smuggling; and in making a decla ration to that effect within 5 weeks of the detention of the person.
Explanation i defines "area highly vulnerable to smuggling" and Explanation 2 defines 'customs airport" and the "customs station".
It is true that under section 10 of the COFEPOSA Act, where the provisions of section 9 apply, the maximum period of detention shall be a period of two years from the date of detention or the specified period whichever period expires later.
However, nothing contained in section 9 shall affect the power of the appropriate Government in either case to revoke or modify the detention order at any earlier time.
This may imply an obligation on the part of the detaining authority to place the facts and materials that occurred between the date of detention and the date of declaration, so as to justify prolongation of the period of detention.
In Smt.
Madhu Khanna vs Administra tor, Union Territory Delhi, , where detenu 's representation was rejected and declaration under section 9(1) was made on the same day but in different files, mere non reference of the representation in the declaration was held not to have shown failure of the declaring authority to consider the representation before making the declaration.
However, as we have taken the view that non furnishing of the copies of the bail application and the bail order has resulted in violation of Article 22(5) of the Constitution, we do not express any opinion on this submission.
In the result, the detention order and the impugned judgment are set aside, the appeal is allowed and the detenu is to be set at liberty in this case.
R.S.S. Appeal allowed.

summary:
After the appellant landed at Trivandrum Airport from Abu Dhabi, he was intercepted by the Customs officials detecting that he smuggled 1280 gms.
of gold.
He was arrest ed on 31.1.1988.
On 12.2.1988 he was granted bail on certain conditions.
With a view to preventing the appellant from smuggling gold, the impugned detention order was passed against him on 25.6.1988 by the Home Secretary, Government of Kerala, in exercise of the powers conferred by section 3(1)(i) of the .
The appellant was taken into custody on 2.8.1988.
The Appropriate Authority and the Advisory Board found sufficient cause for his detention.
The detenu challenged his detention moving a Habeas Corpus petition under Article 226 of the Constitution, read with section 482, Cr.
P.C., which was dismissed in limine by the High Court.
Before this Court.
the main grounds of challenge to the detention order were that (1) after the event there was inordinate delay in passing the detention order which showed that there was no genuine.
need for detention of the appel lant; (2) there was inordinate and unexplained delay of 38 days in execution of the detention order; (3) all the docu ments and materials, particularly the appellants bail appli cation, the bail order, the show cause notice and his reply thereto were not placed before the detaining authority; (4) these documents and the fact that the appellant 's old and new passports were seized and without those it would not be possible for the appellant to carry on smuggling, were not brought to the notice of the declaring authority; and (5) there was 210 non application of mind.
On behalf of the State of Kerala it was submitted, inter alia, that (1) there was no such delay between the date of detection and the date of passing the order of detention so as to make the grounds stale or to snap ' the relation; (2) that the delay in execution of the detention order had been explained; and (3) that the bail application as well as the bail order were placed before the detaining authority but the same having not been referred to or relied on by the detaining authority, copies thereof were not required to be furnished to the detenu along with the grounds of detention.
On behalf of the Union of India it was submitted that all the documents and materials that were required to be placed before the declaring authority were duly placed and on consideration of the relevant materials the declaring authority validly made the declaration.
Allowing the appeal and setting aside the order of detention, this Court, HELD: (1) It has been laid down by this Court in a series of decisions that the rule as to unexplained delay in taking action is not inflexible.
Under a law like the COFE POSA Act enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeer ing who, owing to their large resources and influence, have been posing a serious threat to the economy and thereby to the security of the nation, the courts should not merely on account of the delay in making of an order of detention assume that such delay, if not satisfactorily explained.
must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached.
Taking of such a view would not be warranted unless the Court finds that the grounds are stale or illusory or that there was no real nexus between the grounds and the impugned order of detention.
[217B E] Ashok Narain vs Union of India, ; Smt.
Rekhaben Virendra Kapadia vs State of Gujarat, ; ; Sheikh Salim vs The State of West Bengal, ; ; Rajendrakumar Natvarlal Shah vs State of Gujarat, ; ; Olia Mallick vs The State of West Bengal, ; Golam Hussain vs The Commissioner of Police, ; ; Odut Ali Miah vs The State of West Bengal, ; Vijay Narain Singh vs State of Bihar, 211 ; Gora vs State of West Bengal, ; ; Rai Kumar Singh vs State of Bihar, ; ; Smt.
Hemlata Kantilal Shah vs State of Maharasthra, ; , referred to.
(2) In appropriate cases it could be assumed that the link was snapped if there was a long and unexplained delay between the date of order of detention and the arrest of the detenu and in such a case the order of detention could be struck down unless the grounds indicated a fresh application of mind of the detaining authority to the new situation and the changed circumstances.
But where the delay is not only adequately explained but also is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider the 'link ' not snapped but strengthened.
[219C D] Mohammed Saleem vs Union of India, [1989] 3 Delhi Lawyer 77; Bhawarlal Ganeshmalji vs State of Tamil Nadu, ; ; Shafiq Ahmad vs District Magistrate, Meerut, [1989] 4 SCC 556, referred to.
(3) Seizure of the detenu 's passports was no doubt one of the factors that the detaining authority should have taken (and did in fact take) into account, but it was for him to assess the weight to be attached to such a circum stance in arriving at his final decision and it is not open to the Court to interfere with the merits of his decision.
[221E F] (4) From the records it appears that the bail applica tion and the bail order were furnished to the detaining authority on his enquiry.
It is difficult, therefore, to accept the submission of the State Government that those were not relied on by the detaining authority.
[223A B] (5) The constitutional requirement of Article 22(5) is that all the basic facts and particulars which influenced the detaining authority in arriving at the requisite satis faction leading to making the detention order must be commu nicated to the detenu so that the detenu may have an oppor tunity of making an effective representation against the order of detention.
It is immaterial whether the detenu already knew about their contents or not.
[223E F] Ramchandra A. Kamat vs Union of India, ; ; Frances Coralia Muffin vs W.C. Khambra.
; ; Smt.
Ichhu Devi Choraria vs Union Of India, ; ; Pritam Nath Hoon vs Union of India, ; ; Shri Tushar Thakkar vs Union of India, ; Lallubhai Jogibhai Patel vs Union of 212 India; , ; Kirit Kumar Chaman Lal Kundaliya vs Union of India, ; Smt.
Ana Carolina D 'Souza vs Union of India, ; Mehrunissa vs State of Maharashtra, ; Mohd. Zakir vs Delhi Administration, and Khudiram Das vs State of West Bengal, ; , referred to.
(6) If the documents which formed the basis of the order of detention were not served on the detenu along with the grounds of detention, in the eye of law there would be no service of the grounds of detention and that circumstance would vitiate his detention and make it void ab initio.
[225D E] State of U.P. vs Kamal Kishore Saini, ; ; Union of India vs Manoharlal Narang, ; ; section Gurdip Singh vs Union of India, ; Ichhu Devi Choraria vs Union of India, ; ; Smt.
Shalini Soni vs Union of India, ; , referred to.
Haridas Amarchand Shah vs K.L. Verma, ; distinguished.
(7) The bail application and the bail order, in the instant case, were vital materials for consideration.
If those were not considered the satisfaction of the detaining authority itself would have been impaired, and if those had been considered, they would be documents relied on by the detaining authority though not specifically mentioned in the annexure to the order of detention and those ought to have formed part of the documents supplied to the detenu with the grounds of detention and without them the grounds themselves could not be said to have been complete.[226A B] (8) There is no alternative but to hold that non supply of essential documents to the detenu amounted to denial of the detenu 's right to make an effective representation and that it resulted in violation of Article 22(5) of the Con stitution rendered the continue detention of the detenu illegal and entitling the detenu to be set at liberty.
[226B C] (9) Sections 9 and 10 of the COFEPOSA Act imply an obligation on the part of the detaining authority to place the facts and materials that occurred between the date of detention and the date of declaration, so as to justify prolongation of the period of detention.
[228D E] 213 Smt.
Rekhaben Virendra Kapadia vs State of Gujarat & Ors., ; ; Smt.
Madhu Khanna vs Administrator, Union Territory of Delhi, , referred to.


judgement:
Criminal Appeal No. 669 of 1989.
From the Judgment and Order dated 18.5.1989 of the Designated Court, Poona in Crl.
Bail Application No. 11 of 1989.
G. Ramaswamy, Additional Solicitor General, S.V. Tar kunde and A.M. Khanwilkar for the Appellant.
U.R. Lalit and V.N. Ganpule for the Respondent.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
By the impugned order dated the 18th May, 1989 the Designated Court, Pune directed the respondent to be released on bail.
The respondent was accused of having committed offence under Section 3(1) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as 'the Act ') besides the offences punishable under Sections 148, 149, 120 B and 302 of the Indian Penal Code.
The respondent was the member of the Shiv Sena Party and the Chief of the Thane District Unit.
In consequence of the defeat of the party in Mayoral election held on 20th March, 1989 the party felt that 75 there was cross voting and there were traitors among them.
There had been a declaration by the respondent that such traitors would not be spared.
The respondent was arrested in connection with the murder of one of the Corporators Shrid har Khopkar on 21.4.
1989 on registering Crime No. 1348/89.
In releasing the respondent on bail while investigation was pending, the Designated Court appears to have been influenced by the fact that respondent was the leader of Political Party.
The court assumed that as a leader, he would not be involved in such crimes and that there are reasonable grounds for believing that the respondent is not guilty of any offence under the Act.
Having heard both the sides, we feel that the whole approach by the learned Judge was misconceived and the order is unsustainable.
We have been taken through the entire proceedings.
We find that the learned Judge has not noticed the relevant provisions of the Act which restrict the powers of the Court in granting bail.
The learned Judge had also refused to consider the materials placed before it for the purpose of satisfying himself whether there are no reasona ble grounds to believe that the respondent has committed the offence.
In the course of the investigation witnesses have been questioned and their statements have been reduced to writing.
The learned Judge refused to consider the state ments recorded in the course of the investigation for the simple reason that such statements had not been read out in open Court though the Court was empowered to peruse the case diary for the purpose of satisfying itself as to the stage of investigation and the nature of the evidence that had been collected.
Sub Section (8) of Section 20 of the Act clearly pro vides that unless the Court is satisfied for the reasons to be recorded that there are reasonable grounds to believe that the respondent is not involved in disruptive activi ties, bail shall ordinarily be refused.
Even under the provisions of Sections 437 and 438 of the Code of Criminal Procedure, the powers of the Sessions Judge are not unfet tered.
The salient principles in granting bail in grave crimes have not been taken note of.
This Court would not ordinarily interfere with the discretion of the lower court in granting or refusing bail but in cases where bail has been granted on irrelevant considerations, such as the status or influence of the person accused and regardless of the nature of the accusa tion and relevancy of materials on record, this Court would not 76 hesitate to interfere for the ends of justice.
There are no hard and fast rules regarding grant or refusal of bail, each case has to be considered on its own merits.
The matter always calls for judicious exercise of discretion by the Court.
Where the offence is of serious nature the Court has to decide the question of grant of bail in the light of such considerations as the nature and seri ousness of offence, character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of presence of the accused not being secured at the trial and the reasonable apprehension of witness being tampered with, the larger interest of the public or such similar other considerations.
In the present case the learned Judge observed that it is a case of respectable person of a big political organisa tion, his freedom cannot be curtailed if he is entitled to bail.
His liberty cannot be curbed if enlarged on bail and, therefore, no kind of condition is required to be imposed.
The Court also observed that being a leader of the big political organisation one cannot expect that the respondent will commit any offence if enlarged on bail and he cannot be called to be a criminal.
The learned Judge was obsessed by the fact that the respondent was associated with a political party and was oblivious of the nature of the allegations made against him and the relevant materials indicating that the respondent had been making utterances inciting violence.
The respondent gave repeated statements to the Press saying that the traitors ' life will be made difficult and probably they will be killed.
This was published in Marathi Daily 'Navakal ' on 22.3.89.
He repeated his threat and this ap peared in an interview given to the reporter of the Weekly Magazine 'Lokprabha ' in its issue of 9.4.1989.
In an inter view in daily 'Urdu Times ' dated 16.4.1989 the respondent asserted that he knew the names of the traitors but could not disclose the same.
He also asserted that the punishment for traitors is death and they would be killed and this decision has not been taken by him in anger.
In the backdrop of such assertions, it was necessary for the Court to consider the further materials collected by the investigating agency by recording statements of witness es.
The court below misdirected itself in refusing to look into such statements and concluding that it is a case for granting bail taking into account only the position held by the respondent in the party.
The court clearly erred in disposing of the application for bail.
77 In view of what has been stated above, we set aside the order of the Designated Court and allow the appeal and cancel the bail granted to the respondent, without prejudice to his right to move the Designated Court at any subsequent stage.
G.N. Appeal allowed.

dataset_name: IN-Abs

summary:
The respondent was a member of a political party.
Conse quent upon the defeat of the party in Mayoral elections held in March, 1989, the party felt that there was cross voting and there were traitors among them and the respondent made a declaration that such traitors would not be spared.
Thereaf ter the respondent was arrested in connection with the murder of one of the Corporators.
He was accused of having committed offence under Section 3(1) of the Terrorist and Disruptive Activities (Prevention) Act, 1987, besides of fences punishable under Sections 148, 149, 120 B and 302 of the Indian Penal Code.
The designated court released the respondent on bail while the investigation was pending.
This appeal by the State is against the order of the designated court.
Allowing the appeal, this Court, HELD: 1.
Sub Section (8) of SeCtion 20 of the Act clear ly provides that unless the court is satisfied for the reasons to be recorded that there are reasonable grounds to believe that the respondent is not involved in disruptive activities bail shall ordinarily be refused.
Even under the provisions of Section 437 and 438 of the Code of ' Criminal Procedure, the powers of the Sessions Judge are not unfet tered.
[75F] 2.
Where the offence is of serious nature the Court has to decide the question of grant of bail in the light of such considerations as the nature and seriousness of offence, character of the evidence, circums 74 tances which are peculiar to the accused, a reasonable possibility of presence of the accused not being secured at the trial and the reasonable apprehension of witness being tampered with, the larger interest of the public or such similar other consideration.
[76B C] 3.
In the instant case, the salient principles in grant ing bail in grave crimes have not been taken note of.
The Court was obsessed by the fact that the respondent was associated with a political party and was oblivious of the nature of the allegations made against him and the relevant materials indicating that the respondent had been making utterances inciting violence.
[76D] 4.
This court would not ordinarily interfere with the discretion of the lower court in granting or refusing bail but in cases where bail has been granted on irrelevant considerations, such as the status or influence of the person accused and regardless of the nature of the accusa tion and relevancy of materials on record, this Court would not hesitate to interfere for the ends of justice.
[75G H; 76A]


judgement:
Civil Appeal No. 10234 of 1983.
From the Judgment and Order dated 3.1.19/9 of the Alla habad High Court in Civil Revision No. 3714 of 1978.
K.B. Rohtagi for the Appellant.
R.K. Garg and D.K. Garg for the Respondent.
The Judgment of the Court was delivered by AHMADI, J.
The short question which arises for our consideration in this appeal by special leave is whether a tenant of a premises constructed in 1967 is entitled to the protection of Section 39 of the U.P. Urban Buildings (Regu lation of Letting, Rent and Eviction) Act, 1972 (Act No. 13 of 1972 as amended by Act No. 17 of 1985), hereinafter called 'the Act ', in an eviction suit instituted before the commencement of the Act.
The Act came into force w.e.f.
15th July, 1972 by virtue of the notification issued by the State Government in exercise of power conferred by Sub Section 4 of Section 1 of the Act, vide Notification No. 3409/XXIX 59 72 dated 27th June, 1972 published in the U.P. Government Gazette, Extra, dated 1st July, 1972.
The Act was enacted for inter alia regulation of letting and eviction of tenants from certain classes of buildings situate in urban areas specified in Sub Section (3) of Section 1.
Section 2 indicates the buildings to which the Act shall not apply.
We are concerned with Sub Section (2) of Section 2, the rele vant part whereof reads as under: "Except as provided in sub section (5) of section 12, sub section (1 A) of Section 21, sub section (2) of Section 24, Sections 24 A, 24 B, 24 C or sub section (3) of section 29, nothing in this Act shall apply to building during a period of ten years from the date on which its construction is completed".
Since it is not disputed before us that the construction of the suit property was completed in 1967, we need not set out the provisos and the explanations to the sub section.
Section 3 defines the various expressions used in the Act.
Under 189 clause (a) 'tenant ', in relation to a building means a person by whom its rent is payable and 'building ' according to clause (i) means a residential or non residential roofed structure including any land, garages and out houses appur tenant thereto.
Any person to whom rent is or if the build ing were let, would be, payable, including his agent or attorney or such person, is a 'landlord ' within the meaning of clause (j) of that section.
It would thus seem that but for the exemption granted by Section 2(2), the provisions of the Act would have applied to the letting of the suit prem ises.
The scheme of Section 2 is that buildings referred to in clauses (a) to (f) are exempt from the operation of the Act for all times (subject of course to legislative changes) whereas the exemption granted by Section 2(2) is for a period of ten years from the date of completion of construc tion.
Chapter III regulates to letting.
Section 11 provides that no person shall let any building except in pursuance of an allotment order issued by the District Magistrate under Section 16.
Chapter IV regulates eviction.
Section 20 inter alia prohibits the institution of a suit for eviction of a tenant from any building except on the grounds catalogued in clauses (a) to (g) of sub section (2) thereof.
Section 21 provides for the eviction of a tenant if the building is bonafide required by the landlord for his own use or the use of any of his family member.
The scheme of Chapters III & IV clearly shows that both the letting of and eviction from the buildings to which the Act applies are regulated by the provisions of the Act.
Section 39 of the Act with which we are mainly concerned finds its place in Chapter VII entitled Miscellaneous and Transitional Provisions.
That section reads as under: "Pending suits for eviction relating to building brought under regulation for the first time In any suit for evic tion of a tenant from any building to which the old Act did not apply, pending on the date of commencement of this Act, where the tenant within one month from such date of com mencement or from the date of his knowledge of the pendency of the suit, whichever be later, deposits in the court before which the suit is pending, the entire amount of rent and damages for use and occupation (such damages for use and occupation being calculated at the same rate as rent) to gether with interest thereon at the rate of nine per cent per annum and the landlord 's full cost of the suit, no decree for eviction shall be passed except on any of the 190 grounds mentioned in the proviso to sub section (1) or in clauses (b) to (g) of sub section (2) of Section 20, and parties shall be entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary.
" This Section carried an explanation which came to be omitted by Section 8(iv) (and be deemed always to have been omitted) of the Civil Laws Amendment Act, 1972.
Section 40 lays down that where an appeal or revision arising out of a suit for eviction of a tenant from any building to which the old Act did not apply is pending on the date of commencement of this Act, it shall be disposed of in accordance with the provi sions of Section 39, which shall mutatis mutandis apply.
The plain reading of Section 39 makes it clear that the said section obliges the court to refuse to pass a decree for eviction, except on any of the grounds mentioned in the proviso to sub section (1) or in clauses (b) to (g) of sub section (2) of Section 20, if the following four require ments are satisfied: (i) the building is one to which the old Act (the U.P. (Temporary) Control of Rent and Eviction Act, 1947 U.P. Act No. III of 1947) did not apply; (ii) the eviction suit must be pending on the date of commencement of the Act i.e., 15th July, 1972: (iii) the tenant deposits in court the entire amount of rent/damages for the use and occupation of the building together with interest at 9% per annum and the landlord 's full cost of the suit; and (iv) such deposit is made within one month from the date of commencement of the Act or from the date of knowledge of the pendency of the eviction suit, whichever is later.
The benefit of Section 39 is extended mutatis mutandis to an appeal or revision arising out of an eviction suit to which the old Act did not apply provided the said appeal or revi sion was pending on the date of commencement of the Act.
On a plain reading of Section 39 it becomes clear that in a suit for eviction to which the said provision applies, the Court trying the suit is 191 precluded from passing a decree for eviction if the tenant deposits in court the entire amount of rent and damages together with interest at 9% per annum and the landlord 's full cost of the suit within the time allowed but this embargo does not apply if eviction is sought on the ground or grounds mentioned in the proviso to Sub section (1) or in clauses (b) to (g) of Sub section (2) of Section 20.
The ground mentioned in the proviso to sub section (1) of Sec tion 20 is determination of tenancy by efflux of time where the duration of tenancy is fixed under a compromise or adjustment arrived at with reference to a suit, appeal, revision or execution proceeding which is recorded in Court or is otherwise reduced to writing and signed by the tenant.
Sub section (2) of Section 20 enumerates the grounds in clauses (a) to (g) on which an eviction suit can be rounded against a tenant.
Clause (a) permits the institution of a suit for eviction if the tenant is in arrears of rent for not less than four months and has failed to pay the same within one month from the date of service of a notice of demand upon him.
The grounds in clauses (b) to (g) are other than arrears of rent.
From the fact that a suit rounded on anyone or more of the grounds set out in the proviso to sub section (1) and clauses (b) to (g) of sub section (2) of Section 20 is exempt from the operation of Section 39, it would seem that the legislature desired to grant protection from eviction where the same is sought on the sole ground of arrears of rent.
That is why in the exemption clause con tained in Section 39, clause (a) to sub section (2) of Section 20 which permits eviction on the ground of arrears of rent is deliberately and intentionally excluded and an embargo is created against the passing of an eviction decree if the tenant deposits in court within the time allowed the entire arrears of rent together with interest and costs.
If the suit is on anyone or more of the exempted grounds, the landlord is permitted to proceed with the same, if necessary by effecting an amendment in the pleading and by adducing additional evidence.
Such a suit may be continued and if the ground or grounds pleaded is/are proved, the court is enti tled to grant eviction.
It, therefore, seems clear to us that the legislature intended to protect eviction of a tenant on the ground of arrears of rent if the tenant com plied with the conditions of Section 39.
In the present proceedings it is not disputed that the construction of the demised premises was completed in 1967 and the letting had taken place in the same year.
It is also not disputed that immediately on the completion of ten years the tenant deposited on 2nd September, 1977 an amount of Rs.4,005 being the arrears of rent inclusive of interest and cost.
It is not disputed that this payment was made within one month after the expiry of the period of ten years stipu lated in 192 Section 2(2) of the Act to take advantage of Section 39 of the Act.
The eviction suit was admittedly filed on 27th May, 1972 i.e. before the commencement of the Act i.e. 15th July, 1972.
There is also no dispute that the provisions of the old Act did not apply to the suit.
On these undisputed facts the trial court gave the benefit of Section 39 and refused to order ejectment of the tenant.
The landlord filed a revision application which was rejected by the Second Addi tional District Judge, Bulandshahr, on 15th July, 1978.
The High Court rejected the landlord 's further revision applica tion on the ground that the question was concluded by the decision in R.D. Ram Nath & Co. & Anr.
vs Girdhari Lal & Anr.
, It is against the said decision that the present appeal is preferred.
The question then is wheth er or not the provision of Section 39 of the Act is attract ed in the backdrop of the above facts.
We may now consider the case law on the point to which our attention was called.
In Ram Swaroop Rai vs Lilavathi, ; 3 SCC 452, this Court while con struing section 2(2) of the Act observed that the burden is on the landlord to show that his case falls within the exemption engrafted in the said sub Section.
In the present case, since the facts are not in dispute the question of onus recedes in the background.
In Om Prakash Gupta etc.
vs Dig Vijen: drapal Gupta etc.
; , , a three Judge Bench had to consider the effect of section 2(2) read with section 39 of the Act.
In that case, an eviction suit was filed against the appellant tenant on the ground that the provisions of the Act did not apply to the demised shop and the tenant was therefore liable to be evicted.
The Trial Court decreed the suit on the finding that the construction of the suit shop was completed in 1967 and since 10 years had not elapsed from the date of completion of the construc tion the provisions of the Act had no application.
The tenant carried the matter in revision but the judgment and decree of the Trial Court was substantially maintained.
The tenant thereupon moved the High Court under section 115, C.P.C. The learned Single Judge who heard the revision remitted the matter to the Trial Court for recording a finding as to on what date the construction of the building could be said to have been completed within the meaning of section 2(2) read with Explanation I(a) thereto.
The Trial Court returned a finding to the effect that the construction of the disputed shop must be taken to have been completed on the date of the first assessment, i.e. 1st April, 1968, within the meaning of the said provision.
The tenant chal lenged the finding on the ground that the date of occupation should have been taken to be the date of completion of the construction and not the date of the first assessment.
The Division 193 Bench to which the case was referred concluded that the construction of the shop must be deemed to have been com pleted on 1st April, 1968 i.e. at the date of the first assessment and not at the date of actual occupation and hence the provisions of the Act had no application to the building till the date of the decision of the revision application on 23rd March, 1978 as the period of 10 years expired later on 31st March, 1978.
This Court upheld the finding that the date of construction must be taken, as the date of first assessment i.e. 1st April, 1968 and not the date of actual occupation.
To overcome this difficulty it was contended on behalf of the tenant that on a correct reading of section 2(2) the exemption engrafted therein would not embrace buildings constructed prior to the en forcement of the Act.
This Court construing the language of section 2(2) of the Act held that the sub section nowhere provided that the building should have been constructed after the commencement of the Act; to so interpret it would tantamount to adding words in it which was not permissible.
This Court, therefore, negatived the contention that the exemption under the sub section did not embrace buildings constructed before the Act came into force.
As pointed out earlier the revision application was decided on 23rd March, 1978 whereas the period of 10 years from the date of comple tion of the construction i.e. 1st April, 1968 was to end on 31st March, 1978 i.e. a week later.
Section 39 of the Act, therefore, clearly did not apply in the facts of that case.
Secondly, it was found that the suit was instituted on 23rd March, 1974 long after the commencement of the Act and was therefore not pending on 15th July, 1972 to attract the application of Section 39 of the Act.
For these reasons, this Court came to the conclusion that the appellant Om Prakash was not entitled to tile protection of section 39 of tile Act.
Two features which distinguish this case from the case on hand are: (i) that the revision application was disposed of by the High Court before the expiry of the moratorium period of 10 years granted by section 2(2) of the Act; and (ii) the suit having been filed long after the commencement of the Act on 15th July, 1972 could not be said to be pending at the date of the commencement of the Act to enable the tenant to seek redress under section 39 of the Act.
In Vineet Kumar vs Mangal Sain Wadhera, ; , an , eviction suit was filed on the ground of arrears of rent and damages for use and occupation of the demised premises pendente lite.
The tenant was inducted in the building stated to have been constructed in 1971 on 7th February, 1972, on a monthly rent of Rs.250.
The building in suit was assessed to house and water tax on 1st October, 197 1.
The tenant defaulted in the payment of rent 'despite service of notice dated 24th 194 March, 1977.
Admittedly, the suit was filed after the com mencement of the Act.
The point for consideration was wheth er the building which was not 10 years ' old on the date of the suit and was therefore exempted from the operation of the Act, would be governed by it on the expiry of the period of 10 years pendente lite.
Dealing with this contention this Court observed in paragraph 13 of the judgment as under: "The moment a building becomes ten years old to be reckoned from the date of completion, the new Rent Act would become applicable.
" The decision in Om Prakash Gupta 's case (supra) was rightly distinguished on the ground that it was not neces sary in that case to deal with the question whether the tenant would be entitled to the benefit of Section 39 as the building had not become ten years old when the revision was disposed of by the High Court on 23rd March, 1978.
Dealing next with the contention that the Court had to decide the case on the basis of the cause of action that had accrued before the institution of the suit and not on a new cause of action, this Court, relying on the observations to the effect that subsequent developments can be looked into made in paragraph 14 of the decision in Pasupuleti Venkates warlu vs
Motor and General Traders; , , ob served as under: "Normally amendment is not allowed if it changes the cause of action.
But it is well recognised that where the amend ment does not constitute an addition of a new cause of action, or raise a new case, but amounts to no more than adding to the facts already on the record, the amendment would be allowed even after the statutory period of limita tion.
The question in the present case is whether by seeking the benefit of Section 39 of the new Act there is a change in the cause of action." After referring to the case of A.K. Gupta & Sons vs Damodar Valley Corporation, ; , this Court further observed: "The appellant in the present case only seeks the protection of the new Rent Act which became applicable to the premises in question during the pendency of the litigation.
We see no reason why the benefit of the new Rent Act be 195 not given to the appellant.
Section 20 of the new Rent Act 'provides a bar to a suit for eviction of a tenant except on the specified grounds as provided in the section.
Subsection (4) of Section 20 stipulates that in any suit for eviction on the grounds mentioned in clauses (a) to sub section (2), viz. the arrears of rent, if at the first hearing of the suit the tenant in default pays all arrears of rent to the landlord or deposits in court the entire amount of rent and damages for use and occupation of the building due from him, such damages for use and occupation being calculated at the same rate as rent together with interest thereon at the rate of nine per cent per annum and the landlord 's cost of the suit in respect thereof after deducting therefrom any amount already deposited by the tenant under sub section (1) of Section 30, the court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground.
Sections 39 and 40 of the new Rent Act also indicate that the benefit of the new Act will be given to the tenant if the conditions contemplated in those sections are satisfied.
Section 39 also indicates that the parties are entitled to make neces sary amendment in their pleadings and to adduce additional evidence where necessary.
" On this line of reason this Court set aside the judgment and decree of the High Court insofar as it related to evic tion.
We find, with respect, that Their Lordships committed an error in overlooking the text of Section 39 of the Act.
That section in terms says that the suit must be pending at the commencement of the Act to seek the benefit of that provi sion.
Admittedly, the suit in question was filed after the commencement of the Act and hence the tenant was not enti tled to the benefit of Section 39 of the Act.
But that apart, in a subsequent decision of this Court in Nand Ki shore Marwah vs Samundri Devi, ; , this Court dissented from the view in Vineet Kumar 's case on the ground that the attention of the Court was not drawn to Om Prakash Gupta 's case (supra) which specifically considered the provisions of the Act and in particular the language of Section 39 of the Act to point out that in order to attract that provision it must be shown that the suit was pending at the commencement of the Act i.e. on 15th July, 1975.
Refer ring to Section 20 of the Act, which bars institution of a suit for eviction of a tenant except on grounds specified in clauses (a) to (g) this Court observed as under: 196 "This clearly indicates that the restriction put under Section 20 is to the institution of the suit itself and therefore it is clear that if the provisions of this Act applied then no suit for eviction can be instituted except on the ground 'specified in the sub sections of this sec tion.
Keeping in view the language of this section if we examine the provisions contained in sub section (2) of Section (2) it will be clear that for a newly constructed building the provisions of this Act will not apply for 10 years and therefore so far as the restriction under Section 20 is concerned they will not apply and therefore it is clear that within 10 years as provided for in sub section (2) of Section 2 restriction on the institution of suit as provided for in Section 20 subsection (1) quoted above will not be applicable and it is thus clear that during the pendency of the litigation even if 10 years expired the restriction will not be attracted as the suit has been instituted within 10 years and therefore restriction as provided for in Section 20 cannot be attracted.
" It may with respect, be pointed out that the comment that the Court 's attention was drawn to Om Prakash Gupta 's case is not correct as this case is specifically mentioned in paragraph 14 of the judgment in that case.
Lastly, in Atma Ram Mittal vs Ishwar Singh Punia, ; , the appellant landlord had filed an eviction suit in respect of a shop which had been rented to the respondent in 1978.
The suit was filed on the ground that the tenant was in arrears of rent from ist December, 1981 to 31st May, 1982 and the tenancy had been duly terminated by a notice.
The suit was filed under sub section (3) of Section 1 of the Haryana Urban (Control of Rent and Eviction) Act, 1973.
That sub section provided that "nothing in the Act shall apply to any building the construction of which is completed on or after the commencement of this Act for a period of ten years from the date of its completion".
Section 13(1) enumerated the usual grounds on which possession of a building or land could be obtained from a tenant.
In November 1984, the tenant applied for dismissal of the suit on the ground that the moratorium period of 10 years expired in June/984 since admittedly the demised shop was constructed sometime in June 1974.
Quoting the following passage from Ram Swaroop Rai 's, case (supra): 197 "The legislature found that rent control law had a chilling effect on new building construction, and so, to encourage more building operations, amended the statute to release, from the shackles of legislative restriction, 'new construc tions ' for a period of ten years.
So much so, a landlord who had let out his new building could recover possession with out impediment if he instituted such proceeding within ten years of completion.
" this Court held as under: "It is well settled that no man should suffer because of the fault of the court or delay in the procedure.
Broom has stated the maxim "actus curiae neminem gravabit" an act of court shall prejudice no man.
Therefore, having regard to the time normally consumed for adjudication, the ten years ' exemption or holiday from the application of the Rent Act would become illusory, if the suit has to be filed within that time and be disposed of finally.
It is common knowledge that unless a suit is instituted soon after the date of letting it would never be disposed of within ten years and even then within that time it may not be disposed of.
That will make the ten years holiday from the Rent Act illusory and provide no incentive to the landlords to build new houses to solve problem of shortages of houses.
The purpose of legislation would thus be defeated.
Purposive interpreta tion in a social amelioration legislation is an imperative irrespective of anything else.
" Proceeding further, this Court said: "We are clearly of the opinion that having regard to the language we must find the reason and the spirit of the law.
If the immunity from the operation of the Rent Act is made and depended upon the ultimate disposal of the case within the period of exemption of ten years which is in reality an impossibility, then there would be empty reasons.
In our opinion, bearing in mind the well settled principles that the rights of the parties crystallise to the date of the institution of the suit as enunciated by this Court in Om Prakash Gupta vs Digviiendrapal Gupta, the meaningful con struc 198 tion must be that the exemption would apply for a period of ten years and will continue to be available until suit is disposed of or adjudicated.
Such suit or proceeding must be instituted within the stipulated period of ten years.
Once rights crystallise the adjudication must be in accordance with law.
" In order to appreciate the controversy in the correct perspective it would not be out of place to notice the legislative changes.
During the second world war certain orders were issued under the Defence of India Rules, 1939, relating to the control and letting of accommodations to cope with the paucity of accommodation.
This was followed by an ordinance promulgated in 1946 which was repealed by the U.P. (Temporary) Control of Rent and Eviction Act, 1947 described as the Old Act by Section 3(h) of the Act.
The measure which was intended to be of a temporary character only continued till the passing of the Act in 1972.
When the old Act replaced the 1946 ordinance, the expectation was that the acute shortage of accommodation was only a tempo rary feature and would disappear with the passage of time.
The hope was belied and the stringent restrictions placed on the landlord 's rights in the matter of fixation and recovery of rent and eviction from the rented premises had to be continued indefinitely.
These restrictions discouraged building activity which added to the already serious housing problem.
There was an urgent need to provide incentives and thereby encourage new constructions.
With that in view Section 2(2) provided that nothing in the Act shall apply to a building during a period of ten years from the date on which its construction is completed.
In other words the legislature has relieved the owner of a new building from the restrictive provisions relating to rent, etc., contained in Sections 4 to 9 of the Act.
So also such owners are granted a holiday or recess of ten years from the restric tive provisions regulating letting (Chapter III) and Evic tion (Chapter IV) contained in the Act.
This freedom from the operation of the Act for ten years is given for the obvious purpose of encouraging building activity to ease the problem of scarcity of accommodation.
The provisions of the Act in this behalf must, therefore, be understood in this background.
Section 2(2) in terms says that the provisions of the Act will not apply to new constructions for a period of ten years from the date of completion of the construction.
Read positively it means that the Act will apply to such build ings on the expiry of the recess period.
But how are suits already filed during the recess period to be dealt with? Does 199 the Act offer any clue in this behalf? In this connection the only provisions which come to mind are sections 39 and 40 of the Act.
Section 39 deals with suits pending on the date of commencement of the Act.
Section 40 extends protec tion to an appeal or revision pending on the date of com mencement of the Act provided it has arisen out of an evic tion suit filed against a tenant to which the old Act did not apply.
Such an appeal or revision has to be disposed of in the same manner as the suit is required to be dealt with under Section 39 of the Act.
In order to secure the benefit of Section 39 or 40 it must be shown that the suit, appeal or revision was pending on the date of commencement of the Act.
Secondly, if the suit is rounded on the allegation of nonpayment of rent, the tenant must, within one month from the date of commencement of the Act or from the date of knowledge of the pendency of the suit, deposit in court the entire amount of rent and damages for use and occupation of the building with interest as prescribed and landlord 's entire cost of the suit, to take the benefit of the said provision.
If both these conditions are satisfied, the law, Section 39.
mandates that no decree for eviction shall be passed except on any of the grounds specified in the proviso to sub section (1) or clauses (b) to (g) of sub section (2) of Section 20 of the Act.
Similarly Section 40 lays down that if an appeal or revision (arising out of a suit for eviction of a tenant from any building to which the old Act does not apply) is pending on the date of commencement of the Act, the benefit of Section 39 will be available to the tenant.
What these two provisions emphasise is that in order to avail of the benefit engrafted therein, the proceedings i.e., the suit, appeal or revision application must be pending at the date of commencement of.
the Act, i.e., 15th July, 1972, and the tenant must have deposited the arrears of rent and damages together with interest and full cost of the landlord in the court within one month from the date of such commencement.
Once the four conditions of Section 39 set out in the earlier part of this judgment are satisfied, the court is debarred from passing a decree in ejectment except on any of the grounds mentioned in the proviso to sub section (1) or in clauses (b) to (g) of sub section (2) of Section 20 of the Act.
Therefore, even in a suit, appeal or revision application pending at the date of commencement of the Act, a decree for eviction can be passed if the case is brought within the exemption clause of Section 39 not withstanding the fact that the tenant has deposited the full amount of arrears of rent and damages together with interest and cost as required by that section.
It, therefore, seems clear to us on the plain language of Section 39 of the Act that the legislature desired to grant protection from evic tion where the same was sought on the sole ground of arrears of rent.
In cases falling within the exemption clauses of that section, the legislature has 200 itself permitted the landlord to proceed with the suit and claim eviction on any of the grounds enumerated in the proviso to sub section (1) or in clauses (b) to (g) of sub section (2) of Section 20 of the Act, if necessary by making the required amendment in the pleadings and by adducing additional evidence where necessary.
It therefore seems to us that the legislature desired to limit the scope of the application of Sections 39 and 40 to suits, appeals and revisions pending on the date of com mencement of the Act, i.e. 15th July 1972, relating to buildings to which the old Act did not apply and to which the new Act was to apply forthwith and not at a later date.
This is clear from the fact that the section contemplates deposit of arrears of rent and damages together with inter est and cost within one month from "such date of commence ment" meaning the date of commencement of the Act.
To put it differently the section expects the tenant to make the deposit within one month from 15th July, 1972.
This may not be possible unless the Act is to apply to the building forthwith.
Of course the benefit of an extended date is given to those cases where the knowledge about the pendency of the proceedings is gained after 15th July, 1972.
For example where a suit is actually filed before the commence ment of the Act but the summons of the suit is served in October 1972, the tenant would be entitled to make the deposit within one month from the service of the summons to avail of the benefit of this provision.
So also it can apply to cases where the tenant had died before the Act came into force or before the expiry of one month from the date of commencement of the Act and the landlord took time to bring the legal representative on record; in which case the legal representative would be entitled to seek the benefit from the date of knowledge.
Of course this benefit would not be available where the tenant dies after the expiry of the period within which the right is to be exercised.
The same would be the case in the case of an appeal or revision application.
It seems to us that the legislature intended to give the benefit of Sections 39 and 40 to suits, appeals or revisions which were pending on 15th July, 1972 and in which the deposit came to be made within one month from that date.
The expression such preceding the word 'commencement ' is clearly suggestive of the fact that it has reference to the date of commencement of the Act and the payment must be made within one month from such commencement.
Unless we give such a restricted meaning to the section we would not be able to advance the legislative intent to relieve the landlords of new buildings from the rigours of the Act.
This interpreta tion is also in tune with the ratio in Ram Swaroop Rai 's case (supra).
201 was argued that the words 'commencement of this Act ' should be construed to mean the date on which the moratorium period expired and the Act became applicable to the demised buildings.
Such a view would require this Court to give different meanings to the same expression appearing at two places in the same section.
The words 'on the date of com mencement of this Act ' in relation to the pendency of the suit would mean 15th July, 1972 as held in Om Prakash Gupta (supra) but the words 'from such date of commencement ' appearing immediately thereafter in relation to the deposit to be made would have to be construed as the date of actual application of the act at a date subsequent to 15th July, 1972.
Ordinarily the rule of construction is that the same expression where it appears more than once in the same statute, more so in the same provision, must receive the same meaning unless the context suggests otherwise Besides, such an interpretation would render the use of prefix 'such ' before the word 'commencement ' redundant.
Thirdly such an interpretation would run counter to the view taken by this Court in Atma Ram Mittal 's case (supra) wherein it was head that no man can be made to suffer because of the court 's fault or court 's delay in the disposal of the suit.
To put it differently if the suit could be disposed of within the period of ten years, the tenant would not be entitled to the protection of Section 39 but if the suit is prolonged beyond ten years the tenant would be entitled to such protection.
Such an interpretation would encourage the tenant to pro tract the litigation and if he succeeds in delaying the disposal of the suit till the expiry of ten years he would secure the benefit of Section 39, otherwise not.
We are, therefore, of the opinion that it is not possible to uphold the argument.
In the above view of the matter we are of the opinion that the courts below committed an error in giving the benefit of Section 39 of the Act to the tenant since admit tedly the tenant could not and had not made the deposit within one month from the date of commencement of the Act on 15th July, 1972 but had made the deposit within a month after the moratorium period expired in 1977.
As stated above the legislature intended to limit the application of Sec tions 39 and 40 of the Act to cases where the Act became applicable immediately and the deposit could be made within one month from its applicability and not to cases where the moratorium period was to expire long thereafter.
For the reasons stated above we think the courts below were wrong in the view they took.
We, therefore, set aside the judgment and decree of the courts below by allowing this appeal.
Having regard 202 to the fact that the respondent will have to look for alter native accommodation we give him a year 's time to vacate on condition that he pays all the arrears of rent and damages, if due, within one month and files an undertaking in the usual form within even time.
In the circumstances of the case we think the parties may be left to bear their own costs.
R.S.S. appeal allowed.

summary:
On the completion of construction of the demised prem ises in 1967, the appellant landlord had let it out to the respondent tenant in the same year.
Later, on 27th May, 1972 the landlord filed the eviction suit against the tenant.
On 15th July, 1972 the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act.
1972 came into force.
The tenant deposited in the Court on 2nd September, 1977 an amount of Rs.4005 being the arrears of rent inclusive of interest and cost.
This payment was made within one month after the expiry of the period of ten years stipulated in section 2(2) of the Act to take advantage of section 39 of the Act.
Section 2(2) inter alia provided that nothing in the Act shall apply to a building for a period of ten years from the date on which its construction was completed, while section 39 dealt with pending suits for eviction relating to building brought under the regulation for the first time.
The Trial Court gave the benefit of section 39 and refused to order ejectment of the tenant.
The landlord 's revision application was rejected by the Additional District Judge, and his further revision was dismissed by the High Court.
Allowing the appeal, this Court.
, HELD: (1) In order to secure the benefit of Section 39 or 40 it must be shown that the suit, appeal or revision was pending on the date of commencement of the Act.
Secondly, if the suit is rounded on the allegation of non payment of rent, the tenant must, within one month from the date of commencement of the Act or from the date of knowledge of the pendency of the suit, deposit in court the entire amount of rent and damages for use and occupation of the building with interest as prescribed and landlord 's entire cost of the suit, to take the benefit of 187 the said provision.
If both these conditions are satisfied, the law, section 39, mandates that no decree for eviction shall be passed except on any of the grounds specified in the proviso to sub section (1) or clauses (b) to (g) of sub section (2) of section 20 of the Act.
Similarly, section 40 lays down that if an appeal or revision (arising out of a suit for eviction of a tenant from any building to which the old Act does not apply) is pending on the date of commence ment of the Act, the benefit of section 39 will be available to the tenant.
[199B E] The legislature intended to give the benefit of sec tions 39 and 40 to suit, appeals or revisions which were pending on 15th July, 1972 and in which the deposit came to be made within one month from that date.
The expression 'such ' preceding the word 'commencement ' is clearly sugges tive of the fact that it has reference to the date of com mencement of the Act and the payment must be made within one month from such commencement.
unless such a restricted meaning to the section is given, it would not be able to advance the legislative intent to relieve the landlords of new buildings from the rigours of the Act.
[200F H] (3) The Legislature desired to limit the scope of the application of sections 39 and 40 to suits, appeals and revisions pending on the date of commencement of the Act, i.e., 15th July, 1972, relating to buildings to which the old Act did not apply and to which the new Act was to apply forthwith and not at a later date.
This is clear from the fact that the section contemplates deposit of arrears to rent and damages together with interest and cost within one month from 'such date of commencement ' meaning the date of commencement of the Act.
[200B C] R.D. Ram Nath & Co. & Anr.
vs Girdhari Lal & Anr., ; Ram Swaroop Rai vs Lilavathi, ; 3 SCC 452; Om Prakash Gupta etc.
vs Dig Vijen drapal Gupta etc.
; , ; Vineet Kumar vs Mangal Sain Wadhera, ; ; Pasupuleti Venkateswarlu vs Motor and General Traders, ; A.K. Gupta & Sons vs Damodar Valley Corporation, [1966] I SCR 796; Nand Kishore Marwah vs Samundri Devi, ; and Atma Ram Mittal vs Ishwar Singh Punia, ; , referred to.
(4) The Courts below committed an error in giving the benefit of section 39 of the Act to the tenant since admit tedly the tenant could not and had not made the deposit within one month from the date of commencement of the Act on 15th July, 1972 but had made the deposit 188 SUPREME COURT REPORTS [1990] 1 S.C.R. within a month after the moratorium period expired in 1977.
[201F]