judgement:
ivil Misc.
Petition No. 28356 of 1986.
IN CIVIL APPEAL No. 5579 of 1983.
From the Judgment and Order dated 22.4.1983 of the Andhra Pradesh High Court in Civil Rev. Petn.
No. 2626 of 1982.
Dr. Shanker Ghose and P.P. Singh for the Appellant.
section Markandeya and C. Markandeya for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an application filed by the Hindustan Steelworks Construction Company Limited for filing the award of the Umpire appointed by this Court, Shri Justice Jaganmohan Reddy, retired Judge of this Court and for passing a decree in terms of the said award.
It appears that there was an agreement between Shri Rajasekhar Rao, the contractor and the Hindustan Steelworks Construction Limit ed, petitioner, in respect of certain works.
Differences and disputes arose, and there were proceedings before the arbi trator named in the Agreement and there were certain pro ceedings, the detail of which is not necessary to refer.
As the arbitrators could not agree, there were differences.
This Court by an order dated 16th of June, 1983 directed that arbitrators appointed by each of the parties be ap pointed arbitrator to adjudicate upon the dispute between the parties.
It was stipulated therein that in the said order of this Court dated 16th of June, 1983, it would be no longer open to the party to question the validity of the appointment of the arbitrators.
In the event of any disa greement between the two arbitrators, Shri Jaganmohan Reddy, a former Judge of this Court was directed to act as the Umpire.
Further consequential directions were also given.
Thereafter the parties appeared before the arbitrators and referred the matter to the umpire.
The Umpire after consid eration has made the award dated 15th of July, 1985 which has been filed in this 656 Court and the petitioner seeks a decree in terms of the award.
The respondent contractor, Shri Rajasekhar Rao ob jects to the award being made a rule of the Court.
He states in his objections that the umpire had made a speaking award, therefore according to his counsel the validity or otherwise of the said award was justifiable in a court of law.
He, however, firstly contends that the award was made beyond time.
He further contends that the umpire had no jurisdiction to proceed with the arbitration on or about 18th of December, 1984 as the period of two months from the date of his entering upon the reference viz, October 20, 1984 had expired on December 18, 1984.
According to the said objections, the umpire became functus officio.
It was con tended that the power to extend the period of passing the award was vested in the court alone under section 28 of the and it was not permissible for the parties to extend the time.
We are unable to accept this position.
Mr. Markendeya drew our attention to certain observations of this Court in the case of State of Punjab vs Sri Hardyal, ; He relied on the observations of the Court at page 656 and emphasised that law precludes parties from extending time after the matter had been referred to the arbitrator, it would be contradiction in terms to hold that the same result could be brought about by the conduct of the parties.
These observations, in our opinion, are out of the context.
The policy of law is that the arbitration proceedings should not be unduly prolonged.
The arbitrator therefore has to give the award within the time prescribed or such extended time as the court concerned may in its discretion extend and the court alone has been given the power to extend time for giving the award.
The court has got the power to extend time even after the award has been given or after the expiry of the period prescribed for the award.
But the court has to exercise its discretion in a judicial manner.
In that case this Court found that the High Court was justified in taking the view that it did.
This power, however, could be exercised even by the appellate court.
In view of the policy of law that the arbitration proceedings should not be unduly prolonged and in view of the fact that the parties have been taking willing part in the proceedings before the arbitrator without a demur and had all along been willing to extend time, this will be a fit case, in our opinion, for the extension of time.
We accordingly extend the time for giving the award and the award will be deemed to have been given in time.
In this case, it appears that under section 28 and in the light of section 3 of the First Schedule the parties are allowed to extend the time.
In this connection reference may be made to H.K. Wattal vs V.N. Pandya; , , where this Court 657 reiterated that sub section (2) of section 28 indicated one exception to the above rule that the arbitrator could not enlarge the time, and that was when the parties agreed to such an enlargement.
It is clear this Court reiterated that the arbitrator gets the jurisdiction to enlarge the time for making the award only in a case where after entering on the arbitration the parties to the arbitration agreement consent to such enlargement of time.
In this case precisely it happened.
Furthermore the parties have proceeded before the umpire on that basis which is just and proper and further more the time should be extended as was done in the case of State of Punjab vs Sri Hardyal, (supra).
In the aforesaid view of the matter we are unable to accept the submission on behalf of Shri Markendeya that the award of the umpire was beyond time.
It was next contended that the award contained error of law on the face of the award and there were inconsistent findings.
It has to be borne in mind that it was only in a speaking award that the court could look into the reasoning of the award.
In the case of Jivarajbhai Ujamshi Sheth and others vs Chintamanrao Balaji and others, [1964] 5 S.C.R. 480, this Court observed that an award might be set aside by the court on the ground of error on the face of the award, but an award was not invalid merely because by a process of inference and argument it might be demonstrated that the arbitrator had committed some mistake in arriving at his conclusion.
The law on this point is well settled.
The Judicial Committee in Chempsey Bhara and Company vs Jivraj Balloo Spinning and Weaving Company Ltd. L.R. 50 I.A. 324 clarified that an error of law on the face of the award means, that one could find in the award or a document actu ally incorporated thereto, as for instance a note appended by the "arbitrator stating the reasons for his judgment, some legal proposition which is the basis of the award and which one could then say was erroneous.
It did not mean that if in narrating a reference was made to a contention of one party, that opened the door to seeing first what that con tention was, and then going to the contract on which the parties ' rights depended to see if that contention was sound".
It has been further reiterated by this Court in the aforesaid decision relying on Chempsey Bhara and Company 's case (supra) that in dealing with an application to set aside an award the court had not to consider whether the view of the arbitratorr on the evidence was justified.
The arbitrator 's adjudication was generally considered binding between the parties, for he was the tribunal selected by the parties and the power of the Court to set aside the award was restricted to cases set out in section 30 of the Arbi tration Act.
It is not open to the court to speculate, where no reasons are 658 given by the arbitrator, as to what impelled the arbitrator to arrive at his conclusion.
It is not open to the Court to attempt to probe the mental process by which the arbitrator had reached his conclusion where it is not disclosed by the terms of his award.
In this case this is not a speaking award.
The learned Umpire has not spoken his mind indicating why he has done, what he has done, he has narrated only how he came to make the award.
Counsel drew our attention to page 26 of the award where different items have been set out and referred to page 30 of the award where the arbitrator noted as under: "The Respondent demurs to this and its officers have denied having received them in their affidavits and in their oral testimo ny.
No officer of the Post Office from which the letter was sent by Registered Post or of the Post Office through which delivery of that Registered letter was effected to the address ee has been summoned to establish that these letters did not emanate from their Post Of fices or that the Post Office seals affixed on the "Certificates of Posting" and "Postal Acknowledgements" were not of those Post Offices which delivered them to HSCL or that they were forged or fraudulent, nor was any thing produced to show that these were not posted or registered from the Post Offices from which they emanated".
Counsel further drew our attention to the statement at page 33 of the award about the losses.
Mr. Markandeya con tended that these were the reasons given by the learned umpire.
We are unable to accept.
What the learned umpire did in the aforesaid paragraphs was to narrate the facts and state the history and state of pleadings.
The umpire in the operative part of the award observed as under: "WHEREAS I perused and considered the entire record with great care including the record of affidavits, the oral evidence ten dered before me, the statement of claim dated 12.10.1983; the counter statements dated 27/31 101983 and the Rejoinder of the claimant and considered the documents filed in support of the case of the respective parties as also the written and oral submissions made before me by counsel for the parties in support of their respective cases of the parties for which they have 659 appeared; and having duly considered the dispute in its varied aspects placed before me by the parties and in the light of the entire material in the case as above narrated.
I.P.JAGANMOHAN REDDY, the Umpire, nominated by the Supreme Court of India as aforesaid, and having jurisdiction to adjudi cate the dispute between the parties in the claims and counter claims relating to Work Orders Nos. 3, 4, 5, 6 and 8 concerning the Glass Factory and Works Orders Nos. 9 and 10 concerning Lamp Factory and the contention of the claimant and the respondent in respect of the said Claims and counter claims.
(1) I DO HEREBY MAKE MY AWARD, order and direct that the Respondent do pay to the claimant a sum of Rs.31,740 30p.
(Rupees thirty one thousand seven hundred and forty and thirty paise) only in full satisfaction of its liability for the claim made by the Claim ant Contractor against the Respondent with interest at the rate of six per cent per annum from the date of Award.
(2) I further award and direct that the counter claims made by the respondent do stand dismissed.
(3) I further award and direct that the parties do bear their respective costs incidental to these proceedings.
(4) I further direct that the amounts paid by the parties towards the heating fees etc., from time to time in respect of the several heatings of these arbitration proceed ings and the amount in deposit be appropriated and has/ have accordingly been appropriated towards the remuneration of the Umpire".
Therefore, in his award as a whole no reasons have been given for the purpose of making the award.
In other words, it is not a speaking award at all.
The Award did not speak as to why the umpire has awarded as he did.
It does not speak the mind of the umpire.
It mentions the events leading to the making of the award.
In the award, there is no legal proposition which is unsustainable or improper.
In that view of the matter the challenge to the award cannot be accepted.
660 In the premises, the objections are rejected.
There will be decree in terms of the award of the Umpire, Shri P. Jaganmohan Reddy.
There will be interest on the judgment at 9% until realisation.
The applicant will have the costs of this application.
N.P.V. Award Confirmed.

dataset_name: IN-Abs

summary:
There was an Agreement between the respondent contractor and the appellant construction company in respect of certain works.
Differences and disputes arose and there were pro ceedings before the arbitrators named in the Agreement.
As the arbitrators could not agree and there were differences, this Court by an Order dated 16th June, 1983 directed that the arbitrators appointed by each of the parties be appoint ed arbitrators and if there was disagreement between the arbitrators, the matter was to be referred to the Umpire.
In pursuance of the said directions the parties appeared before the arbitrators who referred the matter to the Umpire and the Umpire after consideration made an award dated 15th July, 1985.
The petitioner construction company made a petition to this Court for a decree in terms of the award, which was opposed by the respondent contractor contending that (a) the Umpire had made a speaking award and that the validity or otherwise of the said award was justifiable in a Court of law, (b) that the Umpire had no jurisdiction to proceed with the arbitration on or about 18th December, 1984 as the period of two months from the date of his entering upon the reference had expired and consequently the award was beyond time, and (c) that the award contained error of law on the face of the award and there were inconsistent findings.
The Court while confirming the award, HELD: 1.1 The policy of law is that arbitration proceed ings should not be unduly prolonged.
The arbitrator, there fore, has to give the award within the time prescribed, or such extended time as the 654 court concerned may in its discretion extend, and the Court alone had been given the power to extend the time for giving the award.
[656E] 1.2 The Court has got power to extend time even after the award has been given or after the expiry of the period prescribed for the award.
But the court has to exercise its discretion in a judicial manner.
This power could be exer cised even by the appellate court.
[656F] 1.3 The arbitrator gets the jurisdiction to enlarge the time for making the award only in a case where after enter ing on the arbitration, the parties to the arbitration agreement consent to such enlargement of time.
[657B] In the instant case, in view of the policy of law that the arbitration proceedings should not be unduly prolonged and in view of the fact that the parties have been taking willing part in the proceedings before the arbitrator with out a demur and had all along been willing to extend time, this will be a fit case for the extension of time, and the time for giving the award is accordingly extended and the award will be deemed to have been given in time.
[656F G] 2.1 An award might be set aside by the court on the ground of error on the face of the award, but an award is not invalid merely because by a process of inference and argument, it might be demonstrated that the arbitrator had committed some mistake in arriving at his conclusion.
[657D] Jivarajbhai Ujamshi Sheth and others vs Chintamanrao Balaji and others; , , followed.
2.2 Only in a speaking award the Court could took into the reasoning of the award.
It is not open to the Court to speculate, where no reasons are given by the arbitrator, as to what impelled him to arrive at his conclusion.
It is also not open to the Court to attempt to probe the mental process by which the arbitrator had reached his conclusion where it is not disclosed by the terms of his award.
[657D, H, 658A] The instant case is not one of a speaking award.
The Umpire had not spoken his mind indicating why he has done, what he has done, he has narrated only how he came to make the award.
No reasons have been given for the purpose of making the award.
There is no legal proposition in the award which is unsustainable or improper.
The challenge to the award cannot, therefore, be accepted.
[659G H] 655 State of Punjab vs Sri Hardyal, ; ; H.K. Wattal vs V.N. Pandya, ; and Chempsay Bhara and Company vs Jivraj Balloo Spinning and Weaving Company Ltd., L.R. 50 I.A. 324, referred to.


judgement:
Civil Appeal No. 10043 of 1983.
From the Judgment and Order dated 7.5.1982 of the Cal cutta High Court in Appellate Decree T.No.
673 of 1982.
A.K. Ganguli, B.S. Chauhan, S.C. Ghosh and T. Sridharan for the Appellant.
Gobind Mukhoty, Arvind Minocha and Mrs. Veena Minocha for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an appeal by special leave from the judgment and order of the High Court of Calcutta dated the 7th May, 1982 dismissing the second appeal and passing a decree for eviction.
The High Court refused to interfere with the concurrent findings of facts, inter alia, on sub letting.
The main question here in this appeal is whether in fact there was any sub letting.
The respondent is the owner of the premises No. P 71, C.I.T. Road, Scheme No. (iv) M, Calcutta and the appellant was a tenant at a monthly rent of Rs.200 plus service charge Rs.50 according to English Calendar Month.
It is alleged that the appellant was in arrear of rent for long time.
For the purpose of this appeal as the decree was not passed on the ground of default it is not necessary to go into detail regarding the correctness of that allegation.
The ground on which the suit proceeded and which resulted in this appeal is whether the delendant had sublet or parted with the possession of two rooms out of four to Lalit Mohan Biswas and he has established tailoring business there.
Therefore, sub letting without the written consent of the landlord either the whole or part of the building in violation of section 683 13(1)(a) of West Bengal Premises Act, 1956 (hereinafter called the 'Rent Act ') and user for non residential purpose of tailoring the premises let out for residential purposes, in violation of section 13(1)(h) of the Rent Act are two offences alleged against the tenant.
There was one Mritunjoy Mukherjee who opened a Music School there for more than four months prior thereto without the written consent of the landlord.
Mr. Mritunjoy Mukherjee is no longer in the pic ture and his case was not pressed any further.
The main contention was whether the premises in question was sub let to Lalit Mohan Biswas who had established some tailoring business or not.
There was evidence before the learned trial court and it is material in view of the con tentions urged on the question of sub letting to set out the same, of the plaintiff, the respondent herein who gave evidence and stated as under: "I am the owner of the suit property.
The defendant is a tenant at a monthly rental of Rs.250 payable according to English Calendar Month.
The defendant is a defaulter since July, 1977.
The defendant sub let one room to Lalit Mohan Biswas in December, 1976.
The sub tenant has established tailoring business there.
Customers visit his tailoring shop.
Another room was sub let to Mritunjoy Mukher jee, who opened a Music School there.
" It was further stated that notice had been given for terminating the tenancy.
It was further stated in the evidence as under: "My wife Lilabati Chakraborty is the owner of the suit property.
I do not know how much rent is collected by the defendant from the sub tenants.
I am not aware of the profits made by the sub tenant.
The defendants pay sum of.
Rs.200 plus Rs. 50 as service charge.
The defendant paid the arrear rents by instal ments.
I am at present receiving rents from the defendant.
It is not a fact that Lalit Mohan Biswas is not a sub tenant and trades on behalf of the defendant.
" It appears that a suggestion was made that Lalit Mohan Biswas was not a sub tenant, which was denied by the wit ness.
There was however no suggestion that Lalit Mohan Biswas was in exclusive possession of any part of the prem ises in question.
Sree Lalit Mohan Biswas did not give evidence in the witness box.
684 There was also evidence that a sewing machine was used by Lalit Mohan Biswas, who owned the machine was not clear.
From this evidence as above the learned trial judge came to the conclusion that there was evidence of a sewing machine being used.
The learned judge also came to the conclusion that Lalit Mohan Biswas was,occupying the suit premises for tailoring business and he further came to the conclusion that it was for defendant to establish that Lalit Mohan Biswas had not been inducted as a sub tenant the moment his physical presence in the house was proved.
According to learned trial judge the character and the conduct of the tenant suggested that he had sub let portion of the premises and it is for the tenant to prove that he had given shelter to a helpless man.
It was further in evidence that Lalit Mohan Biswas was doing some sewing work for the tenant and he was also doing some independent works for others and it did come out in the evidence that he used to take meals with the tenant.
The evidence of the tenant was that Lalit Mohan Biswas was allowed to occupy part of the premises due to pity and charity and further he was sewing in the house without any rent.
He did some work for the tenant and his family members and for others.
On this evidence the learned trial judge, in the absence of the evidence of Lalit Mohan Biswas, drew the inference that there was sub tenancy in favour of Lalit Biswas.
There was an appeal to the Addition al District Judge, Alipore and he discussed the evidence and upheld the said finding.
There was a further appeal before the High Court and the High Court also did not interfere with the findings of the Courts below.
In the premises the question arises whether the High Court was right in law.
It is true that in second appeal no court, and in the instant case the High Court should not interfere with the concurrent findings of facts.
It was rightly pointed out and it is well settled law by this Court not to interfere with the concurrent findings of facts.
This was reiterated by this Court in Smt.
Krishnawati vs Shri Hans Raj, ; where this Court observed that on the concurrent finding of the fact where no question of law arises, the High Court should not interfere.
It was further high lighted before us that the question of sub tenancy in a situation like the present, is an inference drawn from a certain conduct.
But in order to prove tenancy or sub tenancy two ingredients had to be established, first ly the tenant must have exclusive right of possession or interest in the premises or part of the premises in question and secondly that right must be in lieu of payment of some compensation or rent.
In Associated Hotels of India Ltd. Delhi vs S.B. Sardar Ranjit Singh, ; this Court reiterated that on the question whether the occupier of a separate apartment in a 685 premises was a licensee or a tenant, the test was whether the landlord had retained control over the apartment.
Nor mally an occupier of an apartment in a hotel was in the position of licensee as the hotel keeper retains the general control of the hotel including the apartment.
But it is not a necessary inference of law that the occupier of an apart ment in a hotel is a tenant.
A hotel keeper may run a first class hotel without sub letting any part of it.
Where the hotel keeper retained no control over the apartment, the occupier was in the position of a tenant.
The question in this case is whether the alleged sub tenant was in exclusive possession of the part of the prem ises and whether the tenant had retained no control over that part of the premises.
There is no evidence on the fact that the alleged sub tenant was in exclusive occupation of any part of the premises over which the tenant had not retained any control at all.
On this aspect neither was there any pleading nor any evidence at all.
No court gave any finding on this aspect at all.
In that view of the matter one essential ingredient necessary for a finding, the case of sub tenancy has not been proved.
If that is so, the trial court, the first appellate court and the High Court were in error in holding that the sub tenancy was proved.
Our attention is drawn to this Court 's decision in Sachindra Nath Shah vs Santosh Kumar Bhattacharya, A.I.R. where paying guests were occupying a portion of the premises, this Court reiterated that finding of fact regarding those persons would not be interfered with.
But where the finding has been arrived at without finding the basic facts, it cannot be sustained.
There is another aspect of the matter, i.e., the payment of rent for sub tenancy or consideration for sub tenancy.
Undoubtedly the alleged sub tenant rendered certain services to the tenant but can the same be considered as rent under the Rent Act? Section 14(1) of the said Act prohibits sub tenancy and it was pointed out before us that receipt of service in lieu of the occupation of a part of the premises as a Iicensee did not amount to payment or receipt of rent.
Sub tenancy as such is not defined in the Act.
The sub tenancy under the is governed by section 105 of the said Act and it defines sub leases as a lease of immovable property as a transfer of right to enjoy such property, made for a certain time, express or implied.
or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
686 There is no clear evidence in the instant case as to what kind of sewing Lalit Mohan Biswas used to perform for the tenant, on the other hand, he did perform some work which could be considered to be in lieu of his right to occupy the portion of the premises, if so this may be sub lease in terms of section 105 of the .
But is it in lieu of consideration as contemplated under the Rent Act.
The question is, whether in the context of the provisions of Rent Act, can services be consideration for sub tenancy? In other words whether in view of the provisions of the Rent Act services can be a good or any consideration for sub lease is the question.
We are of the opinion that it cannot be.
See in this connection section 4 of the Rent Act, and the different sub sections of that section, section 5, especially section 5(b).
These enjoin that excess over fair rent to be irrecoverable, put restric tion on claim, demand or receipt of premium or other consid eration.
Section 8 is also relevant in this connection, see also section 9.
Sections 2(h) and 2(d) also indicate money consideration.
Section 13(j) and section 13(i) cannot be anything but money.
Section 17(1) and section 17(2) and 17B also militate against the concept that services in lieu of money can be consideration.
It is however not possible to accept that services in lieu of the right of occupation would amount to receipt of rent under the Rent Act to create sub tenancy.
This frustrates and defeats the purpose of the Rent Act.
Take for instance a case where a person renders services to the landlord in lieu of rent but this will completely erode the provisions of Rent Act and defeat the claims for services.
Work performed by sub tenants and the wages paid by doing certain kind of services may be in lieu of rent as in the case of Agricultural Tenancies.
But in urban area in civilized time that cannot be so.
The Rent Act, 1956 cannot be fitted into a position where the serv ices can be rendered in exchange of the right of occupation.
This question arose in England in the case of Barnes & Another vs Barratt and another.
, There the defendants occupied part of the house which was let to C.
The defendants had exclusive use of three rooms and a kitchen while C had similar use of two rooms.
The bathroom was shared.
In return for their use of the above mentioned accommodation the defendants cleaned part of the house, cooked for him and paid electricity, gas and fuel bills for the whole of the house.
On more than one occasion C refused to accept any payment of rent.
The arrangement continued from 1951 until C 's death in February, 1969.
The interests of C were then surrendered to the plaintiffs who were the landlords.
The plaintiffs claimed possession of the whole house.
The county court judge ruled that the defend ants were tenants within the protection of the Rent Acts, and were not licensees, since the services rendered by defendants, according to the 687 county court judge constituted rent.
The court of appeal in England held that the defendants were granted personal privilege of occupation and not tenancy.
It was further held that even if there was a tenancy, the Rent Acts did not apply to it, because there was no agreed monetary quantifi cation of the rent nor any agreed method of quantification.
Sachs LJ.
observed at page 484 of the report as follows: "That the rendering of services can constitute rent at common law is well settled but whether it can, when there has been no quantification of their value, constitute rent under the Rent Acts is a different question.
It was answered 45 years ago in Hornsby vs Maynard, , by a Divisional Court particularly experienced in dealing with the manifold problems then regularly being raised by the Increase of Rent and Mortgage Interest (Re strictions) Act 1920, the Act from which so much of the later rent legislation is derived.
" The Lord Justice further observed at page 485 as follows: "However, if one turns to look at the struc ture of the Rent Acts as a whole, it is equal ly clear that their provisions with regard to rent restriction can only, in practice, be operated if that interpretation is correct.
The effective basis of the restrictions turns on there being quantified sums to which the provisions of the Acts can apply.
" The structure of the Rent Act in the instant case, as indicated above would also indicate that.
We hold therefore that second ingredient, rent agreed was not there.
And as such on the case pleaded and proved there could not have been any sub tenancy.
It is true that normally this Court is too reluctant to interfere with the concurrent findings of fact.
But if the essential ingredients necessary for finding of a fact have not in fact been found by the Courts below then this Court is bound to examine the question where injustice or wrong is done.
In M/s Variety Emporium vs V.R.M. Mohd. Ibrahim Naina, ; Chandrachud, C.J. observed that con current findings of lower courts have relevance on the question whether Supreme Court should exercise its jurisdic tion under Article 136 of the Constitution to review a particular decision.
That jurisdiction has to be exercised sparingly.
But, that cannot mean that injustice must be perpetuated because it has been done.
two or three 688 times in a case.
The burden of showing that a concurrent decision of two or more courts or Tribunals is manifestly unjust lies on the appellant.
But once that burden is dis charged, it is not only the right but the duty of the Su preme Court to remedy the injustice.
As there is no finding of exclusive possession nor of any payment of money in exchange of the user of part of the premises the finding of subletting cannot in law be upheld.
As the sewing machine in question was used as a part of the apparatus of the appellant in the facts of this case it could not be said to have been used separately or independ ently and cannot constitute a change of user as defined in section 13(1)(h) of the Rent Act.
We are unable to sustain the findings of the High Court and the courts below on the basis of the pleadings and evidence.
The appeal is, therefore, allowed.
The judgment and order of the High Court and the Courts below are set aside and the claim for ejectment is dismissed.
But the justice of the case demands increase of rent.
The appellant has been in occupation of the premises in question since 1972 at a monthly rent of Rs.250 per month.
In the present standard this is wholly inadequate for the premises in question, we direct that the appellant shall go on paying at least Rs.350 per month from 1.8.87.
If the standard rent is more than Rs.350 then the respondent will be at liberty to make any application for increasing the rent before the appropriate authority.
Arrears, if any, must be paid by 31.8.87.
There will be, however, no order as to costs.
This Court records its appreciation to Sree Amul Gan guly, learned counsel for the appellant and Sree Gobind Mukhoty, learned counsel for the respondent for the valuable assistance rendered to this Court.
N.P.V. Appeal allowed.

summary:
The landlord respondent filed a suit against the appel lant tenant for contravention of Section 13(1)(a) of West Bengal Premises Act, 1956 for sub letting without his writ ten consent by parting with the possession of two rooms out of the four rooms of the premises in question to the sub tenant who had established a tailoring business therein.
The trial court held that there was evidence of a sewing machine being used, that the sub tenant was occupying the suit premises for tailoring business, and that it was for the tenant to establish that the sub tenant had not been induct ed as a sub tenant and that he had given shelter to a help less man.
In the absence of the evidence of the sub tenant, the trial court drew the inference that there was sub tenan cy.
The first appellate court upheld the finding of the trial court, and the High Court, in appeal, did not inter fere with the findings of the courts below.
In the appeal before this Court, it was contended that the question of sub tenancy in a situation like the present case is an inference to be drawn from a certain conduct, and that the question was whether the sub tenant was in exclu sive possession of the part of the premises or whether the tenant had retained no control or that part of the premises.
681 Allowing the appeal, this Court, HELD: 1.
In order to prove tenancy or sub tenancy, two ingredients had to be established, firstly, the tenant must have exclusive right of possession or interest in the prem ises or part of the premises in question and secondly, that right must be in lieu of payment of some compensation or rent.
[684G] 2.1 In view of the provisions of Rent Act, services cannot be consideration for sub lease.
[686B] 2.2 Services in lieu of the right of occupation would not amount to receipt of rent under the Rent Act to create sub tenancy.
Work performed by sub tenants and the wages paid by doing certain kind of services may be in lieu of rent as in the case of Agricultural Tenancies.
But in urban area in civilised time that cannot be so.
The Rent Act, 1956 cannot be fitted into a position where the services can be rendered in exchange of the right of occupation.
[687D, E] 3.
In the second appeal, no court should interfere with the concurrent findings of fact.
[684F] Normally, this court is too reluctant to interfere with the concurrent findings of fact.
But if the essential ingre dients necessary for finding of a fact have not in fact been found by the courts below then this court is bound to exam ine the question where injustice or wrong is done.
That jurisdiction has to be exercised sparingly but, that cannot mean that injustice must be perpetuated because it has been done two or three times in a case.
The burden of showing that a concurrent decision of two or more courts or tribu nals is manifestly unjust lies on the appellant but once that burden is discharged, it is not only the right but the duty of the Supreme Court to remedy the injustice.
[687F, 688A] In the instant case, as there is no finding of exclusive possession nor of any payment of money in exchange of the user of the part of the premises the finding of subletting cannot in law be upheld.
As the sewing machine in question was used as a part of the apparatus of the appellant in the facts of this case it could not be said to have been used separately or independently and cannot constitute a change of user as defined in Section 13(1)(h) of the Rent Act.
[688B C] [Justice of the case demands increase of rent.
The appellant has been in occupation since 1972 at a monthly rent of Rs.250.
By present 682 standards, this is wholly inadequate.
The appellant shall pay at least Rs.350 per month from 1st August, 87.
If the standard rent is more, then the respondent will be at liber ty to apply for increasing the rent.
[688D] Smt.
Krishnawati vs Shri Hans Raj, ; ; Associated Hotels of India Ltd. Delhi vs S.B. Sardar Ranjit Singh, ; ; Sachindra Nath Shah vs Santosh Kumar Bhattacharya, A.I.R. 1987 SC 409; Barnes & Another vs Barratt and another, and M/s Variety Emporium vs V.R.M. Mohd. Ibrahim Naina, A.I.R. 1985, SC.
207, referred to.


judgement:
ivil Appeal No. 2047 of 1982.
690 From the Judgment and Order dated 16.3.
1982 of the Delhi High Court in Civil Rev. No. 147 of 1982.
W.A. Quadri and Kailash Mehta for the Appellant.
M.C. Dhingra for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an appeal by special leave against the judgment and order dated the 16th March, 1982 of the High Court of Delhi in Civil Revision No. 147 of 1982 directing eviction of the premises in question under Section 14(1)(e) of the Delhi Rent Control Act on the ground of bonafide requirement of the landlord.
The special leave was sought for and obtained from this Court on the ground that Civil Appeal No. 1051/81 and special leave petition (civil) No. 2290/82 were pending at that time.
It appears that the said appeal has been disposed of by this Court in Ravi Dutt Sharma vs Ratan Lal Bhargava, ; where this Court held that Sections 14A, 14(e), 25A, 25B and 25C of the Delhi Rent Control Act are special provisions so far as the landlord and tenant are concerned and further in view of the non obstante clause in the section these provi sions override the existing law so far as the new procedure is concerned.
In that view of the matter we are of the opinion that the would have no application in cases covered by Sections 14A and 14(1)(e) of the Delhi Rent Control Act especially in view of the provisions which were added by the Amending Act of 1976.
This Court held that there is no difference either on principle or in law between section 14(1)(e) and 14A of the Rent Act even though these two provisions relate to eviction of tenants under different situations.
This Court further held that in view of the procedure in Chapter IIIA of the Rent Act, the Slum Act is rendered inapplicable to the extent of inconsistency and it is not, therefore, necessary for the landlord to obtain permission of the Competent Authority under Section 19(1)(a) of the Slum Act before instituting a suit for eviction and coming within Section 14(1)(e) or 14A of the Rent Act.
In the premises the appeal fails and is dismissed.
There will be no order as to costs.
691 The decree for eviction shall not be executed before 30.11.87 provided the appellant files an undertaking in the usual form within four weeks from today.
A.P.J. Appeal dismissed.

summary:
The Appellant was ordered to be evicted under section 14(1)(e) of the Delhi Rent Control Act, 1958 on the ground of bona fide requirement of the landlord.
Dismissing the Appeal, to this Court, HELD: 1.
Sections 14A, 14(e), 25A, 25B and 25C of the Delhi Rent Control Act, 1958, are special provisions so far as the landlord and tenant are concerned and further in view of the non obstante clause in the section these provisions over ride the existing law so far as the new procedure is concerned.
Therefore, the Slum Areas (Improvement and Clear ance) Act, 1956, would have no application in cases covered by sections 14A and 14(1)(e) of the Rent Act especially in view of the provisions which were added by the Amending Act of 1976.
[690D F] 2.
There is no difference either on principle or in law between section 14(1)(e) and 14A of the Rent Act even though these two provisions relate to eviction of tenants under different situations.
[690F] 3.
In view of the procedure in Chapter III A of the Rent Act, the Slum Act is rendered inapplicable to the extent of inconsistency and it is not necessary for the landlord to obtain permission of the Competent Authority under section 19(1)(a) of the Slum Act before instituting a suit for eviction and coming within section 14(1)(e) or 14A of the Rent Act.
[690G H]


judgement:
Civil Appeal Nos.
149 1 1501 of 1974.
From the Judgment and Order dated 21.12.1973 of the High Court of Delhi in C.W. Nos 954/71, 211 to 218 and 249 and 251 of 1972.
F.S. Nariman, U.S. Prasad, S.K. Mehta, M.K. Dua, S.M. Sarin, Aman Vachhar and R. Jagannath for the appellants.
Anil Dev Singh, Miss Halida Khatoon.
P. Parmeswaran for the Respondents.
The judgment of the Court was delivered by RANGANATH MISRA, J.
These appeals are by certificate under Article 132 and involve the determination of the amplitude contained and nature of the power conferred on the President by clause (c) of the second proviso of Article 311(2) of the Constitution.
18 policemen Sardari Lal and two others being Sub Inspectors and the remaining being either Head Constables or Constables of the Delhi Armed Police Force were dismissed from service by separate but similar orders dated 14th April, 1967, by way of punishment.
They challenged those orders before the Delhi High Court mainly contend 707 ing that the exercise of power under clause (c) of the second proviso to Article 311(2) was not upon President 's personal satisfaction and as there had been no inquiry as mandated by Article 311(2), the dismissals were bad.
The High Court did not accept the contention and rejected the writ petitions.
The dismissed policemen carried appeals to this Court and by judgment dated 2 1st January, 1971 in Sardari Lal vs Union of India & Ors., ; a Constitution Bench of this Court set aside the judgment of the High Court in each of the writ petitions and quashed the several orders of dismissal on the ground that each of them was illegal, ultra vires and void.
This Court held: "On the principles which have been enunciated by this Court, the function in clause (c) of the proviso to Article 311(2) cannot be dele gated by the President to any one else in the case of a civil servant of the Union.
In other words, he has to be satisfied personally that in the interest of the security of the State, it is not expedient to hold the inquiry pre scribed by clause (2).
In the first place, the general consensus has been that executive functions of the nature entrusted by the Articles, some of which have been mentioned before and in particular those Articles in which the President has to be satisfied him self about the existence of certain fact or state of affairs cannot be delegated by him to any one else.
Secondly even with regard to clause (c) of the proviso, there is a specific observation in the passage extracted above from the case of Jayantilal Amrit Lal Shodban [1964] 5 SCR 294 that the powers of the President under that provision cannot be delegated.
Thirdly, the dichotomy which has been specifically introduced between the authority mentioned in clause (b) and the President mentioned in clause (c) of the proviso cannot be without significance.
The Constitution makers apparently felt that a matter in which the interest of the security of the State had to be considered should receive the personal attention of the Presi dent or the head of the State and he should be himself satisfied that an inquiry under the substantive part of clause (2) of Article 311 was not expedient for the reasons stated in clause (c) of the proviso in the case of a particular servant." Following the judgment of this Court, the dismissed police men were reinstated in service with effect from 16th April, 1971.
On 5th of June, 1971, fresh orders of dismissal were served on these policemen again 708 invoking the power under clause (c) of the second proviso to Article 311(2) for dispensing with the inquiry.
One of the representative orders is extracted below: "Whereas you, Shri Sardari Lal, sub Inspector being No. D 331 (present No. D 1177) of Delhi Police, held your office during the pleasure of the President." "And whereas the President, after considering all the facts and circumstances of your case, is satisfied under sub clause (c) of the proviso to clause (2) of Article 311 of the Constitution, that in the interest of the security of the State it is not expedient to hold, in relation to you, such inquiry as is referred to in clause (2) of the said Article 311 of the Constitution." "Now, therefore, the President is pleased to dismiss you from service with immediate effect." Several writ applications were again flied before the High Court.
It was inter alia contended that the order of dismissal without an inquiry aS envisaged in Article 311(2) was vitiated as the power under sub clause (c) of the second proviso to Article 311(2) had not been made upon personal satisfaction of the President.
In the returns made to the Rule to two separate affida vits one by the Inspector General of Police and the other by a Joint Secretary to the Union Government in the Ministry of Home Affairs it was maintained that the President had personally considered all the facts and circumstances of each case and after having satisfied himself, passed the order that in the interest of the security of the State, it was not expedient to hold the inquiry.
The original orders of the President along with the connected papers were placed before the High Court and the High Court held: "The contention, therefore, that the President himself did not pass the impugned orders is rejected.
The question for decision then is whether the court can scrutinize and examine the facts and circumstances that led the President to arrive at the satisfaction that it was not expedient in the interest of the security of the State to hold the inquiry envisaged in Article ,311(2) against the petitioners, and if so, to what extent." 709 While examining this aspect of the matter, the High Court relied on the ratio of the decision of this Court in Sardari Lal 's case (supra) and examining the second aspect of the contention, the High Court held: "The result, therefore, is that the exercise of power by the President under clause (c) to the proviso to Article 311(2) is fully covered by clause (1) of Article 361 and the President is not answerable to any court for the exer cise and performance of his powers and duties under this clause of the proviso to Article 311 and no court has jurisdiction to examine the facts and circumstances that led to the satisfaction of the President envisaged in clause (c) except probably on the ground of mala fide.
" The plea of mala fides is based upon the alleged factual situation that the respective impugned orders had already been taken by the Government and the President simply en dorsed them was not entertained by the High Court and ulti mately each of the writ petitions was dismissed.
Mr. Nariman, learned counsel appearing on behalf of the appellants has advanced three contentions in support of these appeals: (1) the impugned order of dismissal in 1971 which is claimed to have been passed on the personal satisfaction of the President is vitiated in view of the rule in the case of Shamsher Singh & Anr.
vs State of Punjab, ; (2) appellants having been reinstated in service in terms of the judgment of this Court, without leave of the Court, no second order of dismissal on the same material could have been passed; and (3) the High Court was wrong in holding that the suffi ciency of satisfaction of the President was not justiciable.
The first aspect argued by Mr. Nariman is on the basis of the reversal of the view expressed by this Court in Sardari Lal 's case (supra) by a later larger Bench judgment of this Court.
The ratio in Sadari Lal 's case came to be considered in Shamsher Singh 's case (supra) by a seven Judge Bench.
Ray, CJ., who spoke for five members of the bench and with whom by a separate judgment, the remain ing two learned Judges agreed spoke thus: 710 "The decision in Sardari Lal 's case that the President has to be satisfied personally in exercise of executive power or function and that the functions of the President cannot be delegated is with respect not the correct statement of law and is against the estab lished and uniform view of this Court as embodied in several decisions to which refer ence has already been made.
These decisions are from the year 1955 up to the years 1971.
The decisions are Rai Saheb Ramjawaya Kapur vs State of Punjab, ; A. Sanjeevi Naidu vs State of Madras, ; and U.N.R. Rao vs Smt.
Indira Gandhi, These decisions neither re ferred to nor considered in Sardari Lal 's case." "The President as well as the Governor is the Constitutional or formal head.
The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion.
Whoever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or the Governor but the satisfaction of the President or Governor in the Constitution al sense in the cabinet system of Government, that is, satisfaction of his Council of Minis ters on whose aid and advice the President or the Governor generally exercise all his powers and functions.
The decision of any minister or officer under rules of business made under any of these two Articles 77(3) and 166(3) is the decision of the President or the Governor respectively.
These Articles did not provide for any delegation.
Therefore, the decision of Minister or Officer under the rules of busi ness is the decision of the President or the Governor.
" In their writ petitions, each of the appellants had contend ed before the High Court, following the ratio of Sadari Lal 's case which was then the law, that the President had not been personally satisfied before exercise of the power under the proviso to dispense with the inquiry and the respondents had taken pains to establish by pleading and producing the original records that the President had satis fied himself person 771 ally before be made the order dispensing with the inquiry.
To reduce the argument on this aspect and to have an exact impression of how the impugned orders were made, we directed learned counsel appearing for the Union of India to produce the original record and the same has been put before this Court.
It transpires therefrom that the papers were placed by the Ministry of Home Affairs for the consideration of the President by the Joint Secretary of the Union Territory of Delhi on 22nd of March, 1971, and were returned with a note of 20th of April, 1971, to the effect that the President would like to have the advice of the Council of Ministers in the matter.
A draft note for the Cabinet was prepared relat ing to the matter and as the record indicates it got through the Cabinet and the Prime Minister recorded her approval.
Thereafter, it was again placed before the President along with a note prepared on 25th May, 1971.
The note clearly indicated: "President 's Secretariat may kindly see their note extracted at pre page 7/n.
As desired by the President, the matter was placed before the Council of Ministers.
A copy of the Note submitted to the Cabinet may kindly be seen at flag 'H '.
The Cabinet has approved the propos al contained in paragraph 6 thereof.
Minutes of the Cabinet meeting may be seen at flag `I '." "It is requested that the matter may now be placed before the President for consideration.
" On 2nd June, 1971, the President made the following order: "I have considered the cases of the eighteen Police officers, whose names are given in the list appended to this order.
I have also considered all the facts and circumstances of their cases stated in the notes of the Minis try of Home Affairs, dated March 22, 1971, and May 25,1971." "I am satisfied, under paragraph (c) of the proviso to clause (2) of Article 311 of the Constitution, that in the interest of the security of the State it is not expedient to hold an inquiry into the case of any one of these Police Officers.
I accordingly order that these eighteen Police Officers be dis missed from service with immediate effect.
" It is clear from what has been extracted above that the order of the President was not on the basis of his personal satisfaction as required 712 by the Rule in Sardari Lal 's case but was upon the aid and advice of the Council of Ministers, as required in Shamsher Singh 's case.
In view of this factual position, learned counsel for the appellants fairly stated that there was no force in his first contention.
We see no force in the second point canvassed by Mr. Nariman.
This Court quashed the orders of dismissal on account of noncompliance of the requirements of the law and when the Police Officers returned to service it was open to the employer to deal with them in accordance with law.
No leave of this Court was necessary for making a fresh order in exercise of the disciplinary jurisdiction after removing the defects.
Now coming to the third contention of Mr. Nariman, the matter appears to have been concluded by the judgment of this Court in the case of Union of India & Anr.
vs Tulsirara Patel & Ors., ; Those were also cases of striking railwaymen against whom orders of dismissal had been made after dispensing with the inquiry by exercise of powers under the same proviso.
Four learned Judges repre senting the majority spoke through Madon, J. and this Court held that there was a constitutional obligation to record in writing the reason for the satisfaction that one of the sub clauses was applicable and if such reason was not re corded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional.
The Court further stated that communi cation of the resaon to the aggrieved Government servant was not obligatory but perhaps advisable.
The record of the case produced before us clearly indicates that the reason has been recorded though not communicated.
That would satisfy the requirements of the law as indicated in Tulsiram Patel 's case.
The plea of mala fides as had been contended before the High Court and casually reiterated before us arises out of the fact that typed orders dated 3rd of June, 1971, were already on record in the file when the papers were placed before the President; such a contention is without any substance.
The President 's order is dated 2nd of June and the typed orders of dismissal bear the date of the following day.
In this setting, there is no scope to suggest that typed orders representing Government 's decision were avail able on the record by the time the matter was placed before the President.
All the legal contentions have failed.
Ordinarily in such a situation, the appeals have to be dismissed.
Mr. Nariman, however, has placed before us for consideration a statement made by the Home Minister before the Lok Sabha on 18th of December, 1978.
Therein he had stated: 713 " . . . 18 persons who have been dismissed by invoking clause (c) of the provi so to Article 311(2) will be considered for grant of compassionate allowances.
" This statement was also reiterated in the papers placed before the President.
Obviously the Government intended to pay them compassionate allowances.
We have no sympathy for indiscipline.
In fact, in an orderly force like the Police, indiscipline is bound to give rise to serious problems of administration.
It is, however, unnecessary to go into that aspect of the matter as the Government had made it known that they intended to treat even these 18 policemen liberal ly by giving them compassionate allowances.
The matter has been sufficiently protracted, the first order of dismissal was made a little more than 20 years back and in the mean time some of the policemen out of this group of 18 have died.
In such circumstances to leave this matter for a future date for fixing compassionate allowance would not be just and proper.
We had suggested to the learned counsel appearing for the Union of India to have instructions and give us an indication of what was in view of the Government when compassionate allowance was thought of.
There has been no response yet.
We are not prepared to detain delivery of the judgment on that ground.
In our opinion, the situation would be met in a just way if instead of paying a recurring allowance, a lump sum amount is paid to the policemen who are alive or their legal representatives in the case of the policemen who are dead.
We accordingly direct that in the case of Sub Inspectors who were dismissed, a lump sum amount of Rs.60,000 (Rupees Sixty Thousand only), in the case of Head Constables who were dismissed a sum of Rs.50,000 (Rupees Fifty Thousand only) and in the case of Constables a lump sum of Rs.40.000 (Rupees Forty Thousand only) should be paid within one month from today.
The appeals are dismissed subject to the direction for payment of the lump sum amounts indicated above in lieu of compassionate allowance.
There would be no orders for costs.
N.P.V. Appeals dis missed.

summary:
The Supreme Court having quashed in appeal the dismissal orders dated April 14, 1967 passed against the appellant policemen, they were served fresh orders of dismissal on June 5, 1971 In exercise of the power conferred under clause (c) of second proviso to Article 311(2) of the Constitution.
The appellants challenged that these orders, without an inquiry as envisaged in Ariticle 311(2), were vitiated as the power under sub clause (c) of the second proviso to that Article had not been exercised upon personal satisfaction of the President.
On behalf of the respondent Union of India, it was contended that the President had personally consid ered all the facts and circumstances of each case and, after having satisfied himself, passed the order that in the interest of the security of the State it was not expedient to hold the inquiry.
The High Court held that the exercise of the power by the President under clause (c) to the proviso to Article 311(2) was fully covered by clause (1) of Article 361 and the President was not answerable to any court for the exer cise and performance of his powers and duties under this clause of the proviso to Article 311 and no court had juris diction to examine the facts and circumstances that led to the satisfaction of the President envisaged in clause (c) except probably on the ground of mala fide, and dismissed the Writ Petitions.
705 In the appeals before this Court, it was contended on behalf of the appellant that the impugned order of dismissal in 1971 which was claimed to have been passed on the person al satisfaction of the President was vitiated in view of the rule laid down in the case of Shamsher Singh and Anr.
vs State of Punjab, that the appellants having been reinstated in service in terms of judgment of this Court, without leave of the Court, no second order of dismissal on the same material could have been passed, and that the High Court was wrong in holding that the sufficiency of satisfaction of the President was not justiciable.
Dismissing the appeals, this Court, HELD: 1.1 The order of the President was not on the basis of his personal satisfaction as required by the Rule in Sardari Lal 's case but was upon the aid and advice of the Council of Ministers, as required in Shamsher Singh 's case.
The dismissal order was, therefore, not vitiated.
[711H, 712A] 1.2 This Court quashed the orders of dismissal earlier on account of non compliance of the requirement of law and when the police officers returned to service it was open to the employer to deal with them in accordance with law.
No leave of Court was necessary for making a fresh order in exercise of the disciplinary jurisdiction after removing the defects.
[712B] 1.3 There was a constitutional obligation to record in writing the reason for the satisfaction that one of the sub clauses was applicable and if such reason was not re corded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional, and the communication of the reason to the aggrieved Government servant was not obligatory but perhaps advisable.
[712D] In the instant case, the record of the case indicates that the reason has been recorded though not communicated.
That would satisfy the requirements of law.
[712E] Union of India & Anr.
vs Tulsiram Patel & Ors., ; , followed.
1.4 No malafides could be attributed to the impugned order of dismissal.
The President 's order is dated 2nd of June and the typed orders of dismissal bear the date of the following day.
There is, there 706 fore, no scope to suggest that typed orders representing Government 's decision were available on the record by the time the matter was placed before the President.
[712F] [This Court has no sympathy for indiscipline.
In an orderly force like police, indiscipline is bound to give rise to serious problems of administration.
The Government had made it known that they intended to treat even these policemen liberally by giving them compassionate aliowances.
The situation would be met in a just way if lump sum amounts are paid to the dismissed policemen who are alive or to their legal representatives in the case of those who are dead, at the rate of Rs.60,000 to Sub Inspectors, Rs.50,000 to Head Constables and Rs.40,000 to Constables.] [713B, D F] Sardari Lal vs Union of India & Ors., ; and Shamsher Singh & Anr.
vs State of Punjab, ; , referred to.


judgement:
Criminal Appeal No. 322 of 1987.
From the Judgment and Order dated 19.1.1987 of the Bombay High Court in Criminal Writ Petition No. 103 of 1986.
672 Hardev Singh and Ms. Madhu Moolchandani for the Appellant.
B.A. Masodkar, A.S. Bhasme and A.M. Khanwilkarforthe Respondent.
The Judgment of the Court was delivered by SEN, J.
This appeal by special leave is directed against the judgment and order of the High Court of Bombay dated January 19, 1987 rejecting the petition under article 226 of the Constitution filed by the appellant in the High Court for grant of a writ of habeas corpus.
The appellant has been placed under detention by the impugned order dated September 7, 1986 passed by the District Magistrate, Beed under section 3(2) of the on his being satis fied that it was necessary to do so 'with a view to prevent ing him from acting in any manner prejudicial to the mainte nance of public order '.
The appellant challenged the im pugned order of detention on grounds inter alia that there was infraction of the constitutional safeguards enshrined in article 22(5) read with section 8 of the Act inasmuch as there was inordinate, unexplained delay on the part of the detaining authority to consider and dispose of his representation.
On the view that we take, it is not necessary to deal with the facts elaborately.
The material facts are these.
The appellant was taken into custody on September 8, 1986 and was lodged at the Aurangabad Central Prison, Aurangabad where he is now detained.
He was served with the grounds of detention along with the copies of the relevant documents on September 14, 1986.
It appears that a week thereafter i.e. on September 22, 1986 he addressed a representation to the Chief Minister through the Superintendent, Aurangabad Cen tral Prison, Aurangabad which the Superintendent forwarded to the Home Department on September 24, 1986.
The State Government, in the meanwhile, under section 3 (4) of the Act accorded its approval to the impugned order of detention on September 18, 1986.
On October 6, 1986 the appellant made another representation to the Advisory Board which met and considered the same on October 8, 1986.
On October 13, 1986 the Advisory Board after considering the representation made by the appellant together with the materials placed before it forwarded its report to the State Government recommending confirmation of the impugned order of detention as there was, in its opinion, sufficient cause for the detention of the appellant.
Acting upon the report of the Advisory Board, the State Government by its order dated November 19, 1986 confirmed the order of detention.
In the mean 673 time, the appellant moved the High Court on November 13, 1986.
The main ground on which the legality of the impugned order of detention was assailed in the High Court was that although the appellant had addressed a representation to the Chief Minister on September 22.
1986, it was not considered and disposed of by the Chief Minister till November 17, 1986 i.e. there was unexplained, unreasonable delay in disposal of the same.
It was said that such unreasonable delay in disposal of the representation was sufficient to render the continued detention of the appellant illegal.
The High Court did not think it necessary to call upon the respondents and by an oral judgment dismissed the writ petition mainly on the ground of imperfect pleadings.
It observed that the appellant had not specifically pleaded that there was unrea sonable delay in the office of the Chief Minister which had not been explained and therefore the detention was illegal, but his grievance was that his representation had not been considered.
It referred to paragraph 4 of the writ petition where it is submitted: "It is submitted that in law, the State Gov ernment is bound to consider the representa tion before the decision of the Advisory Board, but in the instant case neither the State Government has considered the represen tation of the petitioner nor the Government has communicated its decision.
" It referred to the underlined portion of the averments in paragraph 4 of the writ petition, namely: "Eight weeks have elapsed since the date of detention of the petitioner but still neither the State Government has taken any decision on the representation forwarded through the Home Department nor the petitioner is communicated any decision pursuant to the report . . " The High Court distinguished the decision of this Court in Harish Pahwa vs State of Uttar Pradesh & Ors., ; on the ground that in that case the Court had before it the affidavit of the Government showing that it had no explanation to offer except that it had referred the matter to the Law Department and also there was sufficient material to show that there was unreasonable delay in dealing with the representation whereas in the present case there was no such ground raised.
The High Court disallowed the prayer for grant of a writ of habeas corpus mainly on the ground of defective pleadings, and 674 added that the appellant "had not even asked for time to amend the petition" and "put the respondents to notice".
It observed: "While the State undoubtedly has the duty to process the representation of the detenu promptly, it is also the duty of the petition er to make specific adverments of facts and their effect, if necessary, by amendment.
This is necessary to put the respondents to notice, that the effect of these facts have to be answered and explained.
The respondents may have an explanation as to why the Chief Minis ter took so much time.
On such submission we cannot hold that the respondents have failed to explain delay or that the time taken by the Chief Minister was wholly necessary.
We should not be understood to have held that the time taken by the Government was justified.
Far from it.
But we cannot allow the petitioner to take the respondents by surprise by such a style of pleading.
" It was an improper exercise of power on the part of the High Court in disallowing the writ petition on the ground of imperfect pleadings.
Normally, writ petitions are decided on the basis of affidavits and the petitioner cannot be permit ted to raise grounds not taken in the petition at the hear ing.
The same rule cannot be applied to a petition for grant of a writ of habseas corpus.
It is enough for the detenu to say that he is under wrongful detention, and the burden lies on the detaining authority to satisfy the Court that the detention is not illegal or wrongful and that the petitioner is not entitled to the relief claimed.
This Court on more occasions than one has dealt with the question and it is now well settled that it is incumbent on the State to satisfy the Court that the detention of the petitioner/detenu was legal and in conformity not only with the mandatory provi sions of the Act but also strictly in accord with the con stitutional safeguards embodied in article 22(5).
In return to a rule nisi issued by this Court or the High Court in a habeas corpus petition, the proper person to file the same is the District Magistrate who had passed the impugned order of detention and he must explain his subjective satisfaction and the grounds therefore; and if for some good reason the District Magistrate is not available, the affidavit must be sworn by some responsible officer like the Secretary or the Deputy Secretary to the Government in the Home Department who personally dealt with or processed the case in the Secretariat or submitted it to the Minister or other Officer duly authorised under the Rules of Business framed by the Governor under article 166 of the Constitution to pass orders on behalf of the Govern 675 ment in such matters: Niranjan Singh vs State of Madhya Pradesh, ; ; Habibullah Khan vs State of West Bengal, ; Jagdish Prasad vs State of Bihar & Anr., ; and Mohd. Alam vs State of West Bengal, ; In the present case, in answer to the notice issued by this Court under article 136, the affidavit in reply has been filed by Shri S.V. Joshi, District Magistrate, Beed who passed the impugned order of detention.
There is a general denial in paragraph 2 of the counter affidavit that there was unreasonable delay in the disposal of the representation made by the appellant.
However, the delay in disposal of the representation was in the Secretariat and therefore it is averred in paragraph 11: "I say that the affidavit filed by Shri Vish wasrao, Desk Officer, Home Department (Special), Mantralaya, Bombay on behalf of State of Maharashtra in the High Court Bench at Aurangabad will reveal that different steps, as required by the provisions of Na tional Security Act, 1980 are taken immediate ly, within stipulated period." and it is then averred in paragraph 12 that the contentions raised by the appellant with regard to delay have been dealt with by the High Court while deciding the writ petition.
It is said that the appellant has raised the contention about unreasonable delay in disposal of his representation, for the first time in this Court presumably on the reasoning of the High Court.
There is on record an affidavit sworn by I.S. Vishwasrao, Desk Officer, Home Department (Special), Mantralaya, Bombay in answer to the grounds 16(A) and 16(E).
As regards the grounds 16(A) and 16(E) formulated in the petition for grant of special leave regarding unreasonbale delay, it is averred in paragraph 3 of the affidavit: "I say that the representation dated 22nd September, 1986 addressed to the Chief Minis ter by the detenu was forwarded by the Super intendent, Aurangabad Central Prison, Auranga bad on 24th September, 1986.
I further say that the said representation was received in the Department on 26th September, 1986.
I further say that the parawise remarks on the said representation were called for from the detaining authority, i.e. District Magistrate, Beed on 26th September, 1986 and remarks of the District Magistrate dated 3rd October, 1986 were received by the 676 Government on 6th October, 1986.
I further say that thereafter, the said representation was processed together with report of the Advisory Board and as stated in the earlier paragraphs, the said representation was rejected and the detention of the detenu was confirmed by the Chief Minister on 17th November, 1986.
" In the same paragraph, there is the following averment made with regard to delay in disposal of the representation in the Chief Minister 's Secretariat: "I further say that the Chief Minister was pre occupied in connection with very important matters of the State which involved tours as well as meetings outside Bombay.
I further say that during the period from 23.10.1986 to 17.11.
1986, two Cabinet meetings were held at Pune and Aurangabad, each meeting lasting for two days i.e. 28th and 29th October, 1986 at Pune and 11th and 12th November, 1986 at Aurangabad.
I further say that such meetings in Pune and Aurangabad are generally held once a year to focus the attention on regional problems.
I further say that the preparations for these meetings as well as other meetings held with the concerned Ministers and offi cials demanded a lot of time of the Chief Minister and this naturally resulted in some delay in disposing of several cases submitted to the Chief Minister including this case.
I further say that the cases where such repre sentations are made in the detention matters, they required a close scrutiny of all the relevant record and careful application of mind.
I therefore, respectfully submit that the time taken for passing the Government order in this case should be viewed in the light of the averments made in this affidavit and therefore, if properly considered, it cannot be said that the delay in disposing of the representation is unreasonable and unex plained.
" It is somewhat strange that the State Government should have acted in such a cavalier fashion in dealing with the appellant 's representation addressed to the Chief Minister.
We are satisfied that there was failure on the part of the Government to discharge its obligations under article 22(5).
The affidavit reveals that there were two representations made by the appellant, one to the Chief Minister dated September 22, 1986 and the other to the Advisory Board dated 677 October 6, 1986.
While the Advisory Board acted with com mendable despatch in considering the same at its meeting held on October 8, 1986 and forwarded its report together with the materials on October 13, 1986, there was utter callousness on the part of the State Government to deal with the other representation addressed to the Chief Minister.
It was not till November 17, 1986 that the Chief Minister condescended to have a look at the representation.
When the life and liberty of a citizen is involved, it is expected that the Government will ensure that the constitutional safeguards embodied in article 22(5) are strictly observed.
We say and we think it necessary to repeat that the gravity of the evil to the community resulting from anti social activi ties can never furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws.
The history of personal liberty is largely the history of in sistence on observance of the procedural safeguards.
Apart from the admitted inordinate delay, there is a fundamental defect which renders the continued detention of the appellant constitutionally invalid.
As observed by one of us (Sen, J.) in Narendra Purshotam Umrao vs B.B. Gujral & Ors., ; there was a duty cast on the Govern ment to consider the representation made by the detenu without waiting for the opinion of the Advisory Board.
The constitution of.an Advisory Board under section 9 of the Act does not relieve the State Government from the legal obligation to consider the representation of the detenu as soon as it is received by it.
It goes without saying that the constitu tional right to make a representation guaranteed by article 22(5) must be taken to include by necessary implication the constitutional right to a proper consideration of the repre sentation by the authority to whom it is made.
The right of representation under article 22(5) is a valuable constitutional right and is not a mere formality.
The representation made by the appellant addressed to the Chief Minister could not lie unattended to in the portals of the Secretariat while the Chief Minister was attending to other political affairs.
Nor could the Government keep the representation in the archives of the Secretariat till the Advisory Board submit ted its report.
In Narendra 'Purshotam Umrao 's case it was observed: "Thus, the two obligations of the Government to refer the case of the detenu to the Advisory Board and to obtain its report on the one hand, and to give an earliest opportunity to him to make a representation and consider the representation on the other, are two distinct obligations, independent of each other.
" After referring to the decisions of this Court in Abdul Karim vs State of West Bengal, ; ; Pankaj Kumar Chakrabarty vs State of West Bengal, ; 678 and Khairul Haque vs State of West Bengal, W.P. No. 246 of 1969, decided on September 10, 1969 the nature and dual obligation of the Government and the corresponding dual right in favour of the detenu under article 22(5) was reiterat ed.
The following observations of the Court in Khairul Haque 's case were quoted with approval: "It is implicit in the language of article 22 that the appropriate Government, while dis charging its duty to consider the representa tion, cannot depend upon the view of the Board on such representation.
It has to consider the representation on its own without being influ enced by any such view of the Board.
There was, therefore, no reason for the Government to wait for considering the petitioner 's representation until it had received the report of the Advisory Board.
As laid down in Abdul Karim vs State of West Bengal, the obli gation of the appropriate Government under article 22(5) is to consider the representation made by the detenu as expeditiously as possi ble.
The consideration by the Government of such representation has to be, as aforesaid, independent of any opinion which may be ex pressed by the Advisory Board.
The fact that article 22(5) enjoins upon the detaining authority to afford to the detenu the earliest opportunity to make a representation must implicitly mean that such representation must, when made, be considered and disposed of as expeditiously as possible, otherwise, it is obvious that the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning." In the circumstances, there being a failure on the part of the State Government to consider the representation made by the appellant addressed to the Chief Minister without wait ing for the opinion of the Advisory Board, renders the continued detention of the appellant invalid and constitu tionally impermissible.
We have no manner of doubt that there is no explanation whatever much less any reasonable explanation for the inor dinate delay in consideration of the representation made by the appellant addressed to the Chief Minister and that by itself is sufficient to invalidate the impugned order of detention.
In fact, no one has filed any affidavit to ex plain the cause for the delay in Chief Minister 's Secretari at.
The counter affidavit filed by Shri S.V. Joshi, District Magistrate contains 679 a bare denial in paragraph 2 that there was any unreasonable delay in the disposal of the representation.
As regards the delay in disposal of the representation in the Secretariat, he adverts in paragraph 11 to the affidavit filed by Vish wasrao, Desk Officer, Home Department on behalf of the State Government and asserts that it reveals the different steps that were taken and in paragraph 12 he submits that the contention about unreasonable delay in disposal of the representation by the State Government was not raised in the High Court and it has been taken for the first time in this Court.
Even so, the appellant having raised the ground in appeal it was the duty of the State Government to have placed all the material along with the counter affidavit.
There is in fact no explanation offered as regards the delay in disposal of the representation in the Secretariat.
We have already extracted the relevant portion from the affida vit of Vishwasrao, Desk Officer.
It is accepted that the representation made by the appellant to the Chief Minister on September 22, 1986, forwarded by the Superintendent, Aurangabad Central Prison on the 24th, was received in the Home Department on the 26th which in its turn forwarded the same to the detaining authority i.e. the District Magistrate on the same day i.e. 26th for his comments.
The District Magistrate returned the representation along with his com ments dated October 3, 1986 which was received by the Gov ernment on the 6th.
It is said that thereafter the represen tation was processed together with the report of the Adviso ry Board and was forwarded to the Chief Minister 's Secre tariat where the same was received on October 23, 1986.
It is enough to say that the explanation that the Chief Minis ter was "pre occupied with very important matters of the State which involved tours as well as two Cabinet meetings at Pune on October 28 and 29, 1986 and at Aurangabad on November 11 and 12, 1986" was no explanation at all why the Chief Minister did not attend to the representation made by the appellant till November 17, 1986 i.e. for a period of 25 days.
There was no reason why the representation submitted by the appellant could not be dealt with by the Chief Minis ter with all reasonable promptitude and diligence and the explanation that he remained away from Bombay is certainly not a reasonable explanation.
In view of the wholly unex plained and unduly long delay in the disposal of the repre sentation by the State Government, the further detention of the appellant must be held illegal and he must be set at liberty forthwith.
For these reasons, the appeal must succeed and is allowed.
The judgment and order passed by the High Court are set aside and the appellant is directed to be set at liberty forthwith.
P.S.S. Appeal allowed.

summary:
The appellant was placed under detention on September 8, 1986, consequent upon an order of detention passed by the District Magistrate, Beed under section 3(2) of the on his being satisfied that it was neces sary to do so 'with a view to preventing him from acting in any manner prejudicial to the maintenance of public order '.
He was served with the grounds of detention alongwith copies of the relevant documents on September 14, 1986.
He ad dressed a representation to the Chief Minister, State of Maharashtra on September 22, 1986 through the Superintend ent, Central Jail, Aurangabad, who forwarded the same to the State Government, Home Department which received it on September 26, 1986, and on the same day forwarded it to the District Magistrate for his comments.
On October 3, 1986, the District Magistrate returned the representation along with his comments and the same were received in the Home Department on October 6, 1986.
The State Government had, in the meanwhile, accorded its approval to the impugned order of detention under section 3(4) of the Act on September 18, 1986.
On October 6, the appellant made another representation to the Advisory Board against the order of detention.
669 The Advisory Board met on October 8, 1986, considered the representation and forwarded its report to the State Govern ment on October 13 recommending confirmation of the order of detention.
Thereafter, the representation made by the appel lant was processed in the Home Department along with the report of the Advisory Board and forwarded to the Chief Minister 's Secretariat where the same was received on Octo ber 23, 1986.
The representation remained undisposed in the Chief Minister 's Secretariat and was put up before him on November 17, 1986 and he rejected the same.
Upon these facts, the appellant moved the High Court by a petition under article 226 of the Constitution for the grant of a writ of habeas corpus on the next day i.e. on November 18, 1986 contending that his continued detention was uncon stitutional and void inasmuch as there was inordinate, unexplained delay on the part of the detaining authority to consider and dispose of his representation which was in violation of the constitutional safeguards enshrined in article 22(5) read with section 8 of the .
The writ petition was dismissed by the High Court inter alia on the ground of defective pleadings regarding the delay in Chief Minister 's Secretariat in dealing with the representation.
In the appeal by special leave, the District Magistrate in his counter affidavit denied that there was any unreason able delay in the disposal of the representation and submit ted that no such ground regarding unreasonable delay was taken in the High Court in the writ petition, and was raised for the first time before this Court, presumably on the reasoning of the High Court.
In the other counter affidavit the Desk Officer, Home Department (Special) explained the reasons for the delay in the Chief Minister 's Secretariat asserting that the Chief Minister remained preoccupied with very important matters of the State during the period from October 23, 1986 to November 17, 1986 and therefore it was not possible for him to have dealt with the representation earlier.
Allowing the appeal, HELD: 1.The continued detention of the appellant was illegal and he must be set at liberty forthwith.
[679G] 2.1 It is incumbent on the State to satisfy the Court that the detention of the petitioner/detenu was legal and in conformity not only with the mandatory provisions of the Act but also strictly in accord with the constitutional safe guards embodied in article 22(5).
[674F] 670 2.2 The constitutional right of the detenu to make a representation guaranteed by article 22(5) is a valuable right and is not a mere formality.
It includes by necessary impli cation the constitutional right to a proper consideration of the representation by the authority to whom it is made.
[677E] In the instant case, there were two representations made by the appellant, one to the Chief Minister dated September 22, 1986 and the other to the Advisory Board dated October 6, 1986.
While the Advisory Board acted with commendable despatch in considering the same at its meeting held on October 8, 1986 and forwarded its report on October 13, 1986, it was not till November 17, 1986 that the Chief Minister look at it.
There was no reason why he could not deal with it with all reasonable promptitude and diligence.
The explanation that he remained preoccupied with very important matters of the State, which involved tours as well as Cabinet meetings, was no explanation at all.
There was therefore, failure on the part of the Government to dis charge its obligations under article 22(5).
[676H 677B; 679F, 679E, 676G] 2.3 The constitution of an Advisory Board under section 9 of the Act does not relieve the State Government from the legal obligation to consider the representation of the detenu as soon as it is received by it.
The two obligations of the Government to refer the case of the detenu to the Advisory Board and to obtain its report on the one hand, and to give an earliest opportunity to him to make a representation and consider the representation on the other, are two distinct obligations independent of each other.
There is thus a duty cast on the Government to consider the representation made by the detenu without waiting for the opinion of the Adviso ry Board.
[677E, G, D] Narendra Purshotam Umrao vs B.B. Gujral & Ors.
; , referred to.
The failure of the Government in the instant case to consider the representation without waiting for the opinion of the Advisory Board renders the continued detention of the appellant invalid and constitutionally impermissible.
[678F] 3.
In return to the rule nisi issued by this Court or the High Court in a habeas corpus petition, the proper person to file the same is the District Magistrate who had passed the impugned order of detention, and he must explain his subjective satisfaction and the grounds therefore and if for some good reason the District Magistrate is not avail able, the 671 affidavit must be sworn by some responsible officer like the Secretary or the Deputy Secretary to the Government in the Home Department who personally dealt with or processed the case in the Secretariat or submitted it to the Minister or other officer duly authorised under the Rules of Business framed by the Governor under article 166 of the Constitution to pass orders on behalf of the Government in such matters.
[674F 675A] Niranjan Singh vs State of Madhya Pradesh ; ; Habibullah Khan vs State of West Bengal, ; Jagdish Prasad vs State of Bihar & Anr., ; and Mohd. Alam vs State of West Bengal, ; , referred to.
In the instant case, no one has filed any affidavit to explain the delay in the Chief Minister 's Secretariat.
The counter affidavit filed by the District Magistrate contains a bare denial that there was any unreasonable delay in the disposal of the representation.
As regards the delay in the Secretariat he adverts to the affidavit filed by the Desk Officer, Home Department and asserts that it reveals the different steps that were taken.
There is in fact no expla nation offered as regards the delay in the disposal of the representation in the Secretariat.
[678G 679C] 4.
It was an improper exercise of power on the part of the High Court in disallowing the writ petition on the ground of imperfect pleadings.
The rule that a petitioner cannot be permitted to raise grounds not taken in the peti tion at the hearing cannot be applied to a petition for grant of a writ of habeas corpus.
It is enough for the detenu to say that he is under wrongful detention, and the burden lies on the detaining authority to satisfy the Court that the detention is not illegal or wrongful and that the petitioner is not entitled to the relief claimed.
[674DE] In the appeal the appellant having raised the ground of delay in disposal of his representation in Chief Minister 's Secretariat it was the duty of the State Government to have placed all the material along with the counter affidavit.
[679B]