judgement:
vil Miscellaneous Peti tion No. 25533 of 1986.
IN THE MATTER OF T.V. CHOUDHARY, A MEMBER OF 148 THE INDIAN ADMINISTRATIVE SERVICE (UNDER SUSPENSION) WITH Special Leave Petition No. 14045 of 1985.
From the Judgment and Order dated 18.10.1985 of the Andhra Pradesh High Court in W.P. No. 891 of 1985.
P.P. Rao, Mrs. Shyamla Pappu, B. Kanta Rao, Ms. Malini Poduval, B. Parthasarthi, Mrs. Indra Sawhney and B.B. Sawh ney for the Petitioner.
Dr. Y.S. Chitale, T.V.S.N. Chaff, Ms. Vrinda Grover and Ms. Sunila Monigude for the Respondents.
The Judgment of the Court was delivered by SEN, J.
This is an application made by one T.V. Choud hary, a Member of the Indian Administrative Service, under suspension, for recalling the Court 's orders dated May 5, 1986 and August 11, 1986 passed in Special Leave Petition No. 14045 of 1985.
We shall first deal with the Special Leave Petition of E.S. Reddi, a member of the Indian Administrative Service belonging to Andhra Pradesh cadre and who worked as the Vice Chairman cum Managing Director of the Andhra Pradesh Mining Corporation.
It is directed against a judgment of the Division Bench of the High Court dated October 18, 1985 reversing the judgment and order of a learned Single Judge dated September 2, 1985 and dismissing his petition under article 226 of the Constitution.
By the writ petition, the petitioner had called in question the validity of an order of the State Government of Andhra Pradesh dated February 11, 1985 placing him under suspension under sub r.
(1) of r. 13 of the Andhra Pradesh Civil Services (Classification, Con trol & Appeal) Rules, 1963.
The main grievance of the peti tioner before the High Court was that the impugned order of suspension was wholly mala fide, arbitrary and irrational and violative of article 14 of the Constitution as there was no justification for the differential treatment meted out to him while the applicant T.V. Choudhary, also a member of the Indian Administrative Service, who worked in various capaci ties viz. as General Manager, Functional Director, Member, Board of Directors and Vice Chairman cure Managing Director and 149 was involved in the commission of the alleged irregulari ties, had merely been transferred from the Corporation and posted as Managing Director, Andhra Pradesh State Textile Development Corporation.
That objection of his was sustained before the learned Single Judge who by his judgment dated September 2, 1985 quashed the impugned order of suspension.
The Division Bench however by the judgment under appeal has reversed that judgment and dismissed the writ petition holding that the findings arrived at by the learned Single Judge are not warranted by the material on record.
Civil Miscellaneous Petition No. 255 10/86 is filed by R. Parthasarthy, a member of the Indian Administrative Service who was Vice Chairman cum Managing Director of the Corporation for the period from March 1979 to October 1979 and was working as the Commissioner of Commercial Taxes, while Civil Miscellaneous Petition No. 25533/86 is by T.V. Choudhary, also a member of the Indian Administrative Serv ice and who was working as the Managing Director of the Andhra Pradesh State Textile Development Corporation.
These two applications are for recalling the Court 's orders dated May 5, 1986 and August 11, 1986 on the ground that they prejudicially affect the applicants.
The matter relates to defalcation of a huge amount of Rs. 1.50 crores by certain officers of the State Government whose services were placed on deputation with the Corporation.
Admittedly, the Anti Corruption Bureau, Andhra Pradesh has registered a case against these officers for having committed alleged offences punishable under section 120B read with section 420 of the Indian Penal Code and section 5(1)(d) of the Prevention of Corruption Act, 1947 as its preliminary report revealed a prima facie case against them.
On December 12, 1985 the Court issued notice on the Special Leave Petition.
It appeared from the counter affida vit filed by the State Government that the Anti Corruption Bureau had finalised the investigation and the Director General had submitted his report dated March 25, 1986 which was under consideration of the Government.
It also appeared that the State Government of Andhra Pradesh had addressed letters dated May 2, 1984 for sanction of the Central Gov ernment under section 6(1)(a) of Prevention of Corruption Act, 1947 for the prosecution of R. Parthasarthy and of the State Government of Maharashtra for the prosecution of P. Abraham, I.A.S. as he is borne on the Maharashtra cadre and was on deputation to the Andhra Pradesh.
In compliance with the Court 's order, the State Government placed before us the letter of the State Government dated May 2, 1984 150 as also the report of the Director General, Anti Corruption Bureau, Andhra Pradesh dated May 25, 1986.
After hearing the parties on May 5, 1986, we made the following order: "In compliance to this Court 's order, Shri P. Ram Reddy, learned counsel for the State Government places before us the letter of the State Government dated May 2, 1984 as also the report of the Director General, Anti corrup tion Bureau, Andhra Pradesh dated March 25, 1986.
It appears from the letter that sanction of the Central Government is necessary under section 6(1)(a) of the Prevention of Corruption Act, 1947 for the prosecution of R. Partha sarthy, IAS and that of the State Government of Maharashtra for the prosecution of P. Abraham we have perused the report of the Director General and it cannot be said that the charges levelled against the petitioner are groundless.
It is somewhat surprising that the petitioner alone should have been placed under suspension by the State Government pending contemplated departmental enquiry under r. 13 of the A.P. Civil Services (Clas sification, Control & Appeal) Rules, 1963 and not the other two officers T.V. Choudhary and S.M. Rao Choudhary, the then Managing Director who it appears are equally culpable.
The matter is adjourned till after vacation to enable the State Government to obtain the requisite sanction from the Central Government for the prosecution of R. Partha sarthy and that of the State Government of Maharashtra for the prosecution of P. Abraham under section 6(1)(a) of the Act.
Shri P. Ram Reddy learned counsel for the State Government shall in the meanwhile convey to the State Govern ment the concern expressed by this Court that the petitioner alone could have been placed under suspension and not the other officers who are alleged to be co accused.
We are afraid, if the State Government does not pass any order placing the other officers under suspension it may become necessary for the Court to revoke the suspension of the peti tioner at the next hearing.
" When the matter came up after vacation on August 18, 1986 it had to be adjourned with a direction that the State Government should in the meanwhile pass necessary orders for suspension of the delinquent officers.
In anticipation of action by the State Government, the 151 two applicants R. Parthasarthy and T.V. Choudhary moved applications on September 2 and September 3, 1986 for re calling the directions made on May 5, 1986 and August 11, 1986.
The applications were listed for directions on Septem ber 5, 1986.
On motion being made by learned counsel appear ing for the applicants, it was directed that the applica tions be placed for heating on September 9, 1986.
The State Government in the meanwhile on September 6, 1986 passed orders for suspension of P. Parthasarthy and T.V. Choudhary under r. 13(1) of the Rules.
We were apprised of this fact when the applications came up for heating on September 9, 1986 that the State Government had already placed them under suspension.
In the special leave petition, the only contention of the petitioner E.S. Reddi was that the action of the State Government in making selective suspension suffered from the vice of arbitrariness and offended against article 14 of the Constitution inasmuch as persons like the applicant T.V. Choudhary who were equally culpable have merely been trans ferred while he has been singled out and placed under sus pension under sub r.
(1) of r. 13 of the Rules without any rational basis and that such arbitrary action of the State Government was tantamount to denial of equal treatment to persons similarly placed.
In view of the subsequent order passed by the State Government on September 6, 1986 placing other officers including the applicant .T.V.
Choudhary under suspension under r. 13(1) of the Rules pending their prose cution, the special leave petition has become infructuous.
It is accordingly dismissed.
That takes us to C.M.P. Nos.
25510/86 and 25533/86 filed by R. Parthasarthy and T.V. Choudhary respectively.
We impressed upon the learned counsel appearing for them that the proper course for the applicants was to move the Govern ment by way of appeal and/or representation against their suspension and not by these applications for recalling the Court 's orders.
After the matter was heard at a considerable length, Smt.
Shyamala Pappu, learned counsel appearing for R. Parthasarthy very properly prayed for leave to withdraw C.M.P. NO.
255 10/86 as the applicant had already made a representation to the State Government.
She prayed that a direction be made requiring the Government to consider the representation at an early date.
Dr. Y.S. Chitale, learned counsel appearing for the State Government fairly agreed that the said representation would be considered by the Government on merits.
Turning next to C.M.P. No. 25533/86.
We must strongly depre 152 cate the conduct of the applicant T.V. Choudhary, a member of the Indian Administrative Service and working as Managing Director of the Andhra Pradesh State Taxtile Development Corporation, to have made reckless allegations and cast aspersions on the Court.
After denying his complicity, the applicant T.V. Choudhary goes on to assert: "The Order of this Hon 'ble Court directing the Government to suspend the other delinquent officers is made without affording an opportu nity to the Applicant and presumably without considering the relevant provisions of law, case law and the parameters of judicial power and the necessity to observe the principles of natural justice.
It is submitted that the Order of this Hon 'ble Court dated 11th August 1986 is illegal, insofar as it directed the Government to suspend the applicant and others, in view of the fact that the Government has exercised its discretion and transferred the applicant taking into consideration the recommendation of the Anti corruption Bureau.
It is well settled that a Court of law cannot compel a statutory authority to exercise its statutory discretion in a particular manner.
The legis lative will in conferring discretion in an essentially administrative function cannot be interfered with by Courts.
" To say the least, the averments are highly objectionable.
It was expected that the applicant, who is a very senior member of the Indian Administrative Service, should have shown greater responsibility before making such unfounded allega tions and uncalled for aspersions.
On a motion being made on September 5, 1986 by Shri P.P. Rao, learned counsel for the applicant, it was directed that the application shall be listed for hearing on September 9, 1986.
At the same time, we drew the attention of the learned counsel to the improper and objectionable averments made by the applicant.
We were given the impression that the application had been settled by the learned counsel without noticing the offending aver ments.
We wish we could have rested content with concluding the judgment with the operative portion of our conclusions on the merits of the case but we find with a sense of anguish and heaviness of heart that we have to express our disap proval of the manner in which the arguments were advanced before us on behalf of the applicant T.V. Choudhary.
153 Not only were the arguments advanced with undue vehemence and unwarranted passion, reflecting identification of inter est beyond established conventions but were of degrees not usual of enlightened senior counsel to adopt.
The majesty of law and the dignity of courts cannot be maintained unless there is mutual respect between the Bench and the Bar and the counsel act in full realisation of their duty to the Court alongside their duty to their clients and have the grace to reconcile themselves when their pleas and arguments do not find acceptance with the Court.
It is needless for us to say that neither rhetoric nor tempestuous arguments can constitute the sine qua non for persuasive arguments.
By virtue of the pre eminence which senior counsel enjoy in the profession, they not only carry greater responsibili ties but they also act as a model to the junior members of the profession.
A senior counsel more or less occupied a position akin to a Queen 's counsel in England next after the Attorney General and the Solicitor General.
It is an honour and privilege conferred on advocates of standing and experi ence by the Chief Justice and the Judges of this Court.
They thus become leading counsel and take precedence on all counsel not having that rank.
A senior counsel though he cannot draw up pleadings of the party, can nevertheless be engaged "to settle" i.e. to put the pleadings into "proper and satisfactory form" and hence a senior counsel settling pleadings has a more onerous responsibility as otherwise the blame for improper pleadings will be laid at his doors.
Lord Reid in Rondel vs Worsley, ; has succinctly set out the conflicting nature of the duties a counsel has to perform in his own inimitable manner as follows: "Every counsel has a duty to his client fear lessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client 's case.
As an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the pub lic, which may and often does lead to a con flict with his client 's wishes or with what the client thinks are his personal interests.
Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his cli ents but which 154 the law or the standards of his profession require him to produce.
By so acting he may well incur the displeasure or worse of his client so that if the case is lost, his client would or might seek legal redress if that were open to him.
" Again as Lord Denning, M.R. in Rondel vs W, would say 'he (the counsel) has time and again to choose between his duty to his client and his duty to the Court.
This is a conflict often difficult to resolve; and he should not be under pressure to decide it wrongly.
When a barrister or an advocate puts his first duty to the Court, he has nothing to fear '.
In the words of Lord Denning: "It is a mistake to suppose that he is the mouthpiece of his client to say what he wants: . .
He must disregard the most specific instructions of his client, if they conflict with his duty to the court.
The code which requires a barrister to do all this is not a code of law.
It is a code of honour.
If he breaks it, he is offending against the rules of the profession and is subject to its discipline.
" We are constrained to give expression to our views with a feeling of remorse to remind the counsel of that sense of detachment and non identification they are expected to maintain with the causes espoused by them and not with a view to belittle the profession or cast aspersions on coun sel.
After bestowing our dispassionate consideration of the matter we found ourselves left with no other alternative but to dismiss the application made by T.V. Choudhary which was clearly misconceived and we direct the applicant to pay Rs.5,000 as costs to the State Government in view of the disapprobation his case and conduct has warranted.
H.L.C. Petitions dismissed.

summary:
An officer involved in a defalcation case who was sus pended, challenged the order of suspension under article 14 of the Constitution on the ground that another officer similar ly situate had merely been transferred.
The order was quashed by a Single Judge of the High Court, but, on appeal, his judgment was reversed by the Division Bench.
The matter came up before the Court by way of a Special Leave Petition.
The counter affidavit filed by the State Government indicated that it had initiated action to prosecute two other officers involved in the case.
When the Special Leave Petition came up for hearing, the Court made an interim order directing the counsel to convey to the State Govern ment the Court 's concern at the petitioner alone having been placed under suspension and, indicating that if the State Government did not pass any order placing the other offi cers, who, on a perusal of the investigation report, ap peared to be equally culpable, under suspension, it may become necessary lot the Court to revoke the suspension of the Special Leave Petitioner at the next hearing.
When the matter came up again, it had to be adjourned by the Court with another interim order directing the State Government to pass necessary orders for suspension of all the delinquent officers.
In anticipation of action by the State Government, two other officers involved in the case filed applications praying for recall of the two interim orders aforesaid.
However, the two officers in question were also placed under suspension before the matter finally came up for hearing.
The Court impressed upon counsel appearing for the applicants who had prayed for recall of the interim orders that the proper course for them was to move the State Gov ernment by way of appeal and/or representation against their suspension.
While counsel for one of the applicants accepted that suggestion and ,withdrew the application, counsel for the other applicant did not do so.
The latter applicant had, 147 in his application, made certain reckless allegations and cast aspersions on the Court.
The counsel appearing for him gave the impression that the application had been settled by him without noticing the offending averments but went on to advance arguments with undue vehemence and unwarranted passion.
The Court, while dismissing the Special Leave Petition as infructuous and expressing disapproval of the manner in which arguments had been advanced on behalf of one of the applicants.
HELD: By virtue of the pre eminence which 'Senior Coun sel ' enjoy in the profession, they not only carry greater responsibilities but they also act as a model to the junior members of the profession.
A senior counsel more or less occupies a position akin to a Queen 's counsel in England next after the Attorney General and the Solicitor General.
It is an honour and privilege conferred on Advocates of standing and experience by the Chief Justice and the Judges of this Court.
They thus become leading counsel and take precedence on all counsel not having that rank.
A senior counsel though he cannot draw up pleadings of the party, can nevertheless be engaged "to settle" i.e. to put the plead ings into "proper and satisfactory form" and hence a senior counsel settling pleadings has a more onerous responsibility as otherwise the blame for improper pleadings will be laid at his doors.
[153C E] In this case, not only were the arguments advanced with undue vehemence and unwarranted passion, reflecting identi fication of interests beyond established conventions but were of degrees not usual of enlightened senior counsel to adopt.
The majesty of law and the dignity of Courts cannot be maintained unless there is mutual respect between the Bench and the Bar and the counsel act in full realisation of their duty to the Court alongside their duty to their cli ents and have the grace to reconcile themselves when their pleas and arguments do not find acceptance with the Court.
Neither rhetoric nor tempestuous arguments can constitute the sine qua non for persuasive arguments.
[153A C] Rondel vs W, and Rondel vs Worsley, ; , referred to.


judgement:
ivil Appeal No. 390 of 1981.
From the Judgment and Order dated 31.8.
1979 of the Patna High Court in C.W.J.C. No. 262 of 1979 (R).
M.K. Ramamurthy, A.K. Nag and Mrs. Naresh Bakshi for the Appellants.
Jaya Narayan and Pramod Swarup for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This appeal is directed against the judgment and order of the High Court of Patna, (Ranchi Bench) dated 3 1st August, 1979.
It involves the question of the right of ex intermedi aries to get compensation for the minerals which were not exploited by the exlandlords on the date of vesting the estate under Bihar Land Reforms Act, 1950 (hereinafter referred to as the 'Act ').
Raja Nilkanth Narayan Singh of Sawagarh estate was the exlandlord whose estate vested by virtue of the notification under the Act with effect from 4th November, 1951.
The petitioners before the High Court and the appellants herein are the successors in interest being the grandson and the daughter in law of the late Nilkanth Narayan Singh.
The estate of the ex landlord comprised, inter alia, tauzi Nos.
14 and 15 of the District Collectorate of Dhanbad within the aforesaid tauzis.
These were vast areas of mineral bearing lands owned by the ex proprietor of the estate.
Some part of the said area 227 was being worked by the lessees under the leases granted to them who paid royalty to late Nilkanth Narayan Singh, afore said, who, it might be stated, died in November, 1969 in a state of jointness with other appellants.
The case of the appellants is that compensation in respect of the coal bearing area having coal reserves i.e. minerals, has not yet been paid by the State of Bihar al though the estate had vested in it as early as in November, 195 1.
So far as the mines that were being worked out or the minerals which were the subject matter of leases granted by the ex landlord are concerned, there was no dispute.
The appellants are entitled to and have not been denied compen sation in respect thereof under the Act, and the Rules.
The controversy is only on the question whether the ex landlord or his successor in interest is entitled to compen sation for the minerals which were not the subject matter of any lease granted in favour of any lessee.
However, it appears, there is no dispute on the question that had such minerals been the subject matter of a lease, the ex interme diary would have been entitled to compensation in respect thereof in the manner provided under the Act to be computed as prescribed by the Rules.
The High Court after an exhaustive discussion of the different provisions of the Act came to the conclusion that ex intermediary is not entitled to the compensation as claimed for and as such dismissed the application under Article 226 of the Constitution.
Being aggrieved by the said decision, the appellants after obtaining a certificate under Article 133(1) of the Constitution have come up to this Court.
The expression 'mines ' used in the Act or in the Rules had a distinct connotation namely those minerals that were unworked and unexcavated reserves while excavated mines had been worked.
The question, therefore, involves, as the High Court rightly pointed out not only the mines but with miner als located beneath the earth, and neither being worked by ex intermediary on the date of vesting nor being the subject matter of lease in favour of any third party.
The fights of the parties have t.o be worked out under the provisions of the Act.
The Act in question was an Act which was passed to provide for the transference to the State of the interests of proprietors, and tenure holders in land and of the mortgages and lessees of such interests including interests in trees, forests, fisheries, 'jalkars ' ferries, 228 'hats ', 'bazars ' mines and minerals, and to provide for the constitution of a Land Commission for the State of Bihar with powers to advise the State Government on the agrarian policy to be pursued by the State Government consequent upon such transference and for other matters connected therewith.
On an analysis of the scheme of the Act, it appears that section 3 of the Act provides for the notification vesting an estate or tenure in the State.
It provides, inter alia, that the State Government may, from time to time, by notifi cation declare that the estates or tenures of a proprietor or tenure holder, specified in the notification, have passed to and become vested in the State.
There was appropriate notification passed in this case.
On issuance of the notifi cation, the estates become vested in the State.
Section 4 deals with the consequences of vesting.
It provides that notwithstanding anything contained in any other law for the time being in force or in any contract, on the publication of the notification notwithstanding anything to the con trary, certain consequences, as mentioned in section 4 would follow.
Such consequences are mentioned in clauses (a), (b), (c), (d) and (e) and other sub clauses of section 4 of the Act.
Section 9 deals with the mines worked by intermediary and it provides that with effect from the date of vesting all such mines comprised in the estate or tenure as were in operation at the commencement of the Act and were being worked directly by the intermediary shall, notwithstanding anything contained in the Act, be deemed to have been leased by the appropriate Government to the intermediary and he shall be entitled to retain possession of those mines as a lessee thereof.
The terms and conditions of the said lease would be such as would be agreed upon between the State Government and the intermediary provided that all such terms and conditions shall be in accordance with the provisions of any Central Act for the time being in force.
Section 10 deals with the consequences of subsisting leases of mines and minerals and provides for vesting of the same.
Section 23 deals with computation of net income for the purpose of preparing compensation assessment roll of the net income of the intermediary.
Section 24 deals with the rates of compen sation, and provides that after the net income had been computed under section 23, the Compensation Officer should for the purpose of preparing compensation assessment roll proceed to determine the amount of compensation to be pay able in respect of the transference to the State of the interests of each intermediary.
The table is set out in the section.
Section 2.5.
is important and deals with the compu tation of compensation payable for mines and minerals.
The relevant portion of it provides, inter alia, as follows: "25.
Computation of compensation payable for mines and minerals.
229 (1) The Compensation Officer shall prepare in the prescribed form and in the prescribed manner compensation assessment roll containing in respect of every intermediary in receipt of royalties on account of mines and minerals or directly working mines comprised in the estate or tenure (a) his gross income and net income from such royalties; (b) his gross income from mines worked directly by him and the amount deemed to be his net income from royalties in respect of such mines; (c) the amount of compensation payable to him under the provisions of this Act for mines and minerals; and (d) such other particulars as may be pre scribed." Then sub section (2) of section 25 deals with the prepara tion of compensation roll for clause (a) of sub section (1) and sub section (3) deals with the preparation of compensa tion roll for clause (b) of sub section (1).
Sub section (4) deals with the question whether after net income from royal ties have been computed under sub sections (2) and (3), the Compensation Officer should proceed to determine the amount of compensation to be payable to the intermediary in the manner and in accordance with the principles laid down therein.
While we are on the provisions of the Act and the Rules, reference may be made to Bihar Land Reforms Rules, 195 1 (hereinafter called the 'Rules '), and Rule 25 E deals with the procedure for determining the approximate amount of compensation or annuity.
It provides as follows: "25 E. Procedure for determining the approximate amount of compensation or annuity.
(1) The approximate amount of compensation in respect of the intermediary interests, other than that payable for mines and minerals, shall be the approximate net income arrived at in the manner laid down in rule 25 C multi plied by the appropriate multiple referred to in Sec.
24(1); and the approximate amount of annuity shah be equal to the approximate net income.
(2) The approximate amount of compensation or annuity payable for mines and minerals com prised in the estate or 230 tenures of an intermediary shall be worked out after considering the report to be obtained from the Mining Officer of the existing re serves in the mines or minerals and the proba ble income therefrom in the future.
(3) The approximate amount of the total com pensation or annuity payable to the intermedi ary shall be arrived at by adding the approxi mate amount of compensation or annuity payable for mines and minerals to the approximate amount of compensation or annuity in respect of his other interests: Provided that, if no such informa tion regarding the existing reserves in the mines or minerals and the probable income therefrom in the future is available, the approximate amount of compensation or annuity shall be calculated only on the basis of the net income from the intermediary interests, other than mines or minerals, in accordance with sub rule (1): Provided further that the deduction allowed under clause (c) and (cc) of Sec. 4 shall be recovered by deduction from the approximate amount of compensation payable to the intermediary under this rule.
" It is clear from the facts brought out by the High Court that all the mines comprised in the estate or tenure of ex intermediary which were worked out directly by him although vested as a result of the provisions of section 4A were deemed by legal fiction to be subsequently settled by the State Government in favour of the ex intermediary and that ex intermediary should be deemed in law to be statutory lessee under the State Government in respect of the mines which have been worked out by him.
It is clear from several provisions of the Act including section 9 that there is no section dealing with the minerals at all.
In this connection sections 9 and 10 may be borne in mind.
Section 25 of the Act envisages compensation to be payable for mines and minerals and provides that ex interme diary shall be paid for the payment to the ex intermediary who is in receipt of royalties on account of mines and minerals or directly working mines in the estate or tenure consisting of his gross income namely, income of exinterme diary, gross and net income from royalty and his gross income 231 from mines worked directly by ex intermediary and the amount deemed to be the net income from royalties of his mines; under clause (c) of sub section (1) of section 25, the amount of compensation payable to him under the provisions of the Act for mines and minerals.
On behalf of the State Government it was contended that this item under clause (c) of section 25(1) was nothing additional or extra than clause (a) plus clause (b) of sub section (1) of section 25 and he supported this submission by reference to sub sections (2), (3) and (4) of section 25.
According to the State, Rule 25 E of the Rules does not carry the matter any further.
On the other hand counsel for the appellants, Mr. Ramamurthy, submitted that where there are minerals which were not tapped and not exploited by the ex intermediary, acquisition of source of income for the intermediary would be acquisition of property and no statute should be so read as would amount to, specially in the background of the constitutional provisions prevailing in 1950 when this Act was passed, as taking away right of property without payment of compensation.
It was urged that there was no provision for compensation for this purpose.
If it is so read as contended for by the respondent for this valuable property of the appellants, such construction which would amount to exproprietary legislation should be avoided.
On the other hand, it was submitted that there was no ques tion of expropriation.
The property was not in existence.
It was acquisition of a right which might be a source of income and property if tapped but it was not an existing right.
The Rules and the sections must be harmoniously con strued.
Here the legislature was acquiring the estate of ex intermediary.
For all the existing sources of his income and which were being exploited, compensation has been pro vided for.
But for fight which might become a source of income which had not been exploited, no compensation has been provided.
Where a statute provides for the assumption and enforcement of an existing right liability, it will not be construed as extending that liability or creating a new one unless it does so in clear terms.
See in this connection Halsbury 's Laws of England, 4th Edition, Vol.
44, page 556, paragraph 904.
But here there is no question of interpreting any law which will expose the Act to constitutional infirmi ty.
The right was not existing at the time of vesting no question therefore arises of depriving ex intermediary of any right without compensation.
The basic principle of construction of every statute is to find out 232 what is clearly stated and not to speculate upon latent imponderables.
The scheme of the Act does not support the appellant.
Moreover section 25(1)(a) & (b) deal with inde pendent items and sec.
25(1)(c) is a combination of two.
The other sub sections make it quite clear.
Compensation for the acquisition of a source which when exploited might become property or income is not necessary.
Ownership is a bundle of rights for all the elements of existing ingredients of bundle of rights and for the existing bundle of rights compensation has been provided for.
The statute is not bad on that ground.
It is not for the court to provide for compensation where legislature has thought it fit not to do so.
The view which we are taking in view of the fact that compensation for existing rights has been provided for would not expose this statute to the vice of the unconstitutionality as exproprietary.
Had there been such a possibility, other considerations might have been there.
The Act has been incorporated in Item I of the 9th Schedule of the Constitu tion.
How the respondent authorities treated this question in the initial stage is irrelevant.
It is well settled that a statute must be read as a whole, fairly and reasonably.
It must be so read, if possible, and warranted by the context to give effect to the manifest intent of the framer.
So read we find that the statute does not provide for any compensa tion for the minerals not exploited.
That does not make the Act unconstitutional.
So be it.
In that view of the matter, we are of the opinion that the High Court was right and the appeal must therefore fail and is accordingly dismissed.
In the facts and circumstances of the case, however, we make no order as to costs.
P.S.S. Appeal dismissed.

dataset_name: IN-Abs

summary:
Section 3 of the Bihar Land Reforms Act, 1950 provides for vesting of an estate or tenure in the State by notifica tion.
Under section 9 from the date of such vesting all mines comprised in the estate or tenure, as were in operation at the commencement of the Act and were being worked directly by the intermediary were deemed to have been leased to the intermediary and he was entitled to retain possession there of.
Section 10 provides for vesting of subsisting leases of mines and minerals.
Section 25 provides for computation of compensation payable to the intermediary in respect of royalties on account of mines and minerals or directly working mines comprised in the estate or tenure.
Rule 25 E of the Bihar Land Reforms Rules, 1951 deals with the proce dure for determination of the amount of compensation or annuity.
The estate of the ex landlord comprising vast areas of mineral bearing lands was vested in the State by virtue of a notification under section 3 of the Act with effect from 4th November, 1951.
Some part of the said area was being worked by the lessees under the leases granted to them, who paid royalty to him.
The ex landlord died in 1969.
His successors in inter est, the appellants herein, filed writ petition before the High Court claiming compensation in respect of the coal bearing area having coal reserves vested in the State.
The High Court came to the conclusion that the ex intermediary was not entitled to the compensation as claimed, and dis missed the petition.
225 In this appeal by certificate, it was contended for the appellants that where there are minerals which were not tapped and not exploited by the ex intermediary, acquisition of the source of income for the intermediary would be acqui sition of property, that there was no provision for compen sation for this purpose in the Act, and the statute was, therefore, exproprietary in nature.
For the respondents, it was contended that there was no question of expropriation.
The property being not in existence, it was acquisition of a right which might be a source or ' income and property it ' tapped, but it was not an existing right.
Dismissing the appeal, the Court, HELD 1.
A statute must be read as a whole, fairly and reasonably.
It must be so read, if possible, and warranted by the context to give effect to the manifest intent of the framer.
So read, it cannot be said that the Bihar Land Reforms Act, 1950 provides for any compensation for the minerals not exploited.
That does not make the Act unconsti tutional.
[232D] 2.
The Rules and the sections must be harmoniously construed.
In the instant case, the legislature was acquir ing the estate of an ex intermediary.
For all the existing sources of his income and which were being exploited, com pensation has been provided for.
But for a right which might become a source of income which had not been exploited, no compensation has been provided.
Where a statute provides for the assumption and enforcement of an existing right or liability, it will not be construed as extending that li ability or creating a new one unless it does so in clear terms.
[231F] Halsbury 's Laws of England, 4th Edition, Vol.
44, page 556, paragraph 904, referred to.
In the instant case there is no question of interpreting any law which will expose the Act to constitutional infirmi ty.
The right was not existing at the time of vesting, no question therefore, arises of depriving the ex intermediary of any right without compensation.
[231G] 3.
The basic principle of construction of every statute is to find out what is clearly stated and not to speculate upon latent imponderables.
The scheme of the Act does not support the appellant that it is exproprietary in nature.
Section 25(1)(a) and (b) deal with independent items and section 25(1)(c) is a combination of the two.
The other sub sections make it quite clear.
Compensation for the acquisition of a source which 226 when exploited might become property or income is not neces sary.
Ownership is a bundle of rights and for the existing bundle of rights compensation has been provided lot.
[231 H 232B] 4.
It is not for the court to provide for compensation where legislature has thought it fit not to do so.
The fact that compensation for existing rights has been provided for would not expose the statute to the vice of unconstitution ality as exproprietary.
Had there been such a possibility, other considerations might have been there.
The Act has been incorporated in Item 1 of the 9th Schedule of the Constitu tion.] [232C]


judgement:
ivil Appeal No. 3551 of 1979.
the Judgment and Order dated 20/21.8.1979 of the Gujarat High Court in C.R. Appln.
No. 1218 of 1977.
293 Dr. Shankar Ghosh, P.H. Parekh and Ayesh Misra for the Appellant.
T.U. Mehta, R.C. Bhatia and P.C. Kapur for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
Whether the appellant herein and his father had sublet the premises in question in or about 1960 in terms of section 13(1)(e) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter called the 'Rent Act ') is ' the question involved in this appeal by special leave from the judgment and order of the High Court of Gujarat dated 21st of August, 1979.
In order to decide this question, it is necessary to decide the scope and ambit of section 29(2) of the Rent Act.
To decide this, facts must be referred to.
The appellant claimed to be the tenant in respect of the two premises which are quite adjacent to each other, one of which is involved in this appeal.
The respondent is the landlord of the two premises and these were situated at Raikhad Ward, Ahmedabad.
The respondent had alleged in the two suits that the appellant was his tenant in the suit premises which were leased out to him and before him his father, for conducting the business in the name of Ahmedabad Fine & Weaving Works and according to the terms of tenancy suit premises were leased for manufacturing cloth in the name of Ahmedabad Fine & Weaving Works.
The respondent had further alleged that the appellant No. 1 had closed the business and he was not using the said premises for the purpose for which it was let to him.
It was the case of the appellant that in respect of the suit premises he was carry ing on his business with respondents Nos. 2, 4 and 5 in the name of respondent No. 2, M/s. Bharat Neon Signs (hereinaf ter referred to as respondent No. 2).
We are concerned in this appeal with only one of the premises which was involved in Suit No. 553 of 1969.
It is not in dispute and it never was that the premises was being used by Bharat Neon Signs firm being the defendant No. 2 in the original suit.
At the time of the institution of the suit the defendants Nos. 2 to 5 were admittedly the part ners.
The present appellant who was the original defendant No. 1 claimed to be a partner.
The main controversy was whether the appellant had sublet the premises to defendant No. 2, Bharat Neon Signs or 294 whether he being a partner of the said firm had permitted the said firm to use the premises in question.
It is clear from the evidence on record that the partnership firm had undergone metamorphosis from time to time and again ever since the year 1960.
The firm Bharat Neon Signs first origi nated on 4th of October, 1960.
As many as six persons were named in the partnership firm, on or about 4th of October, 1960 and they had executed a deed of partnership on 13th of October, 1960 which is Exhibit 114 on the record.
The said partnership deed records six persons who were to run the business in manufacturing and selling Bharat Neon Signs tubes.
However, the document is silent as to where the business was started.
On or about 24th of October, 1960 another partnership deed being Exhibit 69 came to be execut ed among the six persons and the father of the appellant Girdharlal.
The document is Exhibit 69 and is signed by the father of the appellant and the appellant himself also.
It may be mentioned that the partnership deed Exhibit 114 was executed by six persons and at that stage the appellant or his father were not partners in the firm.
But thereafter when the partnership deed Exhibit 69 was executed the appel lant and his father joined the firm with an agreement to share profits only and their share was fixed at 0.03 paise in a rupee.
There is a third partnership deed Exhibit 70 which showed that the deceased tenant Girdharlal had died on 1st of February, 1961 and so by the remaining seven partners with same terms and conditions, a new partnership deed being Exhibit 70 was executed on 22nd September, 1961.
At this time the share of the appellant was fixed at 0.03 paise in a rupee to share the profits only.
In 1965 some partners retired and the remaining four partners executed a fresh partnership deed Exhibit 117 on 1st April, 1965.
This last partnership deed was executed by the appellant and original defendants Nos. 3, 4 and 5.
The main question in issue in this appeal as well as before the High Court in revision was whether there was a genuine partnership at the appellant was a partner.
It is true that since after 4th of October, 1960 the partnership firm was carrying on business in the premises in question.
It is well settled that if there was such a partnership firm of which the appellant was a partner as a tenant the same would not amount to subletting leading to the forfeiture of the tenan cy.
For this proposition see the decision of the Gujarat High Court in the case of Mehta Jagjivan Vanechand vs Doshi Vanechand Harakhchand and others, A.I.R. 1972 Gujarat 6.
Thakkar, J. of the Gujarat High Court, as the learned Judge then was, held that the mere fact that a tenant entered into a partnership and allowed the premises being used for the benefit of partnership does not constitute assign 295 ment or subletting in favour of the partnership firm enti tling a landlord to recover possession.
This view is now concluded by the decision of this Court in Madras Bangalore Transport Co. (West) vs Inder Singh and others, The trial court in the instant appeal held that there was subletting.
It accordingly decreed the suit for posses sion instituted by the landlord.
The suit, inter alia, was filed by the landlord on the ground of subletting.
There was an appeal before the Court of Small Causes, Bombay and by judgment and order delivered by the Court of Small Causes, Bombay on 18th of August, 1977, it was held that the learned Trial Judge had erred in passing a decree for possession on the ground of subletting, change of user and breach of terms of tenancy.
In the premises, the appeal was allowed.
It may be mentioned that the respondent No. 1 is the landlord of two premises which were quite adjacent as mentioned before.
The respondent plaintiff had alleged in both the suits that the appellant was his tenant in the suit premises which were leased to him for conducting his business in the name of Ahmedabad Fine & Weaving Works, and according to the terms of tenancy suit, the suit premises were leased for manufac turing cloth in the name of Ahmedabad Fine & Weaving Works.
The landlord had alleged that the appellant had closed that business and he was not using the premises in question for the purpose for which it was let to him.
It was further alleged by the landlord that the appellant had unlawfully sublet the major part of the premises in question of both the suits to defendant Nos. 2 to 5 in the original suit and these defendants were running business in partnership for manufacturing of neon signs in the name of Bharat Neon Signs.
It was further alleged that the appellant had also unlawfully sublet one room of the suit premises to defendant No. 6 in Suit No. 553 of 1969 who was residing in that room.
For the purpose of the Suit No. 553 of 1969 with which the appeal is concerned, it is relevant to state that the appel lant had raised the contention that Ahmedabad Fine & Weaving Works was not the tenant of the suit premies but the suit premises was tenanted by the father of the appellant Gird harlal Chimalal in 1938 and he was the original tenant of the premises and appellant subsequently joined the business of his father as a partner and the name of the partnership firm was Ahmedabad Fine Weaving Works.
He has stated further that the suit premises were to be used for business and he could use it for any business and he joined in partnership with Defendants Nos.
2 to 5 somewhere in 1961 to prepare neon signs and the defendants Nos. 2 to 5 were his partners and doing business in the suit premises.
He contended fur ther that the suit premises was with him and the 296 defendants Nos. 2 to 5 had not acquired any tenancy rights in the suit premises.
It is further stated that he had filed a civil suit to dissolve the partnership and to take account and his suit was pending in City Civil Court.
It may be mentioned that by the time the revision petition came to be decided by the High Court the suit had been decreed in his favour directing a dissolution of the said partnership and directing taking of the accounts.
There was an appeal filed from that decree and that appeal was also dismissed and disposed of affirming the decree for the dissolution of the partnership, inter se between the parties being the partners of the said firm.
These facts were accepted that there was a partnership.
As mentioned hereinbefore the learned trial Judge consolidated both the suits and in the instant suit being No. 553 of 1969 with which this appeal is concerned, it was held by the learned trial Judge that there was unlaw ful subletting.
There was a decree for possession.
This was set aside in appeal.
The Appellate Court so far as the material for the present appeal is concerned held that there was no subletting and there was only carrying on of the business in partnership with defendants Nos.
2 to 5 in the name of Bharat Neon Signs.
Therefore, the first question that had to be decided by the Appellate Court being the Court of Small Causes, Bombay and if a revision lay before the High court was whether there was any genuine partnership.
The partnership deeds were there, the appellant was not to share in the losses.
The Court of Small Causes came to the conclusion on an analysis of the evidence before it and the terms of the three partnership deeds referred to hereinbefore that there was a genuine partnership in law which was acted upon.
The High Court in revision reversed that finding.
The first question therefore, is, whether the High Court could do so in the facts of this case and second ly whether the High Court was right in so doing.
Whether there was a partnership or not may in certain cases be a mixed question of law and fact, in the sense that whether the ingredients of partnership as embodied in the law of partnership were there in.a particular case or not must be judged in the light of the principles applicable to partnership.
The first question, therefore, is what is a partnership? That has to be found in section 4 of the , it says "Partnership is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all" (Emphasis supplied).
Section 6 of the said Act reiterates that in determining whether a group of persons is or is not a firm, or whether a person is or is not a partner in a firm, 297 regard shall be had to the real relation between the par ties, as shown by all relevant facts taken together.
The following important elements must be there in order to establish partnership, (1) there must be an agreement en tered into by all parties concerned, (2) the agreement must be to share profits of business; and (3) the business must be carried on by all or any of the persons concerned acting for all.
The partnership deeds were there entitling the petitioner to share in the partnership.
It is true that in the partnership deeds the bank accounts were not to be operated by the appellant, and further that irrespective of the profit the clause of the partnership deed provided that there should be a fixed percentage of profit to be given to the partner appellant No. 1.
The appellant was not to share the losses.
But there is nothing illegal about it.
The appellant was to bring his asset being the tenancy of the premises in question for the user of the partnership.
All these tests were borne in mind by the Court of Small Causes, Bombay in the appeal from the decision of the learned trial Judge.
The Appellate Court had considered the partnership deeds.
One point was emphasised by Mr. Mehta, learned coun sel appearing for the respondents, that the original first partnership deed did not mention the appellant or his father as a partner.
It was in the second partnership deed that the appellant and his father joined the firm.
The firm started as emphasised by Mr. Mehta on 4th of October, 1960 and it was only on the 24th of October, 1960 the second partnership deed was executed.
Therefore, it was emphasised that there was a gap of time when there was user by the partnership firm of the premises in question when the appellant was not a member of the firm.
It was emphasised that this aspect was not considered by the Court of Small Causes and the High Court, therefore, was justified in interfering with the findings of the Court of Small Causes.
We are unable to agree.
These deeds were there, the partners were cross examined, there was no specific evidence as to from what date the firm started functioning from the particular prem ises in question.
Secondly, it was emphasised by Mr. Mehta that the partnership deed was a camouflage.
It is evident from the sales tax registration and other registration certificates and licences under the Shops and Establishments Act that the partnership was registered in the name of the appellant and the appellant was also indicated as a partner.
It was so in the Income Tax returns and assessments.
There fore, it was submitted that the Court of Small Causes com mitted an error of law resulting in miscarriage of justice.
It was submitted by Mr. Mehta that once it was accepted that the partnership deed was a mere camouflage the other subse quent acts and conducts were merely ancillary and were put in a formal way.
But the question is from the three deeds itself which were examined in detail by the Court 298 of Small Causes and which were re examined by the High Court could it be said unequivocally that there was no partner ship.
The deeds gave the appellant the right to share the profits and made him agent for certain limited purposes of the firm and there was evidence that the partnership deeds were acted upon.
There was evidence of suit of dissolution of the partnership where none of the partners took the plea that it was a false or a fictitious document.
Though the decree in the dissolution suit was not binding in these proceedings, inter se between the parties as partners it is a piece of evidence which cannot be wholly ignored.
All these factors were present before the Court of Small Causes.
These were reappraised by the High Court.
One point was emphasised by Mr. Mehta that in the partnership deed which is not necessary to recite the terms, the petitioner was completely excluded in operating the bank accounts etc.
There is nothing inherently illegal or improbable making a provision of such a type.
In the eye of law, such a clause is really non sequitur or neutral proving neither the exist ence nor non existence of a genuine firm.
The first partnership deed which is Exhibit 114 is dated 13th October, 1960.
It recited that the partnership firm should be presently started at Ahmedabad and the same should later be started in another city.
In this the appellant was not a partner.
Exhibit 69 at page 136 of Volume II of the paper book is a partnership deed wherein Girdharlal the father of the Appellant No. 1 and the appellant No. 1 joined as partners.
It recited that the partnership started from 4th of October, 1960 at Ahmedabad.
It was registered in the name of 7th and 8th partners, Girdharlal who was the appel lant and his father.
It was recited that the work of the partnership would be done by the parties of the fourth, fifth, sixth, seventh and eighth as per advice and instruc tions of the first, second and third.
All the work had been done by some of the partners of which appellants were not parties and that they had to do the said work as per in structions of the other partners.
Clauses 6 and 7 of the said partnership deed recited inter alia as follows: "6.
The year of accounts of our partnership shall be Aso Vadi 30th day i.e. Diwali and the first account year is decided to be the Aso Vadi 30th day of Samvat Year 2017.
While settling accounts at the close of the year, 33% amount from the sum which may remain as net profit after deducting all expenditures, viz interest, discount, rent of the shop, rent of the godown, insurance, brokerage, travelling, tele grams, postage, salaries of employees, etc.
shall 299 be carried to Reserve Fund and thereafter, in the sum that remains as net profit, the shares of us the partners have been fixed as under: Rs. Np.
Ratanlal Jivabhai.
0 16 2.
Manubhai Lalbhai.
0 16 3.
Keshavlal Mulchand.
0 05 4.
Kantilal Bhogilal.
0 10 5.
Virchand Keshavji.
0 23 6.
Satyapal Jeshal.
0 24 7.
Girdharlal Chimanlal.
0 03 8.
Helper Girdharlal.
0 03 0 100 i.e. Re. 1/ 7.
While settling accounts at the close of the year, if the sum less than Rs. 1500 falls to the 0 03 shares of the partners of the seventh and eighth parts, the amount falling short has to be debited towards the head of expenditure and Rs. 1500 (fifteen hundred only) have to be paid in full to each of them two, and in those circumstances or if there be loss, the parties of the seventh or eighth parts have not been held liable therefore; and in the year or ' losses, it has been decided to pay Rs. 1500 (fifteen hundred only) to each of them, after debiting the same towards the head of expenditure and in the year of losses nothing has to be carried to the 'Reserve Fund ' and the loss has to be borne by us to parties first to sixth parts in the following proportion: 1.
Ratanlal Jivabhai 0 17 2.
Manubhai Lalbhai 0 17 3.
Keshavlal Mulchand 0 05 4.
Kantilal Bhogilal 0 11 5.
Virchand Keshavji 0 25 6.
Satyapal Jeshal 0 25 0 100 i.e. Re. 1/ 300 Clause 8 empowered the operating of the bank accounts by partners other than the appellant and his father.
We find intrinsically nothing improbable.
It is embodied in the deeds the functioning of the partnership.
The third partner ship which is dated 22nd of September, 1961 also indicates as parties of sixth part the name of the appellant.
The relevant portion of the partnership deed reads as follows: "To wit, the parties of the first to sixth parts out of us, deceased Khristi Girdharbhai Chimanlal and Shah Virchand Keshavji had jointly started the business of manufacturing and selling Neon Signs Tubes, in partnership in Ahmedabad from 4.10.1960, in the name and style of Bharat Neon Signs.
However, on account of the death of Khristi Girdharbhai Chimanlal on 1.2.61 and other reasons, the said partnership was dissolved from 8.9.61.
Thereafter, we the parties from the first to seventh part have, after purchasing at its cost price, all the debts and dues, goods, stock etc., together with goodwill of the dissolved partnership, started manufac turing and selling of Neon Signs Tubes in partnership from 9.9.61.
We, the parties of all the seven parts execute the deed of the said partnership to day i.e. 22.9.61.
The terms and conditions thereof are as under: (1) The entire work of our partnership has to be carried out in the name of "Bharat Neon Signs.
" (2) The work to be carried out by our partnership is of manufacturing and selling Neon Signs Tubes and of obtaining orders therefore.
(3) Whatever moneys that may be required to be invested in our partnership, are to be invested by the parties of the first, second, third, fourth and seventh parts out of us and the interest at the rate of 71/2 per cent per annum has to be paid for the moneys that may be invested in this partnership.
" We are of the opinion that these were evidence that these terms were acted upon.
There was nothing intrinsically wrong in law in constituting a partnership in the manner it was done.
It was contended by Mr. Mehta that there was no agency; reading the partnership deeds as we have read that conclusion does not emanate from position 301 appearing debiting the fixed amount payable to the appellant in the expenses account which also is not inconsistent with partnership.
This is also not inconsistent with treating the rent of the firm in the context of the total expenditure of the firm.
In any event all these factors were considered by the Court of Small Causes bearing in mind the correct legal principles.
The High Court on a reappraisal of these very evidence came to the conclusion that the partnerships were camouflages and were not acted upon and in fact and in reality the partnership firm was a sub tenant of the appel lant herein.
The question is, can the High Court do so in law.
The power of the High Court to revise the order is contained in section 29(2) of the Bombay Rent Act as applicable at the relevant time to Gujarat, The said provision reads as fol lows: "29(2) no further appeal shall lie against any decision in appeal under sub section (1) but the High Court may, for the purpose of satisfying itself that any such decision in appeal was according to law, call for the case in which such decision was taken and pass such order with respect thereto as it thinks fit.
" The ambit and power of revision generally and in particular with respect to the provisions with which we are concerned have from time to time come up for consideration by this Court.
This Court in Hari Shankar vs Rao Girdhari Lal Chowd hury; , had to consider section 35(1) of the Delhi & Ajmer Rent Corntrol Act, 1952.
The said section reads as follows: "35(1) The High Court may, at any time, call for the record of any case under this Act for the purpose of satisfying itself that a decision made therein is according to law and may pass such order in relation thereto as it thinks fit.
" It was held in the majority judgment by HidayatuIIah, J. as the learned Chief Justice then was, that though section 35 of the Delhi and Ajmer Rent Control Act was worded in general terms but it did not create a right to have the case re heard.
This Court emphasised that the distinction between an appeal and revision is a real one.
A right to appeal carries with it right of re heating on law as well as fact, unless the statute conferring the right to appeal limits the re hearing in some 302 way.
The power to hear a revision is generally given to a superior court so that it may satisfy itself that a particu lar case is decided according to law.
The expression "ac cording to law" in section 35 of the said Act referred to the decision as a whole, and was not to be equated to errors of law or of fact simpliciter.
This Court was of the view that what the High Court could see is that there has been no miscarriage of justice and that the decision was according to law in the sense mentioned.
Kapur, J. who delivered a separate judgment, however, observed that the power under section 35(1) of the said Act of interference by the High Court is not restricted to a proper trial according to law or error in regard to onus of proof or proper opportunity of being heard.
It is very much wider than that, when in the opinion of the High Court the decision is erroneous on the question of law which affects the merits of the case or decision was manifestly unjust the High Court is entitled to interfere.
The revisional authority could ensure that there was no miscarriage of justice and the principles of law have been correctly borne in mind, the facts had been properly comprehended in that light.
If that was done in a particular case then the fact that the revisional authority or the High Court might have arrived to a different conclusion is irrel evant.
This view had also been expressed in the decision of this Court in Puranchand vs Motilal, [1963] Supp. 2 S.C.R. 906.
This principle was reiterated in Krishnawati vs Hans Raj, ; which was dealing with section 39(2) of the Delhi Rent Control Act, 1958 in second appeal.
It was observed that under section 39(2) of the said Act, the High Court could interfere in second appeal only if there was a substantial question of law.
In that case, the question whether the appellant was legally married no find ing was necessary in the eviction suit.
It was sufficient for the rent court to proceed on the finding that the appel lant and S were living together as husband and wife, whether they were legally married or not.
It was further held that whether there was subletting was not a mixed question of law and fact.
In Phiroze Bamanji Desai vs Chandrakant M. Patel & Ors., ; the question involved was whether there was reasonable and bona fide requirement of premises for personal use and occupation as also the question of greater hardship under the Bombay Rent Act and the ambit and scope of the power of Section 29(3) of the said Act with which we are concerned came up for consideration.
Bhagwati, J. as the learned Chief Justice then was, referred with approval the observations of Hidayatullah, J. referred to hereinbefore in Hari Shankar 's case (supra).
Bhagwati, J. observed that the ambit of section 35(1) of the Delhi & Ajmer Rent Control Act which fell for consideration in Hari Shanker 's case (supra) was the same as section 29(3) of the Bombay Rent Act and therefore, he expressed the opinion that the 303 High Court could interfere only if there was miscarriage of justice due to mistake of law.
We must take note of a decision in the case of M/s Kasturbhai Ramchand Panchal & Brothers and Others vs Firm of Mohanlal Nathubhai and Others, , upon which the High Court had placed great reliance in the judg ment under appeal.
There the learned judge relying on sec tion 29(2) of the said Act held that the revisional power with which the High Court was vested under section 29(2) was not merely in the nature of jurisdictional control.
It extended to corrections of all errors which would make the decision contrary to law.
The legislature, the learned Judge, felt, further empowered High Court in its revisional jurisdiction to pass such order with respect thereto as it thought fit.
The power according to the learned Judge was of the widest amplitude to pass such orders as the Court thought fit in order to do complete justice.
He dealt with the human problem under section 13(2) of Bombay Rent Act considering the relative hardships of the landlord and the tenant and to arrive at a just solution he was of the opin ion that the court should have such wide field.
The juris diction of High Court is to correct all errors of law going to the root of the decision which would, in such cases, include even perverse findings of facts, perverse in the sense that no reasonable person, acting judicially and properly instructed in the relevant law could arrive at such a finding on the evidence on the record.
In this view in our opinion the ambit of the power was expressed in rather wide amplitude.
As we read the power, the High Court must ensure that the principles of law have been correctly borne in mind.
Secondly, the facts have been properly appreciated and a decision arrived at taking all material and relevant facts in mind.
It must be such a decision which no reasonable man could have arrived at.
Lastly, such a decision does not lead to a miscarriage of justice.
We must, however, guard our selves against permitting in the guise of revision substitu tion of one view where two views are possible and the Court of Small Causes has taken a particular view.
If a possible view has been taken, the High Court would be exceeding its jurisdiction to substitute its own view with that the courts below because it considers it to be a better view.
The fact that the High Court would have taken a different view is wholly irrelevant.
Judged by that standard, we are of the opinion that the High Court in this case had exceeded its jurisdiction.
In the case of Punamchandra Revashankar Joshi vs Ramjib hai Maganlal, Gujarat Law Reporter (1966) at page 807, the Gujarat High Court after dealing with the Gujarat Amendment Act (XVIII) of 1965 304 observed that the Legislature has not intended to equate the ambit of the power with the one exercised in an appeal.
The authority vested in the High Court under the amendment still remained only in the domain of the jurisdiction and power of revision and no further.
The amending provision, therefore, only related to procedure and not to any rights of the parties.
This Court in the case of Bhai Chand Ratanshi vs Laxmis hanker Tribhavan, [1982] 1 Rent Control Journal 242 observed that where lower courts applied their minds properly in deciding a matter under section 13(2) of the Bombay Rent Act, the High Court could not substitute its own finding for the one reached by the courts below, on a reappraisal of evidence under section 29(2) of the Act as substituted by the Gujarat Act 18 of 1965.
This Court reiterated that although the High Court had wider power than that which could be exercised under section 115 of C.P.C., yet its revisional power could only be exercised for a limited purpose with a view to satisfying itself that the decision was according to law.
The High Court could not substitute its own finding for the one reached by the courts below on a reappraisal of evidence.
In the instant case the basic question is whether keep ing in background the partnership deeds referred to herein before and the facts that came to light, was there partner ship or not.
Sharing of profits and contributing to losses were not the only elements in a partnership, existence of agency was essential and whether there was a partnership or not is a mixed question of law and fact, depending upon the varying circumstances in different cases.
This view was reiterated by Chief Justice Beaumont, in Chimanram Motilal and another vs Jayantilal Chhaganlal and another, A.I.R. 1939 Bombay 410.
Ramaswami, J. in Mohammed Musa Sahib (dead) and others vs N.K. Mohammed Ghouse Sahib and another, A.I.R. 1959 Madras 379 observed that whether the relation of part nership between two or more persons does or does not exit must depend on the real intention and contract of the par ties and not merely on their expressed intention.
He also referred to section 4 of the Partnership Act about the principles of partnership namely, (1) there must be agree ment entered into by all the persons concerned; (2) the agreement must be to share the profits of a business; and (3) the business must be carried on by all or any of the persons concerned acting for all.
In the instant case judged by the aforesaid principles, it is possible to hold that there was a partnership of which the appellant was a part ner.
The Court of Small Causes considered these principles, evaluated the evidence and held that there was in fact and in law a partnership.
Such a view was not an impossible one or a perverse one.
305 If that was so, there was nothing that could be clone about such a view, within the ambit and scope of the power of section 29(2) of the Rent Act.
We may mention that in Gunda lapalli Rangamannar Chetty vs Desu Rangiah and others, A.I.R. 1954 Madras 182, Subba Rao, J. as the learned Chief Justice then was, held that there cannot be a subletting, unless the lessee parted with legal possession.
The mere fact that another is allowed to use the premises while the lessee retains the legal possession is not enough to create a sub lease.
In the light of the aforesaid principles and the facts that have emerged, we are of the opinion that the High Court exceeded its jurisdiction under section 29(2) of the Rent Act.
We are further of the opinion that the Court of Small Causes was right in the view it took and it was a possible view to take.
In the result the appeal is allowed and the judgment and order of the Gujarat High Court dated 21st of August, 1979 are set aside.
The order and judgment of the Court of Small Causes Ahmedabad dated 18th of August, 1977 are restored.
The suit for possession is accordingly dis missed.
The appellant herein is entitled to the costs throughout.
P.S.S. Appeal allowed.

summary:
Sub section (2) of section 29 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, as it stood at the relevant time, barred further appeal against any decision in appeal under sub section
(1), and instead conferred revisionary powers on the High Court in such a case.
The appellant tenant was a partner in firm 'A ' which was carrying on business of manufacturing cloth in the suit premises.
That business was closed on October 4, 1960 and a new firm 'B ' came into being to run the business in manufac turing and selling neon sign tubes.
On October 13, 1960 a partnership deed was executed by six persons as partners of the new firm.
The document was silent as to where the busi ness was started.
On or about October 24, 1960 another partnership deed was executed by these six persons and the appellant and his father with an agreement to share only profits to the extent of 3 paise in a rupee.
After the death of the appellant on February 1, 1961 a new partnership deed was executed by the remaining seven partners with the same terms and conditions.
The respondent landlord filed eviction suits against the appellant defendant alleging that the premises which were leased to the appellant for manufacturing cloth in the name of firm 'A ' had been unlawfully sublet in major part to defendants 2 to 5 who were running business in partnership for manufacturing neon signs.
The appellant contended that firm 'A ' was not the tenant of the suit premises, that his father was the original tenant with whom he had joined in business as a partner in firm 'A ', that the suit premises were to be used for business and he 290 could use it for any business, that he had joined firm 'B ' in partnership, that the suit premises was with him and defendants 2105 had not acquired any tenancy rights in the suit premises, and that lie had filed a civil suit to dis solve the partnership, and to take account which was later decreed in his favour and affirmed in appeal.
The trial court held that there was unlawful subletting, and decreed the suit for possession.
The appellate court, Court of Small Causes, found that the appellant was only carrying on the business in partnership with defendants 2 to 5 in the name of firm 'B ' in the suit premises, and held that there was no subletting, change of user, and breach of terms of tenancy.
The High Court in revision on a reapprais al of evidence took the view that the partnership was a camouflage and was never acted upon, and in fact and in reality the partnership firm was a sub tenant of the appel lant.
In the appeal by special leave it was contended for the appellant that there was a genuine partnership which was acted upon and this finding of the appellate court could not have been reversed by the High Court in revision under section 29(2) of the Act.
For the respondents it was contended that the original first partnership deed did not mention that the appellant or his father was a partner, that it was in the second partnership deed that the appellant and his father joined the firm, that there was a gap of time when there was user by the partnership firm of the premises in question when the appellant was not a member of the firm, which fact was not considered by the appellate court, and that the partnership deed was a camouflage.
Allowing the appeal, HELD: 1.
The High Court exceeded its jurisdiction under section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 in reversing the view of the appellate court.
[305BC] 2.1 The distinction between an appeal and revision is a real one.
A right to appeal carries with it a right of re hearing on law as well as fact, unless the statute confer ring the right to appeal limits the re hearing in some way.
The power to hear a revision is generally given to a superi or court to ensure that the principles of law have been correctly borne in mind, that the facts have been properly appreciated and a decision arrived at taking all material and relevant facts in mind, that the decision is such which a reasonable man could have arrived at and which does not lead to a miscarriage of justice.
[301H 302A; 303EF] 291 2.2 The Court must guard itself against permitting in the guise of revision substitution of one view where two views are possible and the appellate court has taken a particular view.
If a possible view has been taken, the High Court would be exceeding its jurisdiction to substitute its own view with that of the courts below because it considers it to be a better law.
The fact that the High Court would have taken a different view is wholly irrelevant.
Whether there was a partnership or not is a mixed question of law and fact, depending upon the varying circumstances in dif ferent cases.
[303FG; 304E] Hari Shankar vs Rao Girdhari Lal Chowdhiry, ; ; Puranchand vs Motilal, [1963] Suppl.
2 SCR 906; Krishnawati vs Hans Rai, ; ; Phiroze Bamanji Desai vs Chandrakant M. Patel & Ors., ; ; Bhai Chand Ratanshi vs Laxmishankar Tribhavan, [1982] 1 Rent Control Journal 242; M/s Kasturbhai Ramchand Panchal & Brothers and Others vs Firm of Mohanlal Nathubhai and Oth ers, and Punamchandra Revashankar Joshi vs Ramjibhai Maganlal.
7 Gujarat Law Reporter (1966) at page 807, referred to.
In the instant case, the 'Court of Small Causes consid ered the principles of law, evaluated the evidence and held that there was in fact and in law a partnership.
Such a view was not an impossible one or a perverse one.
Therefore, there was nothing that could be done about such a view within the ambit and scope of the revisional powers under section 29(2) of the Act and the High Court could not have substi tuted its own finding for the one reached by the appellate court.
[404H 305A; 304D] 3.
Whether the ingredients of partnership as embodied in the law of partnership were there or not in a particular case must be judged in the fight of principles applicable to partnership, that is (1) there must be an agreement entered into by all the persons concerned, (2) the agreement must be to share the profits of a business, and (3) the business must be carried ou by all or any of the persons concerned acting for all.
Sharing of profits and contributing to losses are not the only elements in a partnership, existence of agency is essential.
[296FG; 304G; 304E] Chimanram Motilal and Another vs Jayantilal Chhaganlal and another, AIR 1939 Bombay 410 and Mohammed Musa Sahib (dead) and Others vs N.K. Mohammed Ghouse Sahib and Another, , referred to.
In the instant case, judged by these principles it could not be said 292 unequivocally that there was no partnership.
The partnership deeds gave the appellant the right to share the profits ' and made him an agent for certain limited purposes of the firm and there was evidence that the partnership deeds were acted upon.
It is true that the bank accounts were not to be operated by the appellant, that he was to be given a fixed percentage of profit irrespective of profit and that he was not to share the losses.
There is nothing inherently illegal or improper in making provision of such a type.
In the eyes of law such a claim is really non sequitur or neutral prov ing neither the existence nor non existence of a genuine firm.
The appellant was to bring in his asset being the tenancy of the premises in question for the user of the partnership.
Debiting the fixed amount payable to the appel lant in the expenses account is also not inconsistent with partnership.
This is also not inconsistent with treating the rent of the firm in the context of the total expenditure of the firm.
There was evidence of a suit of dissolution of the partnership where none of the partners took the plea that it was a false or a fictitious document.
Though the decree in the dissolution suit was not binding in these proceedings inter se between the parties as partners, it is a piece of evidence which cannot be wholly ignored.
All these factors were present before the appellate court.
These were reap praised by the High Court.
[304G; 298A; 297B; 298C; 297C; 301A; 298B] 4.
The partnership firm was carrying on business in the premises in question since October 4, 1961.
If there was such a partnership firm of which the appellant was a partner as a tenant the same would not amount to subletting leading to forfeiture of the tenancy, for there cannot be a sublet ting, unless the lessee parted with the legal possession.
The mere fact that another person is allowed to use the premises while the lessee retains the legal possession is not enough to create a sublease.
[294FG; 305B] Madras Bangalore Transport Co. (West) vs Inder Singh and others, ; Mehta Jagjivan Vanechand vs Doshi Vanechand Harakhchand and others, (AIR 1972 Gujarat 6) and Gundalapalii Rangamannar Chetty vs Desu Rangiah and others, (AIR 1954 Madras 182), referred to.