judgement:
ivil Appeal No. 1262 (N) of 1978.
Appeal by Special leave from the Judgment and Order dated the 4th July, 1978 of the Bombay High Court (Nagpur Bench) in Special Civil Application No. 1957 of 1977.
G. L. Sanghi, B. Datta, V. A Boby Shyam Mudaliar and B. P. Singh for the Appellant.
B. R. Agarwal.
P. G. Gokhale and Miss Vijayalakshmi for the Respondent.
The Judgment of the Court was delivered by DESAI, J.
Appellant Shri Mansaram son of Shri Chanduram Sharma was serving in the telephone office at Nagpur and was thus 142 holding an office of profit under the Union of India.
He took on lease premises on a monthly rent of Rs. 75 per month, more particularly described in the application made to the House Allotment Officer, Nagpur by first respondent Shri section P. Pathak, from the then owner of the premises one Shri Basantrai Sharma.
He continued to be in possession even after his retirement from service in 1967.
Shri Basantrai Sharma died and there is a dispute between respondents 3 and 4 and Shri Prabhakar about succession to the estate of the deceased Shri Basantrai Sharma.
Respondents 3 and 4 claimed to be the legatees under a will of deceased Shri Basantrai Sharma.
Respondent No. 1 Shri section P. Pathak made an application to House Allotment Officer, Nagpur registered as Miscellaneous Case No. 51/A 71(2)/76 77 against the present appellant Mansaram alleging that the appellant had occupied the premises involved in the dispute in contravention of sub cl.
(2) of Clause 22 of the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949 ( 'Rent Control Order ' for short), in that he occupied the premises to which Chapter III of the Rent Control Order applies without obtaining an order under sub cl.
(1) of Clause 23 or Clause 24 or without an assurance from the landlord that the premises are being permitted to be occupied in accordance with sub cl.
(2) of Clause 23.
To this petition, respondent 4 Smt.
Usha Rani N. Sharma was also impleaded as a respondent but after having once appeared through advocate, she did not prefer to remain present along with her counsel and the House Allotment Officer proceeded against her ex parte.
In the application made by Shri section P. Pathak, Ist respondent on December 7, 1976, it was in terms stated that the appellant Shri Mansaram Sharma was a Government servant employed in the telephone department at Nagpur and the appellant has now retired from service and therefore, is not entitled to retain the demised premises.
It was further alleged that the former owner of the premises Shri Basantrai Sharma has died.
The premises have been inherited by respondent 4 Smt.
Usha Rani N. Sharma and she and the tenant Mansaram Sharma have conspired together and are violating the provision of law by letting Shri Mansaram Sharma to continue to live in the premises.
It was further alleged that the appellant Shri section P. Pathak was badly in need of premises and therefore, the premises may be allotted to him.
Appellant Shri Mansram Sharma appeared and filed a written statement inter alia contending that he occupied the premises on the assurance given by the then landlord Shri Basantrai Sharma that 143 the house is being permitted to be occupied in accordance with sub cl.
(2) of Clause 23.
It was further contended that in a proceeding under the Rent Control Order, that late Shri Basantrai Sharma, the deceased landlord, had sought possession of the premises on the ground of bona fide personal requirement but he had lost the same.
It was further alleged that Shri section P. Pathak is a near relation of Shri Basantrai Sharma and that he has been put forward by Smt.
Usha Rani N. Sharma for seeking a collusive order.
It was further alleged that it is incorrect to say that he occupied the house under any allotment order.
It was further stated that since his retirement in July, 1967, he has been accepted as tenant and therefore, no proceeding can be taken against him under Clause 28 of the Rent Control Order for alleged contravention of clause 22.
The House Allotment Officer held that Shri Basantrai Sharma let out the premises to the appellant in the year 1954 in contravention of clause 22(1) (b) of the Rent Control Order and the appellant occupied the premises in contravention of clause 22(2) of the Rent Control Order and therefore, he was liable to be evicted under clause 28.
It was further held that the appellant had occupied the premises when he was holding an office of profit under the Union of India and now that he has retired, he is not entitled to continue in the premises and therefore, also he is liable to be evicted.
Accordingly, the House Allotment Officer by his order dated November 2, 1977 gave a direction to the appellant to vacate the premises within a fortnight from the communication of the order and deliver the possession of the premises to Smt.
Usha Rani N. Sharma failing which action will be taken under clause 28(1) of the Rent Control Order.
Appellant filed a Special Civil Application No. 1957 of 1977 before the Nagpur Bench of the Bombay High Court.
A learned Single Judge dismissed the petition in limine.
Hence this appeal by special leave.
At the outset, we must confess that the learned Single Judge was completely in error injecting the petition under article 227 of the Constitution in limine because various points raised by the appellant are such that atleast a reasoned decision by the High Court was a must or atleast a speaking order briefly showing why these contentions did not find favour with the High Court.
At one stage, we were toying with the idea to remit the matter to the High Court but 144 that would merely be further delaying the already over delayed proceedings.
Order 22 of the Rent Control Order reads as Under: "22(1) Every landlord of a house situated in an area to which this Chapter extends, shall (a) within seven days from the date of the extension of this chapter, if the house is vacant on such date; or (b) within seven days from the date on which the landlord becomes finally aware that the house will become vacant or available for occupation by himself or for other occupation on or about a specified date; give intimation of this fact to the Collector of the district in which the area is included or such other officer as may be specified by him, in the Form given in the Schedule appended to this Order, and shall not let or occupy the house except in accordance with sub clause (2) of clause 23." (2) No person shall occupy any house in respect of which this chapter applied except under an order under sub clause (1) of clause 23 or clause 24 or on an assurance from the landlord that the house is being permitted to be occupied in accordance with sub clause (2) of clause 23." Clause 23 provides that within fifteen days from the date of receipt of intimation of vacancy under Clause 22, the Collector may order the landlord to let the vacant premises to any person holding an office of profit under the Union or the State Government or to any person holding a post under the Madhya Pradesh Electricity Board or to displaced person or to an evicted person and thereupon not withstanding any agreement to the contrary, the landlord shall let the house to such person and place him in possession thereof immediately, if it is vacant or as soon as it becomes vacant.
There is a proviso to clause 23 which provides that simultaneously while giving intimation of the vacancy, if the landlord intimates to the Collector that he needs the house which has fallen vacant or is likely to fall vacant for his occupation, the Collector shall, if satisfied after due enquiry that the house is so needed, permit the landlord 145 to occupy the same.
This proviso is not relevant for the present purpose.
Sub clause (2) of Clause 23 provides that if no order is passed and served upon the landlord within the period specified in sub clause (1), he shall be free to let the vacant house to any person.
Clause 25 provides that where a person is allotted the premises and is put in possession thereof by an order under clause 23 or 24 A, his tenancy shall stand terminated amongst others on the date from which he ceases to hold an office of profit under Union or a State Government etc.
and such person shall vacate such premises within seven days of such date and the landlord and the tenant shall give the intimation about the same as prescribed in clause 22 to the Collector in respect of such premises.
There is a proviso which confers power on the Collector to extend the tenancy by a period not exceeding four months.
Clause 28 confers power on the Collector to effectively carry out the duty and obligation cast on him under Chapter III.
Clause 28 reads as under: "28.(1) The Collector may take or cause to be taken such steps and use or cause to be used such force as may, in his opinion, be reasonably necessary for the purpose of securing compliance with, or for preventing or rectifying any contravention of this Order or for the effective exercise of such power.
" The relevant provisions noticed hereinbefore will show that the landlord is under a statutory duty to intimate the existing or impending vacancy in the premises of which he is the landlord to the Collector (clause 22(1)).
The object underlying the provision is to make available residential accommodation to the Collector for allotting the same to a specified class of persons set out in clause 23.
This class comprises any person holding an office of profit under the Union or State Government or any person holding a post under the Madhya Pradesh Electricity Board, or a displaced person or an evicted person.
The Collector can allot the premises in respect of which he has received an intimation of vacancy under clause 22, to anyone belonging to the specified class and none else.
The very enumeration of the class would show that these are persons who cannot be left to the vagaries of the law of demand and supply of residential accommodation and they are required to be assisted in this behalf for efficient performance of public service or one who is roofless on account of being a displaced person or evicted person.
It may be that at any given point of time, no one from class for 146 whose benefit power is conferred on the Collector to allot vacant premises may be on the waiting list and therefore, sub clause (2) of clause 23 permits the landlord to let out such premises in respect of which he has intimated a vacancy to any person if within fifteen days from the date of intimation of vacancy to the Collector, an order of allotment is not served upon the landlord.
As a sequel to the right to obtain allotment on the ground of being holder of office of profit under Union or State Government a corresponding obligation is cast upon such person to vacate the premises as soon as he ceases to hold office or the post which enabled him to obtain the order of allotment.
To give full effect to these provisions, power is conferred on the Collector to take appropriate action to enforce provisions of clauses 22 to 27.
The application made by Ist respondent Shri section P. Pathak on December 7, 1976 to the House Allotment Officer complained of appellant not vacating the premises even though he has ceased to hold the office of profit.
There was not the slightest complaint that when the appellant entered the premises in 1954, either he did it under an order of allotment made by the Collector or surreptitiously or in league with the then landlord Shri Basantrai Sharma or in violation of the mandatory requirement of Clause 22.
Yet the House Allotment Officer proceeded to enquire as to whether clause 22(1) (b) and 22(2) were contravened when the appellant entered the premises in 1954.
The first question that should engage our attention is whether the House Allotment Officer was right in holding that there was any contravention of clauses 22(1) (b) and 22(2) of the Rent Control Order at the time when appellant entered the premises in 1954.
It is necessary to focus attention on the contention of the appellant in this behalf.
He contended in the written statement that he entered the premises on an assurance from the landlord that the premises were being permitted to be occupied in accordance with sub clause (2) of clause 23, which permits the landlord to let out the premises to whomsoever he considers proper if he has not received an allotment order from the Collector within fifteen days from the date of the receipt of the intimation of vacancy under clause 22.
No record was produced by the applicant before the House Allotment Officer whether Shri Basantrai Sharma, who was then the landlord and the owner of the house intimated to the Collector that a portion of the house which was then in his occupation was intended to be let out.
There is not one word in the order of the 147 House Allotment Officer as to how and in what circumstances Shri Basantrai Sharma, the then owner let out the premises to the appellant.
If a landlord assures an incoming tenant that he has complied with the provisions of clause 22, the tenant can enter the premises without being charged for having contravened sub clause (2) of clause 22.
The legal liability of giving intimation of vacancy is squarely on the landlord as provided by clause 22.
If the landlord has given intimation of vacancy under clause 22 and the statutory limit of 15 days for making an allotment order has expired, the landlord on his own can proceed to let out the premises in respect of which he has sent the intimation of vacancy to anyone he chooses to accept as tenant.
In such a situation, the only duty cast on the tenant is to seek an assurance from the landlord that the premises are being permitted to be occupied in accordance with sub clause (2) of clause 23.
The appellant specifically contended that he entered the premises on such an assurance from the landlord.
In this state of pleading, it was incumbent upon the House Allotment Officer to enquire whether deceased Basantrai Sharma had given intimation of vacancy and whether any allotment order was issued within the period of 15 days from the date of the receipt of the intimation of it.
If it was found that deceased Basantrai Sharma had given an intimation of vacancy and that no allotment order was issued within 15 days from the receipt of the same and that he gave an assurance to the appellant that the premises are being permitted to be occupied in accordance with sub clause (2) of clause 23, obviously even if the quondam tenant occupied the premises without an allotment order, he could not be charged with contravention of sub clause (2) of clause 23.
Assuming that landlord Basantrai Sharma gave a false assurance in 1954 to the appellant that the landlord had sent an intimation of vacancy and that no allotment order is secured within fifteen days from the date of intimation of vacancy and accordingly false assurance was given, the tenant if he bona fide relied upon the assurance emanating from the landlord and is not shown to be in league with the landlord, he would none the less be protected and cannot be accused of entering premises in contravention of clause 23(2).
The House Allotment Officer has recorded no finding on this important point and therefore, on this short ground his order is liable to be set aside.
We however find a greater infirmity in the order of the House Allotment Officer.
In the absence of an allotment order being produced by the appellant, three possible surmises are permissible; 148 They are: (1) Shri Basantrai Sharma never sent the intimation of vacancy, (ii) that even though he did send the intimation of vacancy and yet he did not receive any allotment order within the prescribed period, and (iii) that he surreptitiously let out the premises to the appellant after giving him a false assurance that he has complied with clause 22.
If the allotment order was in fact issued, a copy of it would be with the appellant as well it must have been sent to the landlord.
There would be an office copy in the file of the case.
No such allotment order is forthcoming.
In the absence of an allotment order, before the appellant could be charged with contravention of clause 22(2), it was incumbent upon the House Allotment Officer to enquire whether Basantrai Sharma had sent any intimation of vacancy to the Collector as required by clause 22(1) (b).
If it was not sent, could his successor in interest take advantage of his own wrong when Smt.
Usha Rani N. Sharma who claims to be the inheritor of the premises deliberately remained absent to help the applicant Shri section P. Pathak, who is alleged to be a near relation of the husband of Smt.
Usha Rani N. Sharma and who is keen to enter the premises by alleging contravention of clause 22(1) (b) nearly 22 years before the commencement of the proceedings.
Further the tenant contended that deceased landlord gave him an assurance as required by clause 23(2).
In the light of this contention it was obligatory upon the landlord or his successor in interest to prove that no such assurance as claimed by the appellant was ever given to him.
Shri S.P. Pathak, the applicant claims to be a stranger.
Original landlord Basantrai Shrama was dead by the time the present proceedings commenced.
Her successor in interest Smt.
Usha Rani N. Sharma remained absent.
Appellant gave evidence that he was given the assurance that the premises were being let out to him in accordance with sub clause(2) of clause 23.
And sub clause(2) of clause 22 protects a tenant against charge of unauthorised occupation if he enters premises on the assurance as aforesaid as provided in clause 22(2).
The order made by the House Allotment Officer is conspicuously silent on this most relevant question why the allegation of assurance put forward by the appellant was not examined by him and why it was rejected sub silention.
The non application of mind by the quasi judicial authority to the most relevant point which goes to the root of the matter completely vitiates the order of the House Allotment Officer, because once the allegation of assurance canvassed for on behalf of the appellant is accepted, he is not liable to be evicted on the ground that he entered the premises in contravention of clause 22(2).
149 There is a still further infirmity in the order of the House Allotment Officer.
Admittedly, the appellant entered the premises in 1954.
He was then serving in the telephone department which would permit an inference to be drawn that he was holding an office of profit in the Union of India.
But in order to attract clause 25 of the Rent Control Order which obligates such holder of the office of profit to vacate the premises on his ceasing to hold the office of profit, it must be shown that he entered the premises under an order of allotment made by the Collector either under clause 23 or clause 24A. Existence of an order of allotment under clause 23 or clause 24A in favour of a person holding an office of profit under the Union of India or the State Government is a sine qua non before the obligation under clause 25 can be fastened upon him to vacate the premises on ceasing to hold the office of profit which enabled him to get an order of allotment in his favour.
In the absence of an allotment order, it is not open to the House Allotment Officer to draw an inference that the premises were allotted to the appellant because he was holding an office of profit.
If there is no order of allotment issued to the appellant on the ground that he is holding an office of profit.
The House Allotment Officer had no jurisdiction to call upon him to vacate the premises on the short ground that he has ceased to hold the office of profit.
The House Allotment Officer has in terms held that as the appellant has retired in 1967, and therefore he is not entitled to continue to occupy the premises.
This line of reasoning proceeds on the assumption that there was initially an order of allotment in favour of the appellant on the ground that he was holding an office of profit, the assumption being not borne out by the facts.
In the absence of an allotment order, the House Allotment Officer has no jurisdiction to call upon the appellant to vacate the premises on the short ground that he has ceased to hold the office of profit.
What is stated hereinbefore is sufficient to quash and set aside the order of the House Allotment Officer.
However, there is one more aspect of the matter which we cannot overlook.
The appellant entered the premises in 1954.
There have been numerous proceedings between him and the late Basantrai Sharma who let out the premises to the appellant but no one ever raised the question whether the appellant had entered the premises in contravention of clause 22(2).
Till Basantrai Sharma died, no one raised the controversy about the entry of the appellant in the premises as being unauthorised or in contravention of clause 22.
Basantrai Sharma in his life time tried to 150 obtain possession of the premises from the appellant alleging grounds available to him under the Rent Control Order other than unauthorised entry.
This would permit an inference that Basantrai Sharma accepted the appellant as his tenant and his tenancy did not suffer from any infirmity.
After Basantrai Sharma died, her successor in interest one Smt.
Usha Rani N. Sharma did not raise any controversy about the occupation of the premises by the appellant.
One Mr. S.P. Pathak, a total stranger has come forward to complain about the unauthorised entry of the appellant in the premises.
The unauthorised entry according to the appellant was in the year 1954.
Appellant retired in 1967.
Basantrai Sharma was alive in 1967.
If appellant came into the premises because he was holding an office of profit, obviously Basantrai Sharma would not miss the opportunity to evict the appellant because he was otherwise also trying to do the same thing.
Rent was accepted without question from the appellant by Basantrai Sharma till his death and thereafter.
Could he be at this distance of time, thrown out on the ground that his initial entry was unauthorised.
To slightly differently formulate the proposition, could the initial unauthorised entry, if there be any, permit a House Allotment Officer, 22 years after the entry, to evict the appellant on the short ground that he entered the premises in contravention of clause 22(2) ? Undoubtedly, power is conferred on the Collector to see that the provisions of the Rent Control Order which disclosed a public policy are effectively implemented and if the Collector therefore, comes across information that there is a contravention, he is clothed with adequate power to set right the contravention by ejecting anyone who comes into the premises in contravention of the provisions.
But when the power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner.
Exercise of power in a reasonable manner inheres the concept of its exercise within a reasonable time.
Undoubtedly, no limitation is prescribed in this behalf but one would stand aghast that a landlord to some extent in pari delicto could turn the tables against the person a who was in possession for 22 years as a tenant.
In such a situation, even though the House Allotment Officer was to reach an affirmative conclusion that the initial entry 22 years back was an unauthorised entry and that failure to vacate premises till 9 years after retirement was not proper, yet it was not obligatory upon him to pass a peremptory order of eviction in the manner in which he has done.
In such a situation, it would be open to him not to evict the appellant.
In this connection, we may refer to Murlidhar Agarwal 151 and Anr.
vs State of U.P. & Ors.
wherein one Ram Agyan Singh who came into possession of premises without an order of allotment in his favour as required by sec.
7(2) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, was permitted to retain the premises by treating his occupation lawful and this court declined to interfere with that order.
No doubt it must be confessed that sec.
7A conferred power on the District Magistrate to take action against unauthorised occupation in contravention of the provisions of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, but there was a proviso to the section which enabled the District Magistrate not to evict a person found to be in unauthorised occupation, if the District Magistrate was satisfied that there has been undue delay or otherwise it is inexpedient to do so.
There is no such proviso to clause 28 which confers power on the Collector to take necessary action for the purpose of securing compliance with the Rent Control Order.
But as stated earlier, where power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner and the reasonable exercises of power inheres its exercise within a reasonable time.
This is too well established to need buttressing by a precedent.
However, one is readily available in State of Gujarat vs Patel Raghav Natha & Ors.
In that case Commissioner exercised suo motu revisional jurisdiction under sec.
211 of the Bombay Land Revenue Code which did not prescribe any period of limitation for exercise of revisional jurisdiction.
The Commissioner exercised revisional jurisdiction one year after the Collector made the order which was sought to be revised.
The High Court set aside the order of the Commissioner.
In the appeal by State of Gujarat, this Court declined to interfere holding inter alia that the revisional power in the absence of prescribed period of limitation must be exercised within a reasonable time and period of one year was held to be too late.
This aspect must be present to the mind of House Allotment Officer before just rushing in on an unproved technical contravention brought to his notice contrived by the successor in interest of the deceased landlord, and evicting the appellant 22 years after his entry and 9 years after his retirement on the short ground that his entry in the year 1954 was in contravention of clause 22(2).
Having examined all the aspects of the matter, we are satisfied that the order of the House Allotment Officer suffers from numerous 152 infirmities and is unsustainable and must be quashed and set aside as also the order of the High Court dismissing the Special Civil Application No. 1957 of 1977 preferred by the present appellant.
Accordingly this appeal succeeds and is allowed and the application made by the first respondent to the House Allotment Officer is dismissed with no order as to costs throughout.
H.L.C. Appeal allowed.

summary:
The appellant who had taken the premises in question on lease while he was serving as an employee of the Telephone Department, continued to be in possession of the same after his retirement in 1967.
Respondent No. 1 who was allegedly in need of accommodation, filed an application before the House Allotment Officer praying for allotment of the said premises in his favour on the ground that the appellant had occupied the premises in contravention of cl.
22(2) of the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949 and that respondent No. 4 who had inherited the premises from the original landlord was conspiring with the appellant by letting him continue to live in the premises.
Respondent No. 4, after having once appeared through advocate, withdrew from the proceedings.
The appellant contended that he had not contravened any provision of the Rent Control Order as he had occupied the premises on the assurance given by the then landlord that the house was being permitted to be occupied in accordance with cl.
23(2) thereof, that the deceased landlord who had tried to obtain possession of the premises during his lifetime on the ground of bona fide personal requirement had failed in the attempt and that he had been accepted as the tenant even after his retirement.
The House Allotment Officer rejected the contention and directed the appellant to deliver possession of the premises to respondent No. 4 holding that the appellant was liable to be evicted as the letting out of the premises to him by the landlord and his occupation of the same in 1954, were in contravention of cl.
22(1) (b) and cl.
22(2) respectively of the Rent Control Order and further, that having occupied the premises while holding an office of profit under the Union of India the appellant was not entitled to continue to remain in occupation of the premises after his retirement from service.
The High Court having dismissed in limine the Special Civil Application filed by him under article 227, the appellant approached this Court.
Allowing the appeal, HELD:1.
According to cl.
22(1) of the C.P. and Berar Letting of Houses and Rent Control Order, 1949, a landlord is under a statutory duty to intimate the Collector any existing or impending vacancy in the premises of which he is the landlord.
The object underlying the provision is to make 140 residential accommodation available to a specified class of persons mentioned in cl. 23 which includes a person holding an office of profit under the Union or State Government or a displaced or an evicted person.
The Collector can allot the premises in respect of which he has received an intimation of vacancy under cl. 22, to anyone belonging to this specified class and none else.
The very enumeration of the class would show that these are persons who cannot be left to the vagaries of the law of demand and supply of residential accommodation.
It may be that, at any given point of time, no one from the specified class may be on the waiting list, and therefore cl.
23(2) permits the landlord to let out such premises to any person if, after 15 days from the date of intimation of vacancy to the Collector, an order of allotment is not served upon the landlord.
As a sequel to the right to obtain allotment on the ground of being the holder of an office of profit under Union or State Government, a corresponding obligation is cast by cl. 25 upon such person to vacate the premises as soon as he ceases to hold the office or the post which enabled him to obtain the order of allotment.
The legal liability of giving intimation of vacancy is squarely on the landlord and if he has given such intimation and the statutory limit of 15 days for making an allotment order has expired, the landlord can proceed to let out the premises to anyone.
In such a situation, the only duty cast on the tenant is to seek an assurance from the landlord that the premises are being permitted to be occupied in accordance with cl.
23(2).
[145 E H; 146 A B; 147 B C] In the instant case the order of the House Allotment Officer is conspicuously silent on the most relevant question why the allegation of assurance put forward by the appellant was not examined by him and why it was rejected sub silentio.
It was incumbent upon him to enquire whether the deceased landlord had given intimation of vacancy and whether any allotment order had been issued within the period of 15 days from the date of receipt of such intimation.
The non application of mind by the quasi judicial authority to this relevant point goes to the root of the matter and vitiates the order.
It was obligatory upon respondent No. 4, who was the successor in interest of the landlord, to prove that no such assurance had ever been given to the appellant.
Instead, the respondent No. 4 remained absent.
Even assuming that the landlord gave a false assurance in 1954 to the appellant, if the appellant bona fide relied upon such assurance and it was not shown that the appellant was in league with the landlord, he cannot be accused of entering the premises in contravention of cl.
23(2).
The High Court was in error in rejecting in limine the petition under article 227.
The points raised by the appellant merited a reasoned decision or, at least, a speaking order briefly indicating why the contentions put forward by the appellant did not find favour with the High Court.
[148 G; 147 D; 148 H; E; 147 F G; 143 G H] 2.
In order to attract cl. 25 which obligates the holder of an office of profit to vacate the premises on his ceasing to hold the office of profit, it must be shown that he entered the premises under an order of allotment made by the Collector either under cl. 23 or under cl.
24 A. [149 B] In the instant case, in the absence of an allotment order, it was not open to the House Allotment Officer to draw an inference that, the premises were allotted to the appellant because he was holding an office of profit.
[149 D] 141 3.
Where power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner and the reasonable exercise of power inheres its exercise within a reasonable time.
[150 F] In the instant case, power is conferred on the Collector by cl. 28 to see that the provisions of the Rent Control Order, which disclose a public policy, are effectively implemented and, therefore, if he comes across information that there is a contravention, he is clothed with adequate power to set right the contravention by ejecting anyone who comes into the premises in contravention of the provisions.
No limitation prescribed in this behalf.
But, even if the House Allotment Officer were to reach the affirmative conclusion that the initial entry of appellant into the premises 22 years back was an unauthorised entry and that failure to vacate premises till nine years after retirement was not proper, yet it was not obligatory upon him to pass a peremptory order of eviction in the manner in which he has done.
It was open to him not to evict the tenant.
[150 E F; G H] Murlidhar Aggarwal & Anr.
vs State of U.P. & Ors.
, ; and State of Gujarat vs Patel Raghav Natha and Ors.,[1970] 1 S.C.R. 335; referred to.
The appellant had entered the premises in 1954 and there had been numerous proceedings between him and the deceased landlord; but no one had ever raised the question whether the appellant had entered the premises in contravention of cl.
22(2).
This would permit an inference that the then landlord had accepted the appellant as his tenant and his tenancy did not suffer from any infirmity.
Respondent No. 4 who is the successor in interest of the deceased landlord did not raise any controversy about the occupation of the premises by the appellant and rent was accepted without question before and after the death of the original landlord.
[149 G H; 150 A C]


judgement:
N: Criminal Appeal No. 187 of 1982.
Appeal by special leave from the judgment and order dated 7.10.81 of the Punjab and Haryana High Court in Criminal No.466 DB/81 .
N.R. Agarwala Amicus Curiae for the Appellant.
Ashwani Kumar and D.D. Sharma for the Respondent.
The Judgment of the Court was delivered by CHANDRACHUD, C.J.
The appellant, Prem Thakur, was convicted by the learned Sessions Judge, Rupnagar, under sections 824 302 and 201 of the Indian Penal Code and was sentenced to death for the former offence.
The conviction and sentence having been upheld by the High Court of Punjab and Haryana, the appellant has filed this appeal by special leave.
The charge against the appellant is that he committed the murder of five co labourers on the night between the 8th and 9th November, 1980 in the village of Rolu Majra.
The case of the prosecution is that the appellant came to India from Nepal in search of work along with his companion workers and a few others.
They worked with one Mohinder Singh for about 14 days for which they were paid a sum of Rs. 2,900.
The appellant and his co workers spent a sum of Rs. 800 therefrom and the balance of Rs. 2100 was kept with Rama Nand who was one of the five coworkers of the appellant.
The appellant and his companions thereafter went to the village of Rolu Majra where they worked in the field of Ujjagar Singh.
On the evening of the day following Diwali, Ujjagar Singh saw the accused cooking meals for himself and his five companions.
When Ujjagar Singh went to the field next morning at 8 00 a.m, he noticed that smoke was coming out of the pit of his tubewell.
When he peeped into the well he saw five dead bodies smouldering.
Ujjagar Singh lodged information of the offence with A.S.I. Jarnail Singh.
The post mortem examination on the five dead bodies revealed several ante mortem injuries, most of which were in the nature of lacerated wounds.
Since Ujagar Singh had seen the appellant in the company of five deceased persons and the appellant was not to be seen anywhere, the suspicion of the police naturally fell upon him.
The case of the prosecution is that on December 1, 1980, the appellant was arrested while he was working near the tubewell of Sohan Singh.
There is no direct evidence to connect the appellant with the five murders.
In support of the charges levelled against him, the prosecution relied upon circumstantial evidence which consisted of: (i) motive for the offence; (ii) the fact that the appellant was seen last in the company of the deceased on the evening preceding the discovery of the dead bodies; (iii) the fact that the accused had absconded; (iv) the extra judicial confession of the appellant; (v) the recovery of a 'Tangli ' in pursuance of the statement made by the appellant; (vi) the recovery of the dead bodies from the pit near the tubewell of Ujjagar Singh; and (vii) 825 false statement made by the appellant to Ram Ishar, the son of one of the deceased, Rama Nand, that the latter would return to the village after Puran Mashi.
The learned Sessions Judge accepted some of these circumstances as proved and convicted the appellant for the five murders on the basis of those circumstances.
The High Court has relied upon three circumstances, namely, (i) motive, (ii) the fact that the appellant was seen last in the company of the deceased and (iii) the conduct of the appellant after the occurrence.
As regards motive, the High Court observes in its judgment that since no money was found on the dead bodies, theft was obviously the motive for the crime.
That may be so, but we are unable to understand how the fact that theft was the motive for the crime can connect the appellant with the crime.
It is quite likely that whosoever committed the five murders robbed the victims of the money which they had on their person, but that cannot necessarily lead to the conclusion that it is the appellant who robbed the deceased of their money.
The fact that a fairly large sum was paid to the appellant and his co workers by way of their wages would be known to others apart from the appellant and his companions.
No part of the money was traced to the appellant and therefore, we are unable to accept that the accused can be connected with the crime merely because the motive for the crime was theft.
The circumstances that the appellant was last seen in the company of the deceased can be accepted as proved but no inference can arise therefrom that the appellant had committed their murder.
The appellant was working with the deceased and others and there was nothing unnatural.
in the appellant being in the company of his companions on the evening before the murders were committed.
In so far as the allegation that the accused had absconded is concerned, it is not easy to rely upon that circumstance as leading to the conclusion that he had made himself scarce in order to conceal his presence.
The story of the prosecution that he was 3 arrested in Punjab itself has been disbelieved by the High Court according to which, the appellant was brought from Nepal by the team of Investigating officers.
The appellant belongs to Nepal and if he was found in Nepal going about openly, it is difficult to accept the charge that he had absconded to Nepal.
826 The circumstance that the appellant told Ram Ishar that the latter 's father Rama Nand would return to the village after Puran Mashi cannot clinch the issue unless one stars with the presumption that the appellant had committed the crime.
But then one cannot put the cart before the horse.
At the highest, what the appellant said to Ram Ishar may raise a cloud of suspicion but nothing more.
We have considered carefully the entire evidence in the case and the various facts attendant upon the five murders.
It seems to us quite impossible to believe that the crime was committed in the manner alleged by the prosecution or that the appellant could possibly have committed it in the circumstances alleged.
It is said that the five deceased persons were administered liquor, that after drinking liquor they lapsed into a deep spell of sleep, that while they were asleep they were killed, that they were carried one by one to A the bottom of a 35 ft. tubewell and that thereafter, they were set on fire.
The post mortem notes and the medical evidence show that the liquor consumed by the deceased could not have produced unconsciousness How it could induce such stupor verging upon hypnosis is more than one can reasonably imagine.
The prosecution case requires for its success the incredible assumption that the five persons done to death by a single individual were under such a heavy spell of sleep that none of them woke up when the others were attacked.
When the first of the five victims was attacked, he would have shrieked or shouted and thereby the others would be aroused from their sleep.
They were young, able bodied labourers.
It puts quite some strain on our credulity to accept that a single person could have finished off his five companions in the fiction like manner alleged by the prosecution.
The High Court could not but be aware of the principle that in a case which depends wholly upon circumstantial evidence, the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged.
That is to say, the circumstances relied upon as establishing the envolvement of the accused in the crime must clinch the issue of guilt.
Very often, circumstances which establish the commission of an offence in the abstract are identified as circumstances which prove that the prisoner before the court is guilty of the crime imputed to him.
An a priori suspicion that the accused has committed the crime transforms itself into a facile belief 827 that it is he who has committed the crime.
Human mind plays that A trick on proof of the commission of a crime by resisting the frustrating feeling that no one can be identified as the author of that crime.
In the case before us, there is no doubt that five persons were murdered.
Unquestionably, every effort had to be made to find out who committed those murders.
But the duty is not done by holding someone or the other guilty somehow or other.
In the instant case, the circumstances attendant upon the incident militate entirely against the conclusion that the five murders were committed by the appellant.
The very pattern of the crime belies that conclusion.
We are unable to share the High Court 's view that the evidence showing "that the appellant was present with the deceased persons on the evening of November 8, 1980 and he was then missing from there on the next morning proves the offences alleged against the appellant beyond any shadow of doubt".
In support of its conclusion that the appellant had committed the murders, the High Court has even pressed into service the circumstances that the appellant was not present 'at the place from which the dead bodies were recovered" the next morning.
These are equivocal circumstances on which it is hazardous to base the conviction.
In the result we allow the appeal, set aside the conviction of the appellant on all the counts and the sentences imposed upon him including the sentence of death and acquit him of all the charges.
He shall be released forthwith.
P.B.R. Appeal allowed.

dataset_name: IN-Abs

summary:
The prosecution case against the appellant was that he, along with five workers migrated from Nepal and that at the time of occurrence all of them were working in Punjab as agricultural labourers.
Out of a large sum of money earned by them as wages they spent a part and the balance was left with one of the five deceased.
On the evening prior to the day of occurrence the appellant was found by the employer cooking food for himself and his companions but when he went to his field the following morning he noticed the five dead bodies of the co workers were smouldering in the pit of his tube well.
Post mortem examination of the dead bodies revealed several ante mortem injuries, most of which were lacerated wounds.
Prom that day onwards the apellant was found missing.
The trial Court, accepting the circumstantial evidence, convicted and A sentenced the appellant to death.
The High Court affirmed the conviction on three grounds: (i) since the money was not found on the person of the deceased with whom it was kept, the motive was theft; (ii) the appellant was last seen in the company of all the deceased and (iii) the appellant absconded thereafter to conceal his presence.
Allowing the appeal, ^ HELD: It is impossible to believe that the crime was committed in the manner alleged by the prosecution or that the appellant could possibly have committed it in the circumstances alleged.
[826 C D] In a case which depends wholly upon circumstantial evidence, the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged.
That is to say, the circumstances relied upon as establishing the involvement of the accused in the crime must clinch the issue of Built.
Very often, circumstances which establish the commission of an offence in the abstract are identified as circumstances which prove that the prisoner before the Court is guilty of a crime imputed to him.
An a priori suspicion that the accused has committed 823 the crime transforms itself into a facile belief that it is he who has committed the crime.
Human mind plays that trick on proof of the commission of a crime by resisting the frustrating feeling that no one can be identified as the author of that crime.
[826 G H] In the instant case the circumstances attendant upon the incident militate entirely against the conclusion that the five murders were committed R by the appellant.
Tho fact that the assailant robbed the victims of the mopey cannot necessarily lead to the conclusion that it was the appellant who robbed them of their money.
That the appellant and his co workers were paid a fairly large sum of money was known to others apart from the appellant and his Companions.
No part of the money was traced to the appellant and therefore be could not be connected with the crime.
[825 C E] Assuming that the deceased were administered liquor, medical evidence did not know that tho liquor consumed would have induced such stupor verging upon hypnosis It is also incredible that the five persons done to death by a single individual were under such a heavy spell of sleep that none of them woke up when the other or others were attacked.
[826 D F] The fact that the appellant was last seen in the company of the deceased and that he was not present at the place from which the dead bodies were recovered the next morning are equivocal circumstances on which it is hazardous to base the conviction.
[827 D] The circumstance that the appellant absconded from the place of occurrence does not lead to the conclusion that he had made himself scarce in order to conceal his presence.
If he was found by the team of investigating officers in Nepal going about openly, it is difficult to hold that he had absconded to Nepal.
[825 G H]


judgement:
: Criminal Appeal No. 92 of 1981.
From the judgment and order dated the 16th January, 1980 of the High Court of Gujarat at Ahmedabad in Special Criminal Application No. 186 of 1979.
J.L. Nain and R.N. Poddar for the Appellant.
O.P. Rana (amicus curiae) for the respondent.
The Judgment of the Court was delivered by BAHARUL ISLAM, J.
This appeal by special leave is by the State of Gujarat and is directed against the judgment and order of the Gujarat High Court quashing the order of detention passed by the appellant against the respondent.
The facts material for the purpose of disposal of this appeal and not disputed before us may be stated in a narrow compass.
In exercise of powers conferred on it by sub section (1) of Section 3 of the (hereinafter called 'the Act '), the appellant passed the order of detention dated 7th May 1979 against the respondent on the grounds that the respondent and three others, namely, Hasan Haji Ismail Subhania, Gulam Hussain Hasan Subhania and Salemamad Allarakha Jasraya were found in a trawler containing eight packages with 4,645 contraband wrist watches valued at Rs. 10,48,700.00.
The petitioner and Salemamad were members of the crew.
Hasan Haji was the owner of the trawler and his son, Gulam Hussein, was the tindal of the, vessel.
They were interpreted by the Customs Authorities who seized the contraband goods and the trawler.
The petitioner made a statement on 21st January, 1979 before the Customs officer, admitting that he was a member of the crew but denied any knowledge of the contraband goods.
He stated that he was engaged as a member of the crew by the owner on the daily wage basis at the rate of Rs. 10.00 per day.
It was also stated in the grounds that in the statement dated 21st January, 1979, the respondent admitted that he was the tindal of the vessel 'Shahe Nagina ' which had been seized by the Customs officer in 1977 for smuggling wrist watches and that a penalty of Rs. 5,000.00 was levied against him.
The respondent moved the High Court of Gujarat.
A Division Bench of the High Court by the impugned order quashed 742 the order of detention on the ground that the respondent at the time of joining the vessel as a member of the crew had no "full knowledge that the vessel was to be used for smuggling activity".
The High Court held, "the above material on the record, therefore, was not sufficient for reaching a genuine satisfaction that the petitioner was engaged in smuggling activity and it was necessary to detain him with a view to preventing him from indulging in that activity in future" (emphasis added).
According to the High Court, "the satisfaction reached by the detaining authority cannot be said to be genuine on the material which was placed before the detaining authority".
At the outset Mr. Rana, appearing for the respondent as amicus curiae, raises a preliminary objection The objection is that in view of the fact that the maximum period of detention mentioned in Section 10 of the Act has expired, and as such the appeal has become infructuous.
It may be mentioned, to appreciate the preliminary objection, that the order of detention against the respondent was made on 7th May, 1979 and this appeal was being heard on 15th September, 1981, which was beyond two years.
Section 10 of the Act is in the following terms: "The maximum period for which any person may be detained in pursuance of any detention order to which the provisions of section 9 do not apply and which has been confirmed under clause (f) of section 8 shall be a period of one year from the date of detention or the specified period, whichever period expires later, and the maximum period for which any person may be detained in pursuance of any detention order to which the provisions of section 9 apply and which has been confirmed under clause (f ) of section 8 read with sub section (2) of section 9 shall be a period of two years from the date of detention or the specified period, whichever period expires later.
" We have not been told by Mr. Rana whether the first part or the second part of Section 10 applies to the facts of the case.
He has made the submission on the assumption that the second part of Section 10 applies and the period of two years prescribed by the second part already expired.
In our opinion, the submission has no force.
In Section 10, both in the first and the second part of the section, it has been expressly mentioned that the 743 detention will be for a period of one year or two years, as the case may be, from the date of detention, and not from The date of the order of detention.
If the submission of learned counsel be accepted, two unitended results follow: (1) if a person against whom an order of detention is made under Section 3 of the Act, he can successfully abscond till the expiry of the period and altogether avoid detention; and (2) even if the period of detention is interrupted by the wrong judgment of a High Court, he gets the benefit of the invalid order which he should not.
The period of one or two years, as the case may be, as mentioned in Section 10 will run from the date of his actual detention, and not from the date of the order of detention.
If he has served a part of the period of detention, he will have to serve out the balance.
The preliminary objection is overruled.
Now to turn to the merit.
The order of High Court is clearly erroneous.
The High Court has misdirected itself to its jurisdiction to inquire into the order of detention by an authority.
The High Court, accepting the contention of the counsel of the detenu, before it has held that there was no material on record to prove knowledge of the detenu with the contraband goods in the vehicle.
By implication, the High Court has erroneously imported the rule of criminal jurisprudence that the guilt of an accused must be proved beyond reasonable doubt to the law of detention.
The High Court in its writ jurisdiction under Article 226 of the Constitution is to see whether the order of detention has been passed on any materials before it.
If it is found that the order has been based by the detaining authority on materials on record, then the Court cannot go further and examine whether the material was adequate or not, which is the function of an appellate authority or Court.
It can examine the material on record only for the purpose of seeing whether the order of detention has been based on no material.
The satisfaction mentioned in Section 3 of the Act is the satisfaction of the detaining authority and not of the Court.
The judgment of the High Court, therefore, is liable to be set aside.
We set aside the order of the High Court and allow the appeal.
G S.R. Appeal allowed.

summary:
Allowing the State appeal, the Court ^ HELD: 1.
In section 10 of COFEPOSA, both in the first and the second part of the section, it has been expressly mentioned that the detention will be for a period of one year or two years, as the case may be, from the date of detention and not from the date of the order of detention.
If the submission that the appeal has become infectious in view of the fact that the maximum period of detention mentioned in section 10 of the Act has expired, was accepted, two unintended results follow: (1) if a person against whom an order of detention is made under section 3 of the Act, he can successfully abscond till the expiry of the period and altogether avoid detention; and (2) even if the period of detention is interrupted by the wrong judgment of a High Court, he gets the benefit of the invalid order which he should not.
The period of one or two years, as the case may be, as mentioned in section 10 will run from the date of his actual detention, and not from the date of the order of detention.
If he has served a part of the period of detention, he will have to serve out the balance.
[741 H, 742 A C] 2.
The High Court in its writ jurisdiction under Article 226 of the Constitution is to see whether the order of detention has been passed on any materials before it.
If it is found that the order has been based by the detaining authority on materials on record, then the Court cannot go further and examine whether r the material was adequate or not, which is the function of an appellate authority or Court.
It can examine the material on record only for the purpose of seeing whether the order of detention has been based on no material.
The satisfaction mentioned in section 3 of the Act is the satisfaction of the detaining authority and not of the Court.
[742 E F] 3.
By implication, the High Court has erroneously imported the rule of criminal jurisprudence that the guilt of an accused must be proved beyond reasonable doubt to the law of detention.
[742 D] 741


judgement:
Civil Appeal No. 3549 (NL) of 1982.
Appeal by Special leave against the Award passed by the Labour Court (I) Kanpur dated 16th December, 1980 in Adjudication Case No. 8 of 1980.
section Markandeya for the Appellants.
Hari Swarup, Manoj Swarup and Ms. Lalita Kohli for the Respondent.
The Judgment of the Court was delivered by VARADARAJAN, J.
This appeal by special leave is directed against the award of the Labour Court, Kanpur in Adjudication Case No. 8 of 1980 holding that the retirement of the second respondent Jag Dutt from 31.3.1979 is unjustifiable and directing his reinstatement with back wages with a right to work so long as he is physically fit.
The second respondent entered service as a coolie on 11.4.1945 under the then Kanpur Electricity Supply Corporation Limited.
No date of birth was mentioned in his service card and there was no age of retirement for employees in that concern.
That establishment was nationalised on 15.9.1947 and thereafter it became a department of the Government of Uttar Pradesh.
The new management Kanpur Electricity Supply Administration filled up the second respondent 's age as 20 years 9 months without asking him for any certificate regarding his date of birth.
His date of birth is 24.6.1924 and an entry about his date of birth has been made in the Police Station, Chawani Basti at the instance of the Chowkidar of that village.
The new management got its standing orders certified without making any provision 284 for age of retirement.
The State Government made it clear that the workmen to whom the applied would not be governed by the Civil Service (Classification, Control and Appeal) Rules.
The Electricity Board constituted under the took over the workmen of the erstwhile Kanpur Electricity Supply Administration from 1.4.1949 making it clear that their service conditions will not be adversely affected.
That position regarding the service conditions of the employees was reiterated in Government Order No. 3679 E/71 21 PB dated 1.4.1971 and the Electricity Department 's Chief Engineer 's letter dated 2.3.1972.
The initial condition was that the second respondent should work so long as he was physically fit to work without any age of retirement.
However, the Kanpur Electricity Supply Administration retired the second respondent from 31.3.1979 on the ground that he has completed 58 years.
This retirement is invalid for two reasons, namely that his date of birth is 24.6.1924 and that there is no age of retirement so far as employees like the second respondent who had joined service under the Kanpur Electricity Supply Corporation Limited are concerned.
The new management had allowed 19 named workmen to retire when they were 60 to 75 years old.
The second respondent has thus been retired not only before he completed 58 years, his date of birth being 24.6.1924 but also in contravention of his conditions of service, according to which there is no age of retirement.
This was the second respondent 's case before the Labour Court.
The defence of the appellant management was that though when the Electricity Board was constituted and the management of the Kanpur Electricity Supply Administration was taken over in 1948 no age of retirement was prescribed for the employees the Electricity Board framed regulations under s.79C of the subsequently prescribing the age of retirement as 58 years and 60 years and the second respondent was retired on 31.3.1979 under those regulations.
It is open in law for the Electricity Board to frame regulations prescribing the age of retirement of its employees even where initially there was no age of retirement, as has been held by the Allahabad High Court and this Court.
The second respondent 's retirement is valid and cannot be set aside.
The Labour Court found that the second respondent joined service as a cooly under the Kanpur Electricity Supply Corporation Limited on 11.5.1945 and he became the State Government 's employee on 16.9.1947 when that establishment was taken over by 285 Kanpur Electricity Supply Administration and the employees of that Administration became the employees of the State Electricity Board when it took over that Undertaking after that Board was constituted on 1.4.1959.
It was not disputed that by the Regulations framed under section 79C of the , age of retirement fixed at 58 or 60 years and that those Regulations were notified on 28.5.1972 under section 138B of the .
But the Labour Court found that even after the publication of those Regulations the new management made it clear to the employees by Government 's Order No. 3679 E/71 23 PB dated 1.7.1979 that even after absorption of the employees their old conditions of service would continue in the same way and that a similar assurance had been given to the second respondent by the documents marked as Ex.
B 9 to B 15 that the Regulations would not apply to him and he could work so long as he was physically fit without any age of retirement.
In this view the Labour Court held that the second respondent 's retirement from 31.3.1979 inspite of the fact that he is physically fit is invalid in law and it accordingly allowed the second respondent 's claim as mentioned above.
The Labour Court has not recorded any finding regarding the second respondent 's actual date of birth.
In this Court no argument was advanced by the learned counsel on either side on that question.
The only point argued before this Court by Mr. section Markendeya, learned counsel for the appellants and Mr. Hari Swarup, learned Senior counsel appearing for the second respondent was as to the binding nature of the Regulations framed by the Electricity Board under s.79C of the fixing age of retirement as 58 years in regard to workmen like the second respondent who were originally employees of the Kanpur Electricity Supply Corporation Limited.
By Order dated 3.10.1978 of the General Manager of the U.P. State Electricity Board in the department of Kanpur Electricity Supply Administration eleven employees including the second respondent were retired on attaining the age of superannuation with effect from 31.3.1979 on the basis that according to the Board 's records they were completing 58 years on that date.
There is no dispute that the Board has framed Regulations under s.79C of the fixing the age of retirement of employees like the second respondent at 58 years and that the Regulations have been notified under s.13B of the .
Mr. Hari Swarup admitted before us that the Regulations have statutory force.
The Member Secretary of 286 the U.P. State Electricity Board had informed the government employees whose Services had been lent to the Board on deputation that their salary, allowances and other conditions of service shall be governed by Regulations made by the Board under s.79C of the from time to time.
It is not disputed that the second respondent had thereafter exercised his option to serve in the U.P. State Electricity Board.
The second respondent is, therefore, bound by the Regulation by which the age of retirement has been fixed in regard to employees like him at 58 years.
A similar question arose before a Division Bench of the Allahabad High Court in Bhai Lal and another vs Superintending Engineer, Allahabad where it has been held as follows: "Once the regulations framed under s.79(c) of the have been notified by the State Government under s.13 B of the , the standing orders framed by the erstwhile licencee to the extent they concerned the subject dealt with by the regulations became ineffective and inoperative and that in respect of such matter, the right of the parties would be governed only by the regulation so notified.
In the circumstances even if it be a fact that the standing orders framed by the erstwhile licencee contained a clause specifying an age higher then 58 years, as age of superannuation for its employees, the employee would none the less, as provided in the notified regulation, be superannuated at the age of 58 years.
" A similar question arose before this Court in U.P. State Electricity Board and others vs Hari Shanker Jain and others to which two of us were parties.
There it has been held that the is a special law in regard to the matters enumerated in the schedule and the regulations made by the Electricity Board with respect to any of those matters are of no effect unless such regulations are either notified by the Government under s.13B or certified by the Certifying Officer under section 5 of the .
In regard to matters in respect of which regulations made by the Board have not been notified by the Governor or in respect of which no regulations have been made by the Board, the Industrial Employment (Standing 287 Orders) Act shall continue to apply.
In that case the regulation made by the Board with regard to the age of superannuation had been duly notified by the Government and it has been held that the regulation had effect notwithstanding the fact that it was a matter which could be the subject matter of standing orders the and that the respondents in that appeal had been properly retired when they attained the age of 58 years.
In view of the admitted fact that the regulations framed by the Board under s.79C of the have been notified by the Government under section 13B of the we hold that the second respondent is bound by those regulations in which the age of retirement has bean admittedly fixed at 58 years and that he has no reason to complain against his retirement on that basis with effect from 31.3.1979.
The appeal is accordingly allowed and the order of the appellant retiring the second respondent with effect from 31.3.1979 is upheld.
It is, however, made clear that the second respondent shall not be liable to refund any amount paid to him under orders of the Court pending these proceedings and that he is entitled to draw the sum of Rs. 2,000 which has been directed to be deposited towards his costs in this appeal.
P.B.R. Appeal allowed.

summary:
The respondent workman entered service as a coolie in 1945 under the Kanpur Electricity Supply Corporation Limited.
When the time the company had no rules as to the age of retirement for its employees and therefore his date of birth was not entered in the service card.
When the Corporation was nationalised the new management, without asking him as to his date of birth, showed his age as 20 years 9 months.
From the village records it was found that he was born on 24.6.1924.
Meanwhile, the new management got the Standing Orders certified without making any provision for the age of retirement.
When the Electricity Board constituted under the , took over the management of the Administration in 1949 it was made clear that conditions of service of workmen would not be adversely affected.
But on 31st January, 1979 the workman was retired from service on the ground that he had completed 58 years of age.
The workman complained that he was retired in contravention of his conditions of service according to which there was no age of retirement.
The labour court held that even after framing the regulations under section 79C of the , fixing the age of retirement at 58 and notifying them under section 13B of the Industrial Employment (Standing orders) Act, 1946, the new management made it clear to the employee that old service conditions of the employees would continue to operate and that a similar assurance was given to the respondent in writing that the new regulations would not apply to him.
In this view the respondent 's retirement was held to be invalid.
Allowing the appeal.
HELD: The workman is bound by the regulations fixing the age of retirement at 58 and therefore his retirement on attaining the age of superannuation was correct.
[287 C] The is a special law in regard to matters enumerated in the schedule.
The regulations made by the Electricity Board with respect to any of those matters are of no effect unless 283 they are either notified by the Government under section 13B or certified by the Certifying Officer under section 5 of the Standing Orders Act.
In regard to matters in respect of which regulations made by the Board have not been notified by the Governor or in respect of which no regulations had been made by the Board, the Standing Orders Act would continue to apply.
Since, in the instant case, the regulations framed by the Board with regard to the age of retirement under section 79C have been notified by the Government under section 13B of the Standing Orders Act, the respondent is bound by those regulations and his retirement on attaining the age of 58 years was correct.
[286 F H; 287 A B] U.P. State Electricity Board and others vs Hari Shanker Jain and others, [1979]1 S.C.R. 355, applied.


judgement:
Civil Appeal No. 681 of 1978.
Appeal by special leave from the judgment and order dated the 2nd day of September, 1976 of the Punjab & Haryana High Court in Letters Patent Appeal No. 208 of 1974.
Y.S. Chitale, Mrs. A.K. Verma and Ashok Gupta for the Appellant.
Hardev Singh and R.S. Sodhi for the Respondents.
The Judgment of the Court was delivered by VARADARAJAN, J.
This appeal by special leave is directed against the judgment of a Division Bench of the Punjab and Haryana High Court at Chandigarh in Letters Patent Appeal No. 208 of 1974 by the respondent in that appeal.
The appellant who filed the Writ Petition, has its head office at Kanpur and is running two woollen mills, one at Dhariwal, in the name and style of New Egerton Woollen Mills ' (hereinafter referred to as 'Dhariwal Mills ') and another at Kanpur in the name and style of 'Lal Imli Cawnpore Woollen Mills ' (hereinafter referred to as 'Kanpur Mills ').
The case of the appellant company was that after the purchase of raw material made by its head office at Kanpur the raw material is sent from various centres in India as well as from abroad to both the mills in accordance with their requirements and no raw material used in the Dhariwal Mills is purchased locally or within the area of the Market Committee, Dhariwal excepting that during the years 1969 and 1970 two contracts for the purchase of raw wool of the value of Rs. 6,000/ and Rs. 5,000/ were entered into within the area of the said Market Committee.
The appellant 's case was that no purchase or sale of the raw material received by the Dhariwal Mills takes place within the area of the Market Committee and that, however, the Market Committee made a demand for payment of market fee on all raw wool purchased by the appellant from 7.3.1962 to 29.6.1968 by a letter dated 21.6.1968 on pain of 161 recovery of that amount and penalty as arrears of land revenue, if not paid within the specified time.
After a series of correspondence between the appellant and the Market Committee first respondent, the latter made an assessment of market fee due from the appellant and demanded a sum of Rs. 3,67,200/ made up for Rs. 2,44,800/ being fee payable for the period from 26.5.1961 to 31.12.1970 and Rs. 1,22,400/ being penalty.
As the amount was not paid the Market Committee took steps under section 41 (2) of the Punjab Agricultural Produce Markets Act, 1961 for the recovery of the amount as arrears of land revenue.
It is in these circumstances that the appellant filed a Writ Petition No. 4247 of 1971 which was dismissed as infructuous on 15.11.1972 as the Market Committee agreed to withdraw the assessment and to make a fresh assessment according to the rules.
The appellant contended in the present Writ Petition out of which this appeal has arisen that although it made all efforts for associating itself with the fresh assessment proceedings by producing the necessary records, the Market Committee once again levied market fee of Rs. 4,26,000/ and penalty of a like sum and made a demand for the total sum of Rs. 8,52,000/ by notice dated 16.8.1973.
The present Writ Petition was filed under Articles 226 and 227 of the Constitution for quashing that demand notice and restraining the Market Committee from recovering the amount.
The learned Single Judge allowed the Writ Petition on a legal point that the assessment order made is not accordance with the provisions of the aforesaid Act and the Rules, without expressing any opinion on the merits of the case.
The Market Committee, therefore filed the aforesaid Letters Patent Appeal.
There is no dispute that the raw material received by the Dhariwal Mills is an agricultural produce as defined is section 2A of the Act and that the said commodity after being received by the Dhariwal Mills is weighed within the notified area of the Market Committee.
The contest between the parties is on the question whether in the circumstances of the case the provisions of section 23 of the Act were attracted or not.
Section 23 of the Act reads thus: "A Committee shall, subject to such rules as may be made by the State Government in this behalf, levy on ad 162 valorem basis fees on the agricultural produce bought or sold by licensees in the notified market area at a rate not exceeding two rupees and twenty paise for every one hundred rupees.
Provided that: (a) no fee shall be leviable in respect of any transaction in which delivery of the agricultural produce bought or sold is not actually made; and (b) a fee shall be leviable only on the parties to a transaction in which delivery is actually made.
" A perusal of the records produced by the appellant reveals the existence of a number of original contracts entered into by the appellant at Kanpur with various suppliers of raw wool in India with a provision practically in all the transactions that 80 per cent of the goods was payable against the documents and the balance after receipt and examination of the goods which were to be despatched to Dhariwal Mills directly.
There are certain terms and conditions on the back of the contract forms in regard to the procedure for scouring yield.
It will be necessary to state only a few of those terms and conditions.
Clause A relating to the procedure for scouring yield read thus: (A) Two bales at random are taken and issued to Scouring Department.
The weight recorded at the time of receipt of the consignment is taken.
After scouring in three bowl Scouring Machine using warm water, the wool is dried in the dryer and spread in a covered place for about 12 hours to regain normal moisture.
The wool is then weighed and yield calculated".
Clauses 2 and 3 read thus: '2.
The Mills have every right to reject a portion or bulk if the quality is not up to the suppliers ' samples given at the time of offers.
Weight received in the mills will be taken as final weight.
" 163 Rule 29 of the Punjab Agricultural Produce Market (General) Rules 1962 framed under the Act provides for levy of the fees on agricultural produce bought or sold by licensees in the notified market area.
Rule 29 (7) read thus: "29 (7) For the purposes of this rule agricultural produce shall be deemed to have been bought or sold in a notified market area: (a) if the agreement of sale or purchase thereof is entered into the said area; (b) if in pursuance of the agreement of sale or purchase the agricultural produce is weighed in the said area; or (c) if in pursuance of the agreement of sale or purchase the agricultural produce is delivered in the said area to the purchaser or to some other person on behalf of the purchaser.
" Clauses (b) and (c) would be attracted bringing the transaction within the term 'bought or sold ' if in pursuance of the agreement of sale or purchase, even if entered into at Kanpur, the agricultural produce is weighed in the market area or if in pursuance of the agreement of sale or purchase the agricultural produce is delivered in the said area to the purchaser or to some other person on behalf of the purchaser.
The Division Bench of the High Court in the Letters Patent Appeal was of the opinion that both clauses (b) and (c) are applicable to the facts of the present case even on the admitted facts of this case as the transaction of sale is completed immediately on the delivery of the goods to the Dhariwal Mils.
In that view the learned Judges allowed the appeal and set aside the judgment of the learned Single Judge and left it open to the appellant company to satisfy the Market Committee in respect of any transaction which does not fall within the scope of their judgment.
The question is as regards the sites of the sale.
If the sale transaction took place within the Market Committee either by delivery of the goods or by weighment thereof, the transaction would fall within the ambit of Rule 29 (7).
After having heard 164 learned counsel for the parties we are of the opinion that no interference with the judgment under appeal is called for except that it is necessary to make it clear that the delivery and weighment to be taken into consideration by the market Committee in respect of the past transactions regarding which the demand has been made and also future transactions must be delivery an/or weighment without which there will be no sale at all in law.
Subject to this clarification we dismiss the appeal and direct the parties to bear their own costs.
P.B.R. Appeal dismissed.

summary:
The appellant, with its head office at Kanpur in U.P., runs two woollen mills one of which is in Dhariwal in the State of Punjab.
The raw material purchased by the head office at Kanpur was sent from various centres to the mills and no raw material used in the mills was purchased locally or within the area of the Market Committee.
On demand of market fee by the Committee under section 23 of the Punjab Agricultural Produce Markets Act, 1961 the appellant stated that no purchase or sale of the raw material received by the mills took place within the area of the Market Committee and that for this reason the Committee had no jurisdiction to levy any fee in respect of those materials.
A Writ Petition filed by the appellant in the High Court was dismissed a infructuous since the Market Committee agreed to withdraw the assessment and to make fresh assessment according to the rules.
Some time later, however, the Market Committee once again levied market fee and penalty.
A single Judge of the High Court quashed the demand notice of the Market Committee on the ground that the assessment order was not in accordance with the provisions of the Act and Rules.
But a Division Bench of the High Court allowed the Committee 's Letters Patent Appeal.
On the question whether the Market Committee was competent to levy fees.
Dismissing the appeal, ^ HELD: Clauses (b) and (c) of rule 29 (7) of the Punjab Agricultural Produce Markets (General) Rules, 1962 would be attracted bringing the transaction within the term 'bought or sold ' if in pursuance of the agreement of sale or purchase, even if entered at the head office of the mills at Kanpur, the agricultural produce was weighed in the market area or if in pursuance of the 160 agreement of sale or purchase the agricultural produce was delivered in the said area to the purchaser or to some other person on behalf of the purchaser.
[163 E F] In the instant case both clauses (b) and (c) would be applicable provided the transaction of sale was completed immediately on the delivery of the goods to the mills on weighment within the market area, if the delivery and/or weighment are such that without both or either of them there will no sale at all in law.
[164 A B]