judgement:
Civil Appeal No. 3013 of 1987.
From the Judgment and Order dated 30.7.1986 of the Andhra Pradesh High Court in A.A.O. No. 1491 of 1985.
section Madhusudan Rao, K.K. Gupta and Rakesh Kumar Gupta for the Appellant.
K.V. Sreekumar and B. Parthasarthi for the Respondent.
The Judgment of the Court was delivered by JAGANNATHA SHETTY, J.
We grant special leave and proceed to dispose of the appeal.
Shobha Rani is the appellant.
Her husband is Madhukar Reddi who is respondent before us.
The wife is post graduate in biological 1013 sciences.
The husband is a medical doctor.
They were happily married on December 19, 1982.
But their happiness did not last longer.
They started exchanging letters with bitter feelings.
Then they began to accuse each other.
At one stage, they thought of winding up by mutual consent.
It was perhaps out of disgust.
it would have been better, if it had happened.
But unfortunately, it did not materialise.
Ultimately they landed themselves in the Court.
The wife moved the Court for divorce on the ground of cruelty.
Before referring to further facts, let us consider the law.
The cruelty simpliciter is now a ground for divorce under Sec. 13 of the (Act 25 of 1955).
Section 13 provides, so far as it is material: "13 Divorce (1) Any marriage solemnized whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party . . (i) . . (i a) has, after the solemnization of the marriage, treated the petitioner with cruelty, or xxxx xxxxx xxxxx xxxxx Section 13(1)(i a) uses the words "treated the petitioner with cruelty".
The word "cruelty" has not been defined.
Indeed it could not have been defined.
It has been used in relation to human conduct or human behaviour.
It is the conduct in relation to or in respect of matrimonial duties and obligations.
It is a course of conduct of one which is adversely affecting the other.
The cruelty may be mental or physical, intentional or unintentional.
If it is physical the court will have no problem to determine it.
It is a question of fact and degree.
If it is mental the problem presents difficulty.
First, the enquiry must begin as to the nature of the cruel treatment.
Second, the impact of such treatment in the mind of the spouse.
Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other.
Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse.
There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal.
Then the impact or the injurious effect on the other spouse need not be enquired into or 1014 considered.
In such cases, the cruelty will be established if the conduct itself is proved or admitted.
It will be necessary to bear in mind that there has been marked change in the life around us.
In matrimonial duties and responsibilities in particular, we find a sea change.
They are of varying degrees from house to house or person to person.
Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life.
A set of facts stigmatised as cruelty in one case may not be so in another case.
The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions.
It may also depend upon their culture and human values to which they attach importance.
We, the judges and lawyers, therefore, should not import our own notions of life.
We may not go in parallel with them.
There may be a generation gap between us and the parties.
It would be better if we keep aside our customs and manners.
It would be also better if we less depend upon precedents.
Because as Lord Denning said in Sheldon vs Sheldon, (259) "the categories of cruelty are not closed.
" Each case may be different.
We deal with the conduct of human beings who are not generally similar.
Among the human beings there is no limit to the kind of conduct which may constitute cruelty.
New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of.
Such is the wonderful/realm of cruelty.
These preliminary observations are intended to emphasize that the Court in matrimonial cases is not concerned with ideals in family life.
The Court has only to understand the spouses concerned as nature made them, and consider their particular grievance.
As Lord Reid observed in Gollins vs Gollins, ; (1972): "In matrimonial affairs we are not dealing with objective standards, it is not a matrimonial offence to fall below the standard of the reasonable man (or the reasonable woman).
We are dealing with this man or this woman.
" Chandrachud, J. (as he then was) in Narayan Ganesh Dastane vs Sucheta Narayan Dastane, ; (978) said: "The Court has to deal, not with an ideal husband and an ideal wife (assuming any such exist) but with parti 1015 cular man and woman before it.
The ideal couple or a near ideal one will probably have no occasion to go to a matrimonial court, for, even if they may not be able to drown their differences, their ideal attitudes may help them overlook or gloss over mutual faults and failures.
" With these principles in mind, we may now unfold the story with which the wife came to the Court seeking dissolution of her marriage.
She made several grievances.
We may ignore all but one.
The one and the only one with which we are concerned is her complaint about the dowry demand by the husband or his parents.
The dowry is a deep rooted evil in the society.
It started as customary presents with love and affection.
In olden days, it was customary to give some presents to the bride and bridegroom and his family at the time of marriage.
The parents of the bride or their relations out of affection and good intention used to provide the couple something to fall back upon in case of need.
The system started at a time when girls were generally not very much educated and even if they were educated they were unwilling to take up gainful employment.
There was also less opportunity for them either to supplement the family income or to become financially independent.
There was yet another reason for such customary gifts.
The daughter then was not entitled to a share in the joint family properties when she had a brother.
Hence the father out of affection or other consideration used to give some cash or kind to the daughter at the time of marriage.
The right of the father to give a small portion of even the family property as a gift to the daughter at the time of her marriage was recognised.
But unfortunately over the years new practice developed.
The boy or his family members started demanding cash or kind from the brides parents.
They started demanding dowry as a matter of right.
The demand more often extended even after the marriage.
There were instance of harassment of the wife, if the demand was not complied with.
In order to curb this evil practice, the Parliament enacted the (Act No. 28 of 1961).
The Act prohibited the giving or taking of dowry.
But in spite of this enactment, the pernicious practice continued in some communities.
The Joint Committee of Parliament appointed to examine the working of the remarked "the evil sought to be done away with by the Act, on the other hand, increased by leaps and bounds and has now assumed grotesque and alarming proportions.
" Again the Parliament intervened.
The Dowry Prohibition (Amendment) Act, 1984 was enacted with considerable changes in the parent Act.
Likewise the Indian Penal Code was amended by introducing of an entirely new offence hitherto unknown to criminal jurisprudence.
Sec 1016 tion 498 A has been introduced in the following terms: "498 A. Husband or relative of husband of a woman subjecting her to cruelty; whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation For the purposes of this section "cruelty" means: (a) Any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand." A new dimension has been given to the concept of cruelty.
Explanation to Sec.
498 A provides that any wilful conduct which is of such a nature as is likely to drive a woman to commit suicide would constitute cruelty.
Such wilful conduct which is likely to cause grave injury or danger to life, limb or health (whether mental or physical of the woman) would also amount to cruelty.
Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security would also constitute cruelty.
We are, however, not concerned with criminal offence either under the or under the Indian Penal Code.
We are concerned with a matrimonial conduct which constitutes cruelty as a ground for dissolution of marriage.
Such cruelty if not admitted requires to be proved on the preponderance of probabilities as in civil cases and not beyond a reasonable doubt as in criminal cases.
This Court has not accepted the test of proof beyond a reasonable doubt.
As said by Chandrachud, J. in Dastane case (Ibid at p. 976): "Neither section 10 of the Act which enumerates the 1017 grounds on which a petition for judicial separation may be presented nor section 23 which governs the jurisdiction of the Court to pass a decree in any proceedings under the Act requires that the petitioner must prove his case beyond a reasonable doubt.
Section 23 confers on the court the power to pass a decree if it is "satisfied" on matters mentioned in clauses (a) to (e) of the section.
Considering that proceedings under the Act are essentially of a civil nature, the word "satisfied" must mean "satisfied" on a preponderance of "probabilities" and not "satisfied beyond a reasonable doubt".
Section 23 does not alter the standard of proof in civil cases.
" Let us now turn to the evidence in this case.
It consists of that of wife as P.W. 1 as against the evidence of husband as R.W. 1.
The parties have also produced the letters exchanged between them.
There appears to be no doubt that the husband or his parents were demanding dowry from the appellant.
The husband in his letter exhibit Al dated August 28, 1983 wrote to the wife: "Now regarding Dowry point, I still feel that there is nothing wrong in my parents asking for few thousand rupees.
It is quite a common thing for which my parents are being blamed, as harassment.
" The wife in her evidence before the Court has stated: "My Mother in law always used to make demand for money from my parents.
I used to tell my parents about what was happening to me in that house.
I used to keep silent when my mother in law made demands for money.
The respondent also sometimes used to make demands for money.
I used to tell him as to why should I ask money from my parents, and I also used to tell him that I would not ask my parents.
But he used to reply that such things were only there in olden times and not now and that therefore, I should ask money from my parents.
There were fixed deposits receipts in my name in the Bank upto one and a half to two lakhs.
Besides this there was house plot in my name at Jubilee Hills.
I was afraid of telling my husband and my parents in law that I would not ask my parents for money.
1018 This I was afraid because I had an apprehension that something would be done to me either physically or mentally if I told them so.
I entertained this apprehension because this went on regularly every day, that is their demands for money.
xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx I was afraid to go back again to the respondent 's house because I felt that the pestering for money will go on like this.
I, therefore, developed aversion for going back to the respondent.
For that reason, I joined as a school teacher.
" The trial court or the High Court did not state that there was no demand for money.
The case of the wife was, however, rejected on the ground that there was no satisfactoy evidence that the demands were such as to border on harassment.
The trial court said: "Though one would not justify demands for money, it has to be viewed in this perspective.
The respondent is a young up coming doctor.
There is nothing strange in his asking his wife to give him money when he is in need of it.
There is no satisfactory evidence that the demands were such as to border on harassment.
" In regard to the admission by the husband in his letter dated August 28, 1983 as to the dowry demanded by his parents, the trial court observed: "The letter should be read as a whole.
The respondent has an explanation to make and has made one in the cross examination.
He is trying to confess.
It is clear from the attitude of the petitioner that she is prone to exaggerate things.
That is evident from her complaint of food and the habit of drinking.
" xxxxxx xxxxxx xxxxxx "Either because of her over sensitivity or because of her habit of exaggeration, she has made a mountain of mole hill.
Further, for the reasons best known to her, the petitioner 1019 has not examined her father.
There is no explanation why he has not been examined in support of her contention that the respondent and his parents were harassing her for money.
" The High Court also went on the same lines.
The High Court said that the wife appears to be hypersensitive and she imagines too much and too unnatural things.
The High Court then observed: "Though one would not justify demands for money it has to be viewed in the circumstances from a proper angle.
The respondent is a doctor, if he asks his rich wife to spare some money, there is nothing wrong or unusual.
" This is not a case where the husband requested his wife to give some money for his personal expenses.
The High Court appears to have misunderstood the case.
It has evidently proceeded on a wrong basis.
It proceeded on the ground that the husband wanted some money from his wife for his personal expenses.
If the demand was only of such nature we would have thrown this appeal away.
The wife must extend all help to husband and so too the husband to wife.
They are partners in life.
They must equally share happiness and sorrow.
They must help each other.
One cannot take pleasure at the cost of the other.
But the case on hand is not of a failure on that front.
It has been admitted by the husband himself in his letter dated August 28, 1983 addressed to the wife that his parents demanded dowry.
But he wrote to the wife that there was nothing wrong in that demand of his parents.
This is indeed curious.
He would not have stated so unless he was party to the demand.
The wife has stated in her evidence that there were repeated demands for money from her monther in law.
Her evidence cannot be brushed aside on the ground that she has not examined her father.
It was not the case of the wife that the dowry was demanded directly from her father.
The evidence of the father was therefore not material.
It is also not proper to discredit the wife as hypersensitive or prone to exaggeration.
That would be judging the wife by our style of manners and our standard of life.
That we cannot apply.
We must try to understand her feelings and then search for the nugget of truth in the entire evidence.
The contents of exhibit Al should not be read in isolation.
It must be viewed against the background of accusations in the letter dated December 26, 1983 written by advocate for the wife to his counter part.
The relevant portion of the letter reads: 1020 "In the background of these, the worst form of ill trestment that is meted out to our client was constant harassment for monies.
It may be brought to your notice that prior to marriage on demand by your client 's father a sum of Rs. 17,000 was given and also a Scooter thereafter.
It may be brought to your notice that one other main reason for your client to dowry deaths which are very frequently seen now a days in papers.
It may be pointed out that your clients philosophy is that since our client 's are financially sound, there is no wrong for your client 's parent to ask for few more thousands.
It may be pointed out and brought to your notice that it appears your client 's sole object of marriage was to get the monies standing in the name of our client transferred to his name.
It would be better to understand that money that stand in our client 's name are somwhere about two lakhs.
It is not out of place to mention that your client 's behaviour and treatment with our client could only be said to be a pointer for seeking these monies alone and marriage was a device. . ." The cumulative effect of all the circumstances and the evidence of parties lead to the conclusion that the demand of dowry went on with the support of the husband.
The High Court while dealing with this part of the case has observed that there is no evidence to show that the demands were such as to cause harassment to the wife.
The High Court appears to have misconstrued the scope of cruelty in matrimonial affairs.
The evidence as to harassment to the wife to meet any unlawful demand for money is necessary to constitute cruelty in criminal law.
It is the requirement of the offence of `cruelty ' defined under sec.
498A of the Indian Penal Code.
13(1)(i a) of the provides that the party has after solemanization of the marriage treated the petitioner with cruelty.
What do these words mean? What should be the nature of cruelty? Should it be only intentional, wilful or deliberate? Is it necessary to prove the intention in matrimonial offence? we think not.
We have earlier said that cruelty may be of any kind and any variety.
It may be different in different cases.
It is in relation to the conduct of parties to a marriage.
That conduct which is complained of as cruelty by one spouse may not be so for the other spouse.
There may be instance of cruelty by the unintentional but inexcusable conduct of any party.
The cruel treatment may also result by the cultural conflict of the spouses.
In such cases, even if the act of cruelty is established, the intention to commit cannot be 1021 established.
The aggrieved party may not get relief.
We do not think that that was the intention with which the Parliament enacted sec.
13(1)(i a) of the .
The context and the set up in which the word 'cruelty ' has been used in the section, seems to us, that intention is not a necessary element in cruelty.
That word has to be understood in the ordinary sense of the term in matrimonial affairs.
If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established.
But the absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty.
The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill treatment.
The same is also the line of reasoning adopted by the House of Lords in Gollins vs Gollins, ; at 976 where Lord Evershed said: "I am unable to accept the premise that "cruelty" in matrimonial proceedings requires or involves of necessity the element of malignity though I do not of course doubt that if malignity be in fact established it would be highly relevant to a charge of cruelty.
In my opinion, however, the question whether one party to a marriage has been guilty of cruelty to the other or has treated the other with cruelty does not, according to the ordinary sense of the language used by Parliament, involve the presence of malignity (or its equivalent); and if this view be right it follows, as I venture to think, that the presence of intention to injure on the part of the spouse charged or (which is, as I think, the same thing) proof that the conduct of the party charged was "aimed at" the other spouse is not an essential requisite for cruelty.
The question in all such cases is, to my mind, whether the acts or conduct of the party charged were "cruel" according to the ordinary sense of that word, rather than whether the party charged was himself or herself a cruel man or woman. . .
Bearing in mind the proper approach to matrimonial offence, we are satisfied that the facts and circumstances brought out by the appellant in this case do justify an inference that there was demand for dowry.
The demand for dowry is prohibited under law.
That by itself is bad enough.
That, in our opinion, amounts to cruely entitling the wife to get a decree for dissolution of marriage.
1022 In the result, we allow the appeal and in reversal of the judgments of the courts below, we grant a decree for dissolution of the marriage.
In the circumstances of the case, however, we make no order as to costs.
N.P.V. Appeal allowed.

summary:
% The appellant wife, a post graduate in biological sciences, married the respondent husband, a medical doctor on December 19, 1982.
Soon after, relations between them became bitter.
Ultimately, the appellant wife moved the court for divorce on the ground of cruelty.
Her main complaint was about the dowry demanded by the husband or his parents.
The trial court rejected the appellant 's case on the ground that there was no satisfactory evidence that the demands were such as to border on harassment.
The High Court also rejected her case and held that the appellant appeared to be hypersensitive and imagined too much and too unnatural things, that the demand for money had to be viewed from a proper angle, and that there was nothing wrong in the respondent, who was a doctor, asking his rich wife to spare some money.
Allowing the appeal by special leave, ^ HELD: 1.1 In order to curb the evil practice of dowry, the Parliament enacted the prohibiting the giving or taking of dowry.
But, as the pernicious practice continued in some communities, the Dowry Prohibition (Amendment) Act, 1984 was enac 1011 ted with considerable changes in the parent Act.
Likewise, the Indian Penal Code, 1860 was amended by introducing an entirely new offence with regard to criminal jurisdiction.
Section 498A was introduced providing for punishment to the husband or the relative of the husband of a woman, subjecting her to cruelty.
[1015F H] new dimension has been given to the concept of cruelty.
Explanation to section 498A of the Indian Penal Code provides that any wilful conduct which is of such a nature as is likely to drive a woman to commit suicide or likely to cause grave injury or danger to life, limb or health (whether mental or physical of the woman), and harassment of the woman with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security would constitute cruelty.
[1016E F] 1.2 Cruelty simpliciter is a ground for divorce under section 13 of the .
However, the word `cruelty ' has not been defined.
Indeed, it could not have been defined.
It has been used in relation to or in respect of matrimonial duties and obligations.
It is a course of conduct of one which is adversely affecting the other.
The cruelty may be mental or physical, intentional or unintentional.
If it is physical, the Court will have no problem to determine it.
It is a question of fact and degree.
If it is mental, the enquiry must begin as to the nature of cruel treatment and the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other.
Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse.
There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal.
Then the impact or injurious effect on the other spouse need not be enquired into or considered.
In such cases, the cruelty will be established if the conduct itself is proved or admitted.
[1013E H; 1014A] 1.3 The matrimonial conduct which constitutes cruelty as a ground for dissolution of marriage, if not admitted, requires to be proved on the preponderance of probabilities as in civil cases and not beyond a reasonable doubt as in criminal cases.
[1016G] 1.4 Evidence as to harassment to the wife to meet any unlawful demand for money is necessary to constitute cruelty in criminal law.
This is the requirement of the offence of cruelty defined under section 498A of the Indian Penal Code.
It is not so under section 13(1)(i a) of the Hindu 1012 Marriage Act, 1955.
The cruelty need not be only intentional, wilful or deliberate.
It is not necessary to prove the intention in matrimonial offence.
From the context and the set up in which the words `cruelty ' has been used in section 13(1)(i a), intention is not a necessary element in cruelty.
That word has to be understood in the ordinary sense of the term in matrimonial affairs.
If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained or, cruelty could be easily established.
But the absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty.
The relief to the party cannot be denied on the ground that there has been deliberate or wilful ill treatment.
[1020F H; 1021A C] 1.5 The matrimonial duties and responsibilities are of varying degrees from house to house or person to person.
Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life.
In matrimonial cases, the Court is not concerned with the ideals in family life.
It has only to understand the spouses concerned as nature made them, and consider their particular grievance.
[1014B,F] Sheldon vs Sheldon, , 259, Gollins vs Gollins, ; 1972 and Narayan Ganesh Dastane vs Sucheta Narayan Dastane, ; 1978, referred to.


judgement:
ivil Appeal No. 384 of 1977.
From the Judgment and Order dated 18.11.1974 of the Allahabad High Court in Special Appeal No. 258 of 1974.
A.K. Ganguli, R.P. Srivastava, P Parmeswaran and Miss. A. 425 Subhashini for the Appellant.
Mrs. Rani Chhabra for the Respondent.
The following Order of the Court was delivered: SUPREME COURT EDITORIAL NOTE: Facts of the case: The respondent M.A. Chowdhary was appointed as a Staff Artist in All India Radio, Bombay under an agreement execut ed by him with the Director General of All India Radio.
The agreement was for three years.
On the expiry of three years, the respondent was re employed and his contract was renewed on yearly basis up to 30th November, 1964.
Thereafter he was re employed on a five years ' contract.
On November 2, 1967 the Government of India passed an order stating that Staff Artists should be allowed to remain in service upto the age of 55 years.
Accordingly, a clause was added to the agreement executed by the respondent, stipulating that the respondent shall remain in service upto December 31, 1985 on which date he was to attain the age of 55 years.
Clause 4(v) of the agreement, however, provided that the respondent 's service will be liable to be terminat ed on 6 months ' notice on either side.
In due course, the respondent was transferred to All India Radio, Varanasi.
The Assistant Station Director of All India Radio, Varanasi issued a notice dated 5th October, 1970 intimating the respondent that his services would stand terminated on the expiry of 6 months from 5th October, 1970 in accordance with clause 4(v) of the agreement.
The respondent challenged the validity of the aforesaid termination notice by Writ Petition filed in the High Court of Allahabad.
The learned Single Judge held that having regard to the service conditions, it must be held that the respondent was holding a 'civil post ', and as such was entitled to the protection of Articles 311(2) and 16 of the Constitution, and that inasmuch as persons junior to him had been retained in service, the Appointing Authority in termi nating his services had violated Article 16 of the Constitu tion.
On these grounds, the notice of termination of the respondent 's service was held bad and quashed.
426 In appeal, the Division Bench held that in view of clauses (1) to (4) of the Agreement it is apparent that the Government in consideration of a monthly salary, controls the nature and manner of work assigned to the staff artists, that the Government had complete control over the respond ent 's work and manner and method of doing the work, which was supervised by the higher authorities, that the relation ship between the respondent and the appellant was clearly of a master and servant, and the respondent was, therefore; holding a 'civil post ' within the meaning of Article 311(1) of the Constitution.
The authority to terminate the respond ent 's service on 6 months ' notice emanated from the contract but nonetheless it has the effect of violating Article 311(1) of the Constitution.
It must comply with Article 311(2), otherwise the termination would be a removal from service within the meaning of Article 311(2) and in viola tion of its provisions.
The Division Bench held that the notice of termination was void and rightly quashed by the learned Single Judge and dismissed the appeal of the Union of India.
ORDER Shri A.K. Ganguli, Learned Counsel for the Union of India submits that Article 311 of the Constitution is ap plicable to the Staff Artists of the All India Radio.
We are of the view that the statement made on behalf of the Govern ment represents the true legal position because the Staff Artists are holding civil posts under the Government.
In view of the above statement, this appeal filed against the judgment of the High Court of Allahabad in Special Appeal No. 258 of 1974 which has also taken the view that article 311 is applicable to those Staff Artists has to be dis missed.
This appeal is accordingly dismissed.
No costs.
H.S.K. Appeal dis missed.

dataset_name: IN-Abs

summary:
The respondent was appointed as a staff artist in the All India Radio under an agreement on contract basis.
On November 2, 1967 the Government of India passed an order stating that staff artists should be allowed to remain in service upto the age of 55 years and accordingly a clause was added to the agreement executed by the respondent.
Clause 4(v) of the agreement however provided that the respondent 's service will be liable to be terminated on six months notice on either side.
On October 5, 1970 a notice was issued to the respondent intimating that his services would stand terminated on the expiry of six months from the date of that notice.
The respondent challenged the validity of the termination notice by a writ petition.
A learned Single Judge of the High Court and the Division Bench of the High Court found that the post of staff artists held by the respondent was a 'civil post ' within the meaning of Article 311(1) of the Constitution and had the protection of Article 311.
Though the authority to terminate the respondent 's service emanated from the contract but nevertheless it has the effect of violating Article 311(1) of the Constitution.
The notice of termination was found void as it did not comply with Article 311(2).
Hence this appeal.
Agreeing with the High Court dismissing the appeal this Court, HELD: That the staff artists of the All India Radio hold civil posts under the Government and Article 311 of the Constitution is applicable to them.
[426F]


judgement:
ivil Appeal Nos.
635 642 of 1981.
From the Judgment and order dated 19/22.9.1980 of the Gujarat High Court in S.C.A. Nos.
3295, 3480, 3481, 3648, of 1979, 668, 669,889and 1205 of1980.
G. Ramaswamy, Additional Solicitor General, G.A. Shah, Hameed Qureshi and M.N. Shroff for the Appellants.
B.K. Mehta, M.N. Goswami, P.V. Nanavathy and H.S. Parihar, for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
These appeals by special leave are filed against the common judgment in eight writ petitions on the file of the High Court of Gujarat.
The respondents in these appeals i.e. the 1000 petitioners in the said writ petitions questioned the applicability of the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (Act 33 of 1976) (hereinafter referred to as `the Act ') to several pieces of land belonging to them situated within the limits of the Ahmedabad Municipal Corporation.
They raised three contentions before the High Court (i) that the Act was beyond the legislative competence of Parliament insofar as the State of Gujarat was concerned; (ii) that the lands in question were not vacant lands as defined in the Act and, therefore, the proceedings instituted in respect of them under the Act were liable to be quashed; and (iii) that the land acquisition proceedings under the Land Acquisition Act, 1894 which had been initiated in respect of the lands in question should be completed and the Land Acquisition Officer should be directed to pass awards in favour of the respondents.
The writ petitions were resisted by the State of Gujarat and despite such opposition the High Court allowed the writ petitions.
The High Court negatived the contention of the respondents regarding the legislative competence of Parliament to pass the Act in view of the decision in Union of India etc.
vs Valluri Basavaiah Chaudhary etc etc.
; The High Court, however, quashed the proceedings instituted under the Act in respect of the aforesaid lands which were pending before the Additional Collector and the Competent Authority, Ahmedabad.
While the High Court declined to issue a writ in the nature of mandamus directing the Land Acquisition Officer, before whom the proceedings commenced under the Land Acquisition Act, 1894 were pending as he had not been made a party to the writ petitions, it, however, made a declaration that the land acquisition proceedings did not suffer from any infirmity.
Indirectly the High Court indicated that the land acquisition proceedings should be proceeded with.
Aggrieved by the judgment of the High Court the appellants have filed these appeals by special leave.
The principal question which arises for consideration in this case is whether the lands in question are the lands to which the Act would apply.
The Act came into force with effect from 17.2.1976.
The object of the Act, as can be seen from its preamble, is to provide for the imposition of a ceiling on vacant land in urban agglomerations, for the acquisition of such land in excess of the ceiling limit, to regulate the constructions of buildings on such land and for matters connected therewith, with a view to preventing the concentration of urban land in the hands of a few persons and speculation and profiteering therein and with a view to bringing about an equitable distribution of land in urban agglomerations to subserve the common good.
Section 3 of the Act, which may be considered to be the key section of the Act, pro 1001 vides that except as otherwise provided in the Act, on and from the commencement of the Act, no person shall be entitled to hold any vacant land in excess of the ceiling limit in the territories to which the Act applies under sub section (2) of section 1.
The State of Gujarat is one of the States to which the Act has been made applicable by virtue of the provisions in sub section (2) of section 1 of the Act.
The ceiling limit is prescribed by section 4 of the Act.
The expression 'vacant land ' is defined in section 2(q) of the Act thus: "2(q) `Vacant land ' means land, not being land mainly used for the purpose of agriculture, in an urban agglomeration, but does not include (i) land on which construction of a building is not permissible under the building regulations in force in the area in which such land is situated; (ii) in an area where there are building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day with the approval of the appropriate authority and the land appurtenant to such building; and (iii) in an area where there are no building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day and the land appurtenant to such building: Provided that where any person ordinarily keeps his cattle, other than for the purpose of dairy farming or for the purpose of breeding of live stock, on any land situated in a village within an urban agglomeration (described as a village in the revenue records), then, so much extent of the land as has been ordinarily used for the keeping of such cattle immediately before the appointed day shall not be deemed to be vacant land for the purposes of this clause.
" Section 6 of the Act requires every person holding vacant land in excess of the ceiling limit at the commencement of the Act to file a statement before the competent authority having jurisdiction on the area in which the land is situated.
Section 7 of the Act is ancillary to section 6 of the Act.
Section 8 of the Act provides for the preparation of the draft statement as regards the vacant land held by any person in 1002 excess of the ceiling limit and for calling for objections from the owner to the said statement.
It also empowers the competent authority to consider the objections raised by the owner of the land and to pass such order as it deems fit.
After the disposal of the objections the competent authority is required by section 9 of the Act to make the necessary alterations in the draft statement in accordance with the orders passed on the objections aforesaid and to determine the vacant land held by the person concerned in excess of the ceiling limit.
A copy of the draft statement as so altered as the final statement under section 9 of the Act.
After the service of the final statement prepared under section 9 of the Act on the person concerned the competent authority is required to acquire the land held by the person concerned in excess of the ceiling limit in accordance with the procedure prescribed therein.
Section 11 of the Act provides for payment of compensation in accordance with the principles contained therein.
The Act contains provisions regarding the constitution of the Urban Land Tribunal and makes provisions for appeal to the Urban Land Tribunal and also a second appeal to the High Court.
Section 19 of the Act provides that subject to the provisions of sub section (2) thereof nothing in Chapter III of the Act would apply to vacant lands held by the Central Government or any State Government or any local authority or corporation or other institution specified therein.
Section 15 of the Act imposes ceiling limit on future acquisition of vacant lands also.
It is not necessary to refer to the several other provisions in the Act except section 42 thereof.
Section 42 of the Act provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith in any other law for the time being in force or any custom, usage or agreement or decree or order of a court, tribunal or other authority.
Thus the Act is given an overriding effect.
We have already given the definition of the expression `vacant land ' found in section 2(q) of the Act.
`Vacant land ' means any land which is not being used mainly for the purpose of agriculture.
But it does not include (i) land on which construction of a building is not permissible under the building regulations in force in the area in which such land is situated; (ii) in an area where there are building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day with the approval of the appropriate authority and the land appurtenant to such building; and (iii) in an area where there are no building regulations the land occupied by any building which has been constructed before, or is being constructed on, the appointed day and the land appurtenant to such building.
The proviso to the definition in section 2(q) of the Act 1003 provides that where any person ordinarily keeps his cattle, other than for the purpose of dairy farming or for the purpose of breeding of live stock, on any land situated in a village within an urban agglomeration (described as a village in the revenue records), then, so much extent of the land as has been ordinarily used for the keeping of such cattle immediately before the appointed day shall not be deemed to be vacant land for the purposes of this clause.
The expression `appointed day ' is defined in section 2(a) of the Act.
Under that clause `appointed day ' means in relation to any State to which the Act applied in the first instance, the date of introduction of the Urban Land (Ceiling and Regulation) Bill, 1976 in Parliament, and in relation to any State which adopts the act under clause (1) of Article 252 of the Constitution, the date of such adoption.
So far as the State of Gujarat is concerned, the appointed date is the date of introduction of the Urban Land (Ceiling and Regulation) Bill, 1976 in Parliament since the Act became applicable to the State of Gujarat at the first instance by virtue of section 1(2) of the Act.
The first contention raised by the respondents, namely, that the lands in question were agricultural lands under the Bombay Land Revenue Code, 1879, and, therefore, they were not vacant lands under the Act was rejected by the High Court itself and we need not dwell on it in these appeals since the said contention has not been raised before us.
The second contention raised by the respondents who were petitioners before the High Court was that the lands in question were lands on which the construction of buildings was not permissible under the building regulations in force in the area in which the lands were situated and, therefore, they were outside the scope of the expression `vacant land '.
In other words the contention was that as the lands in question were lands which came within the scope of sub clause (i) of clause (q) of section 2 of the Act, they could not be treated as vacant lands.
Three grounds were urged in support of the above contention and they were based on the existence of a town planning scheme, namely, the Town Planning Scheme No. 29 framed by the Ahmedabad Municipal Corporation under the Bombay Town Planning Act, 1954 which was in force at the relevant time.
The first ground urged in this behalf by the respondents before the High Court was that permission to build on the lands in question could not be granted by the authorities concerned as they had been included within the `green belt ' around the city of Ahmedabad under the Town Planning Scheme and hence they were not vacant lands.
This plea was not accepted by the 1004 High Court because the proposal to retain the `green belt ' had been abolished in the year 1975 and the restrictions on building, if any, on those lands on that account were no longer in existence.
The second ground urged before the High Court was that on the coming into force of the Town Planning Scheme No. 29 framed under the Bombay Town Planning Act, 1954 no building activity was permissible on the aforesaid lands because the said lands had been reserved for a public purpose, namely, construction of Government staff quarters.
In support of this submission reliance was placed on section 29 of the Bombay Town Planning Act, 1954.
The relevant part of section 29 of the Bombay Town Planning Act, 1954 reads as follows: "Restriction after declaration for town planning scheme.
29(1).
On or after the date on which the local authority 's declaration of intention to make a scheme under section 22 or the notification issued by the State Government under section 24 is published in the Official Gazette, (a) no person shall within the area included in the scheme erect or proceed with any building or work or remove, pull down, alter, make additions to or make any substantial repair to any building, part of a building, a compound wall or any drainage work or remove any earth, stone or material, or sub divide any land, or change the user of any land or building unless such person has applied for and obtained the necessary permission which shall be contained in a commencement certificate granted by the local authority in the form prescribed . . . ." The High Court treating section 29(1)(a) of the Bombay Town Planning Act, 1954 as a building regulation within the meaning of that expression used in sub clause (i) of clause (q) of section 2 of the Act was of the view that the ban contained in clause (a) of section 29(1) of the Bombay Town Planning Act, 1954 brought the lands in question within sub clause (i) of clause (q) of section 2 of the Act.
Assuming for purposes of argument that section 29(1)(a) of the Bombay Town Planning Act, 1954 amounted to a building regulation it cannot be said that the construction of buildings on the land in question was not permissible at all.
Section 29(1)(a) of the Bombay Town Planning Act, 1954 only required a person who owned a piece of land situated within an 1005 area included in the scheme to obtain the permission from the local authority before erecting or constructing any building or pulling down or altering any building as provided therein.
Merely because section 29(1)(a) of the Bombay Town Planning Act, 1954 requires a person owning the land to which a scheme applied to obtain permission of the local authority to construct a building on it, it cannot be said that the land was one on which construction of building was not permissible.
The embargo in question was not total.
It was only where the ban was complete it could be said that no construction was permissible on the land.
The High Court omitted to notice that the owners were entitled to construct buildings on the lands after the permission was accorded by the local authority.
The finding of the High Court that by virtue of section 29(1)(a) of the Bombay Town Planning Act, 1954 the lands fell outside the definition of `vacant land ' in the Act is, therefore, unsustainable.
It was no doubt true that the State Government had issued a notification dated March 31, 1976 published in the Gujarat Government Gazette dated April 8, 1976 under section 4(1) of the Land Acquisition Act, 1894 stating that the lands in question were likely to be needed for a public purpose, namely, for providing housing accommodation for the employees of the Ahmedabad Municipal Corporation and that after making an enquiry under Section 5 A of the Land Acquisition Act, 1894 the State Government had issued declaration under section 6 of that Act declaring that the aforesaid lands along with other lands were needed for the public purpose referred to above.
In the meanwhile the Act came into force with effect from 17.2.1976.
The respondents filed statements before the competent authority under section 6 of the Act including the lands in question which were in excess of the ceiling limit which each of them could retain after the coming into force of the Act.
Thereafter they filed the above writ petitions out of which these appeals arise contending that the acquisition proceedings under the Land Acquisition Act, 1894 should be proceeded with and the acquisition of proceedings of the surplus land under the ceiling law should be dropped.
In this connection the respondents relied upon the provisions contained in section 24 of the Land Acquisition Act, 1894 in which clause `seventhly ' stated that any outlay or improvements on, or disposal of the land acquired, commenced, made or effected without the sanction of the Collector after the date of publication of the notification under section 4, sub section (1) of the Land Acquisition Act, 1894 should not be taken into consideration by the Court at the time of determining compensation payable under the said Act.
The argument of the respondents was that 1006 clause `seventhly ' in section 24 of the Land Acquisition Act, 1894 again amounted to an embargo on construction of buildings on the lands which attracted sub clause (i) of clause (q) of section 2 of the Act and, therefore, the lands were not vacant lands.
Reliance was placed by the respondents on the decision of the High Court of Delhi in Smt.
Shanti Devi vs The Competent Authority under U.L. (C. & R.) Act, 1976, Delhi and others, AIR 1980 Delhi 106 in which the High Court of Delhi had taken the view that a land in respect of which a notification under section 4(1) of the Land Acquisition Act, 1894 had been issued was a land on which construction of buildings was not permissible and was thus outside the definition of the expression `vacant land ' in section 2(q) of the Act.
The reason given by the Delhi High Court for reaching the above conclusion is set out in para 12 of the said decision.
It reads thus: "12.
It is pertinent to note that the land in Sant Nagar is under threat of acquisition by issue of section 4 notification of the Land Acquisition Act, 1894.
This is not denied by the respondents.
In this view of the matter also building activity would not be permissible as no prudent person would construct on land already notified under section 4 of the said Act because he will get no compensation for it unless the construction is made with the permission of the Land Acquisition Collector.
For all intents and purposes the effect of section 4 notification, therefore, is that building activity is not permissible in Sant Nagar.
This would also result in excluding the Sant Nagar plots from the total holding of the petitioner for the purposes of computing vacant land under the Act." With great respect to the High Court of Delhi it has to be stated that the view taken by it is wholly incorrect.
The High Court of Delhi omitted to notice that in order to exclude a land from the definition of `vacant land ' it should be shown that it was a land on which construction of a building was not permissible under the building regulations in force in the area in which such land was situated.
The question whether a piece of land is a vacant land or not does not depend upon the fact whether a prudent man would put up a building on that land or not after the issue of a notification under section 4(1) of the Land Acquisition Act, 1894.
Nor a land will cease to be a vacant land merely because the permission of certain authority is to be taken to put up a building thereon.
It may be further seen that what clause `seventhly ' in section 24 of the Land Acquisition Act, 1894 provides is that any 1007 outlay or improvements on, or disposal of the land acquired, commenced, made or effected without the sanction of the Collector after the date of the publication of the notification under section 4(1) of the Land Acquisition Act shall not be taken into consideration while awarding compensation.
It does not ban the construction of any building on the land which is so notified.
The High Court of Gujarat against whose judgment these appeals have been filed also committed an error in accepting a similar contention which was urged before them.
The declaration made by the High Court in these cases that the land acquisition proceedings did not suffer from an infirmity which indirectly suggests that the proceedings should go on is again erroneous.
It is open to the State Government to drop the land acquisition proceedings and to withdraw the lands from acquisition under section 48 of the Land Acquisition Act, 1894.
We are informed that the State Government has in fact subsequently withdrawn these lands from acquisition.
The proceedings under the Land Acquisition Act, 1894 cannot therefore have any bearing on the question whether the lands in question are vacant lands or not for purposes of the ceiling law contained in the Act.
When the lands in question or bulk of them are likely to be acquired under the ceiling law by paying compensation as provided therein, it would not be proper to compel the Government to acquire them under the provisions of the Land Acquisition Act, 1894.
As already stated the Act has the overriding effect on all other laws.
It was, however, urged before this Court by the learned counsel for the appellants that because the lands in question have been reserved under the Town Planning Scheme for purposes of building staff quarters the lands could not be treated as vacant lands.
We do not find any substance in this submission because the construction of buildings on the lands in question is permissible though not by the owners of land.
Sub clause (i) of clause (q) of section 2 of the Act does not provide that a land on which the owner cannot construct a building will cease to be vacant land for purposes of the Act.
As long as construction of building can be done on a land by some person or authority, the land does not get excluded from the definition of the expression `vacant land ' under the Act.
The lands in question, therefore, are vacant lands.
Before concluding our judgment we wish to refer to the decision of the Full Bench of the High Court of Bombay in Prabhakar Narhar Pawar vs State of Maharashtra and another, AIR 1984 Bombay 122 in which the following passage appears at page 130: 1008 "Reliance was placed on the decision of the Delhi High Court in Shanti Devi vs Competent Authority, (AIR 1930 Delhi 106).
In that decision, the learned Judges of the Delhi High Court took the view that section 2(q) of the Act contemplated that the activity of building is not permissible on the date when the land is sought to be dealt with and not at any future time and the possibility that such activity could come to be permitted in future or that there are buildings constructed in the area or that there is no prohibition to construct in an unapproved colony or that there is no permanent prohibition to construct would not be sufficient to treat the land as `vacant land ' within the meaning of the provision.
So far as the decision holds that the relevant date for determination for the purpose of section 2(q)(i) of the Act is the date on which the land is sought to be dealt with, that is, the commencement date referred to in section 3 there can be no dispute.
In a part of the decision, the Division Bench seems to have taken the view that land notified for acquisition under the Land Acquisition Act must be held to be one on which construction of buildings was not permitted.
We are really not concerned with that view, so far as the present petitions are concerned, but it is sufficient to point out that the correctness of that view has not been accepted by this Court in Dattatraya vs State of Maharashtra, [1981] Mah LJ 764; (AIR 1981 Bom 326) and in an unreported decision of this Court in D.P. Dani vs State of Maharashtra (Writ Petition No. 1650 of 1979 decided on 31st January, 1983).
In Dattatraya 's case the contention was that certain plots of land which were reserved for various public activities, such as buildings of primary school, high school, civil hospital, bus terminus etc.
under the Town Planning Scheme should be excluded for the purpose of computation of vacant land, because, according to the petitioners, in that case no building activity was permitted on those lands so far as the petitioners were concerned.
The Division Bench after referring to the primary object of the Act as set out in the case of Union of India vs Valluri Basavaiah Choudhary, (AIR rejected the contention that merely because the petitioners are prohibited from constructing any building under the building regulations contained in the Town Planning Scheme the land should not be treated as vacant land.
The Division Bench found that if the regulations allowed the 1009 building activity not to a person who holds that land but by public bodies or the State Government then certainly construction of building is permitted either by an individual or even by public authority and cannot be taken out of the definition.
" We agree with the observations made in the above case.
A Full Bench of the Allahabad High Court has in The State of U.P. and another vs Radha Raman Agarwal and another, AIR 1987 Allahabad 272 also taken the view that a land will cease to be a `vacant land ' for purposes of the Act only where the construction of a building on it is wholly impermissible.
We agree with the views expressed by the High Courts of Bombay and Allahabad.
In the result we allow these appeals, set aside the judgment of the High Court and dismiss the writ petitions filed in the High Court.
There will, however, be no order as to costs.
N.V.K. Appeals allowed.

summary:
% The State Government of Gujarat Appellant, issued a Notification dated March 31,1976 published in the Government Gazette dated April 8, 1976 under Section 4(1) of the Land Acquisition Act, 1894 stating that the Lands of the respondents were likely to be needed for the public purpose of providing housing accommodation for the employees of the Municipal Corporation, and that after making an enquiry under section 5 A of the Land Acquisition Act, 1894 the State Government had issued a declaration under section 6 of the said Act declaring that the aforesaid lands along with other lands were needed for the said public purpose.
In the meanwhile the Urban Land Ceiling and Regulation Act, 1976 came into force with effect from 17.2.1976.
The respondents filed statements before the Competent Authority under section 6 of the 1976 Act including the lands to be acquired which were in excess of the ceiling limit which each of the respondents could retain after the coming into force of the 1976 Act.
Thereafter, the respondents filed writ petitions contending that the acquisition proceedings under the Land Acquisition Act, 1894 should be proceeded with and the acquisition proceedings to the extent it related to the surplus land under the ceiling law should be dropped.
The applicability of the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 insofar as they were applicable within the limits of the Municipal Corporation were questioned contending that: (i) the Act was beyond the legislative competence of Parliament insofar as the State Government of Gujarat was concerned; (ii) that the lands in question were not 'vacant lands ' as defined in the Act and, therefore the proceedings instituted in respect of them under the Act were liable to be quashed, and (iii) that the land acquisition proceedings under the Land 998 Acquisition Act 1894 which were initiated should be completed, and the Land Acquisition Officer should be directed to pass awards in favour of the respondents.
These writ petitions were contested by the appellants State.
The High Court though negativing the contentions of the respondents regarding the legislative competence of Parliament to pass the Urban Land Act, quashed the proceedings instituted under the Act.
It, however, declined to issue a writ in the nature of mandamus directing the Land Acquisition Officer before whom the proceedings were commenced under the Land Acquisition Act, 1894 as he was not made a party to the writ proceedings, but made a declaration that the land acquisition proceedings did not suffer from any infirmity.
The State Government aggrieved by the judgment of the High Court filed Special Leave Petitions to this Court.
On the question whether; the lands of the respondents are lands to which the Urban Land (Ceiling and Regulation) Act, 1976 would apply.
Allowing the Appeals, ^ HELD: 1.
The finding of the High Court that by virtue of section 29(1)(a) of the Bombay Town Planning Act, 1954 the lands fell outside the definition of 'vacant land ' in the Urban Land Act, 1976 is unsustainable.
The High Court omitted to notice that the owners were entitled to construct buildings on the lands after the permission was accorded by the local authority.
[1005C] 2.
The object of the Urban Land Act, 1976 is to provide for the imposition of a ceiling on 'vacant land ' in urban agglomerations for the acquisition of such land in excess of the ceiling limit and to regulate the construction of buildings on such land and to bring about an equitable distribution of land in urban agglomerations to subserve the common good.
[1000G] 3.
The question whether a piece of land is a 'vacant land ' or not does not depend upon the fact whether a prudent man would put up a building on that land or not after the issue of a notification under section 4(1) of the Land Acquisition Act, 1894.
Nor a land will cease to be a 'vacant land ' merely because the permission of certain authorities is to be taken to put up a building thereon.
[1006G H] 999 4.
The proceedings under the land Acquisition Act, 1894 cannot have any bearing on the question whether the lands in question are 'vacant lands ' or not for the purposes of the ceiling law contained in the Urban Land Act, 1976.
When the lands in question or bulk of them are likely to be acquired under the ceiling law by paying a compensation as provided therein, it would not be proper to compel the Government to acquire them under the Land Acquisition Act, 1894.
[1007D] 5.
Sub clause (i) of clause (q) of section 2 of the Urban Land Act 1976 does not provide that a land on which the owner cannot construct a building will cease to be 'vacant land ' for the purposes of the Act.
[1007F] 6.
As long as construction of a building can be done on a land by some person or authority, the land does not get excluded from the definition of the expression 'vacant land ' under the Act.
The lands in the instant case, therefore, are 'vacant lands. ' [1007G] Smt.
Shanti Devi vs The Competent Authority under U.L. (C.R.) Act, 1976 Delhi and others, AIR 1980 Delhi 106, overruled.
Prabhakar Narhar Pawar vs State of Maharashtra and Another, AIR 1984 Bombay 122 and The State of U.P. and another vs Radha Raman Agarwal and another, AIR 1987 Allahabad 272, approved.


judgement:
Civil Appeal No. 1425 of 1973.
From the Judgment and Order dated 21.9.1973 of the Delhi High 1025 Court in S.A.O. No. 294 of 1972.
Dr. Shankar Ghosh and Rathin Das for the Appellant.
A.B. Rohtagi, Soli J. Sorabjee, Mrs. R. Swami, A.K. Verma and Ms. section Sethna for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J.
This is an appeal by special leave directed against the judgment and order of the High Court of Delhi dated the 21st September, 1973 in Second Appeal No. 294/72.
The High Court dismissed the Second Appeal of the appellant and confirmed the decision of the Rent Control Tribunal and ordered eviction.
Before the High Court three contentions were urged namely: 1.
The petition for eviction was not maintainable in the absence of a notice to quit while determining the tenancy, 2.
There was no sub letting or parting of possession by the appellant tenant in favour of R.C. Abrol & Company Pvt. Ltd., and 3.
If there was such sub letting, it had been made with the written consent of the landlord so was not actionable.
The Rent Control Tribunal confirmed the findings against the appellant in all the three contentions and the High Court also affirmed the findings of the Rent Control Tribunal.
We must note that no contention was raised before us as far as point No. 1, namely notice was not served.
The only contention before us was that there was no sub letting or parting of the possession by the appellant tenant in favour of R.C. Abrol & Company Pvt. Ltd. and secondly it was urged that if there was sub letting that had been made with the written consent of the landlord.
The Clause 14 of the lease deed in the instant case which provides, inter alia, the terms and conditions is as follows: "Clause 14 That the lessee undertakes not to sub let the premises to any other party without the written permission of the lessor, and that the lessee 's contractors M/s R.C. Abrol & Co. will share the premises with the permission of the lessor.
" 1026 This is in consonance also with provisions of Section 14(1)(b) of the Delhi Rent Control Act, 1958 (hereinafter called the Act) and Sub Sections (2) and (3) of Section 16 of the said Act.
The first question, therefore, is whether there was any sub letting and secondly if so was the same with the consent in writing of the landlord.
All these questions are essentially questions of facts and were held against the appellant by the Rent Control Tribunal which was the final Court of facts, applying the correct propositions of law.
This conclusion has been affirmed by the High Court.
Before us it was pointed out by Sree Shankar Ghosh, learned counsel for the appellant, that it was not necessary that the consent to sub letting should be in writing and what he contended was that it was necessary to have the consent and the manner of proving consent was provided in writing.
In other words, he contended that the provision which required that the consent should be in writing meant it was mandatory so far as it enjoined consent but it was directory so far as it said that such consent should be in writing.
Apart from the statute in this case, we find it difficult to accept this argument in view of the specific clause in the statute hereinbefore.
In South Asia Industries Private Ltd. vs section Sarup Singh and others; , Justice A.K. Sarkar as the learned Chief Justice then was, observed that the object of interpreting a statute was to ascertain the intention of the legislature in enacting it.
An interpretation defeating the object of a statute is, therefore, not permissible.
In paragraph 11 of the judgment at page 350 the learned Judge observed as follows: "I notice that the lease gave no express right to the lessee to assign with or without the consent of the lessor.
The lessee no doubt had that right under the Transfer of Property Act.
It may be that under the clause the lessee 's assignee would be included in the expression "lessee" as used in the lease; that is the entire effect of the clause.
But this would be so whether the lessor had consented to the assignment or not.
therefore this clause does not lead to the conclusion that the lessor had consented to the assignment.
It is of no assistance in the present case.
I am also inclined to the view that the consent contemplated by Section 14(1) proviso (b) is a direct consent to a contemplated assignment to a particular assignee.
See Regional Properties Ltd. vs Frankenschwerth, Clearly the clause in the case relied upon could not be a consent of this kind." 1027 It is true that Justice R.S. Bachawat had expressed the view that the consent could be general or special but in the case before the Court there was no conduct which showed that there was consent by the general words of the clause in the deed.
We are of the opinion on reading of the different provisions that the consent enjoined by bargain between the parties in this case must be in writing and must be to the specific sub letting.
That was the view of the Delhi High Court in Raja Ram Goyal vs Ashok Kumar and others, In Kartar Singh vs Shri Vijay Kumar and Another, [1978] All India Rent Conrol Journal 264 the High Court of Punjab & Haryana has also expressed similar view.
In the case of M/s Delhi Vanaspati Syndicate, Delhi vs M/s Bhagwan Dass Faqir Chand, Khanna, C.J. as he then was of the Delhi High Court observed at page 19 of the report: "Section 16 of the Act of 1958 holds the key to the interpretation of provisions of Clause (b) of sub section (1) of Section 14 of this Act as well as of Clause (b) of subsection (1) of section 13 of the Act of 1952.
It deals with restrictions on sub letting.
Sub section (1) of section 16 makes sub letting lawful though it was without the consent of the landlord provided that the sub letting has taken place before 9th day of June, 1952 and the sub tenant is in occupation of the premises at the time when the Act of 1958 came into force.
Sub section (2) of section 16 reiterates the provisions of Clause (b) of sub section (1) of Section 13 of the Act of 1952 and lays down that the sub letting after 9th day of June, 1952 without obtaining the consent in writing of the landlord shall not be deemed to the lawful.
It does not say that the requisite consent should be obtained before sub letting the premises and the consent obtained after sub letting will not enure for the benefit of the tenant.
However, sub section (3) of Section 16 prohibits subletting of the premises after commencement of Act of 1958 without the 'previous ' consent in writing of the landlord.
The use of word 'Previous ' in this sub section shows that where it was the intention of the legislature that the consent in writing should be obtained before sub letting, it said so specifically.
The absence of the word 'Previous ' in subsection (2) shows that it was not the intention of the legisla 1028 ture that the consent in writing could be obtained before sub letting.
Before the Act of 1952 a tenant could successfully show acquiescence of the landlord in sub letting to escape forfeiture of tenancy.
Since the absence of consent in writing by a landlord for sub letting gave rise to unnecessary litigation between a landlord and a tenant, the Act of 1952 required the consent of the landlord in writing after its commencement.
The purpose seemed to be that the consent of the landlord evidence by a writing would cut out litigation on this ground.
After all a landlord could always agree to sub letting either before or after sub letting of the premises.
For that reason no condition was laid down that such consent should be obtained before sub letting the premises.
" We are in agreement with this approach to the interpretation and it is in consonance with the view expressed by this Court earlier as mentioned hereinbefore.
In the aforesaid view of the matter we are of the opinion that it was necessary for the tenant to obtain the consent in writing to sub letting the premises.
The mere permission or acquiescence will not do.
The consent must be to the specific sub letting and must be in writing.
Indeed there was no implied permission also here.
Our attention was drawn to the fact that the landlord had written letter to the tenant and the landlord objected to the sub letting, the moment he realised the situation.
In that view of the matter we are clearly of the opinion that in this case there was no consent in writing on the part of landlord to such sub letting.
Dr. Shankar Ghosh tried to state that in view of the fact that the key of the premises was stated to be in the custody of the tenant, there was no sub letting.
It was the mere user, it was urged.
It is difficult to accept this contention.
The case of sub letting was accepted as has been found by all the Courts in this case.
Our attention was drawn to the certain observations on the question of directory/mandatory nature of the requirement that consent should be in writing.
Reliance was placed on the observations of Craies on Statute Law 7th Edition 261 wherein in the election case requirement that ballot paper had to be kept in a particular manner was considered to be 1029 directory and similarly it was submitted in this case the requirement of the consent to be in writing should be construed to be directory.
It was urged that the conduct of the parties indicated that there was no breach of the covenant.
We are unable to agree.
Here the situation is clearly different.
Here the requirement of consent to be in writing was to serve a public purpose, i.e., to avoid dispute as to whether there was consent or not.
Reliance was also placed on the observations of Maxwell in the Interpretation of Statutes 12th Edition at page 328 on the question of waiver: Everyone has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protection of the individual in his individual capacity.
We are, however, in this case unable to agree.
Firstly, in this case there was no case of waiver.
Waiver is a question of fact which has to be tested by facts and evidence.
There was no conscious relinquishment of the advantage of any statute.
No Court has gone into this fact.
It does not seem to have been urged before the High Court also.
Apart from this, in this requirement of the statute which is in the public interest there cannot be any question of waiver of a right, dealing with the rights of the tenants or the landlord.
In Chaplin vs Smith, [1926] 1 King 's Bench Division 198, it was held that physical possession was not sufficient, there must be legal possession.
The question was whether there was any consent in writing in this case.
We have noticed Clause 14 of the lease deed states that the lessee will not sublet the premises or any part to any party without the written permission of the lessor except that the lessee 's Contractors M/s R.C. Abrol & Co. Pvt. Ltd. will share the premises with the permission of the lessor.
So the permission of the lessor was there but the purpose was of the sharing with M/s R.C. Abrol & Co. Pvt. Ltd. was not of leasing the premises to any other entity.
For the purpose of this, it is suffice for us to state that Clause 14 as enjoined did give permission of leasing the premises to M/s. R.C. & Co. Pvt. Ltd. which was a different entity.
Dealing with this contention the High Court observed in its judgment that the company had been incorporated some time in 1957 after the commencement of the tenancy.
Company was a distinct legal entity.
It appears in this case that the company was composed of the different persons.
The High Court noted that there was never any 1030 consent in writing of the landlord to sub letting the premises to the incorporated company.
The permission must have been in writing and specific in the words of Justice Sarkar in South Asia Industries Private Ltd. vs Sarup Singh and others, (Supra).
In the case of Mehta Jagjivan Vanechand vs Doshi Vanechand, (A.I.R. 1972 Gujarat 6), Justice Thakkar as he then was of the Gujarat High Court observed at page 8 of the report: "A similar question was raised before the Madras High Court in Gundalpalli Rangamannar Chetty vs Desu Rangiah, AIR 1954 Madras 182.
A reference was made to Jackson vs Simons, , and the distinction drawn between physical possession and legal possession in that decision was taken into account in rejecting the contention of the landlord that there was a subletting or assignment.
It has been observed by the Madras High Court in paragraph (5) of the said decision as under: "In `Jackson vs Simons ' the question was whether the tenant broke a similar covenant.
The defendant who was the tenant, without the plaintiffs ' consent or knowledge agreed for the sum of Ls 7 per week to allow the proprietor of a night club carried on in a basement beneath the shop to the front part of the shop between the hours of 10.30 P.M. and 2 a.m. for the sale of tickets of admission to the club Romer J. held that the arrangement conferred to estate or interest in the demised premises but was a mere privilege or licence to use portion thereof, the defendant retaining the legal possession of the whole and did not therefore constitute a breach of the covenants not to assign, underlet or part with the demised premises or any part thereof." The Madras High Court also relied on an observation made by Scrutton L.J. in Chaplin vs Smith, , at p. 211, wherein it was observed: "He did not assign; nor did he underlet.
He was constantly on the premises himself and kept the key of them.
He did business of his own as well as business of the company.
In my view he allowed the company to use the premises while he himself remained in possession of them." 1031 Reliance was also placed on the Treatise of Foa on Landlord and Tenant, 6th Edn.
at page 323, where the law on the subject has been summarized in the following words: "The mere act of letting other persons into possession by the tenant, and permitting them to use the premises for their own purposes, is not so long as he retains the legal possesion himself, a breach of the covenant." After considering all these decisions, the High Court of Madras extracted the following principles and came to the conclusion that a mere taking in of partners did not amount to transferring of possession and did not constitute assignment or subletting.
Says the Madras High Court: "It is clear from the aforesaid decisions that there cannot be a sub letting 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.
Section 105 of the Transfer of Property Act defines a lease of immovable property as to transfer of right to enjoy such property.
Therefore to create a lease or sub lease a right to exclusive possession and enjoyment of the property should be conferred on another.
In the present case the exclusive possession of the premises was not given to the second respondent.
the first respondent continued to be the lessee, though in regard to the business carried on in the premises he had taken in other partners.
The partners are not given any exclusive possession of the premises or a part thereof.
The first respondent continues to be in possession subject to the liability to pay rent to his landlord.
The partnership deed also, as I have already stated, does not confer any such right in the premises on the other partners.
I, therefore, hold in the circumstances of the case the first respondent did not sublet the premises to the second respondent, and therefore he is not liable to be evicted under the provisions of Act No. 25 of 1949.
" The view taken by me is reinforced by the opinion expressed by the Madras High Court in the aforesaid decision.
A similar view has also been taken by Saurashtra High Court in Karsandas Ramji vs Karsanji Kalyanji, AIR 1953 Sau. 113 at pp.
114 & 115.
In my opinion, it is therefore clear 1032 that there has been no assignment or subletting in favour of the partners of the firm by the tenant so as to attract the Bar of section 13(1)(e) of the Rent Act.
The view taken by the lower Courts is correct and no exception can be taken thereto.
There is no dispute in the legal proposition that there must be parting of the legal possession.
Parting of the legal possession means possession with the right to include and also right to exclude others.
That is, in our opinion, is the matter of fact.
In this case, it has been found that there was a right of possession in favour of the sub lessee R.C. Abrol & Co. Pvt. Ltd. and right to exclude indeed as it appears from the narration of the fact that the company has gone into liquidation and the official liquidator has taken possession of the premises on behalf of the liquidator and that must be on the basis that it was the asset belonging to the company.
In that aforesaid view of the matter we are unable to accept this proposition that there was no sub letting.
Dr. Shankar Ghosh drew our attention to the observations of the High Court of Delhi in the following three cases: Vishwa Nath and Anr.
vs Chaman Lal Khanna & Others, Shri Gurdial Singh vs Shri Brij Kishore & Others, [1970] Delhi Law Times 592.
M/s Reliable Finance Corporation (P) Ltd. vs M/s Clearing House and Agencies Private Ltd & Ors.
[1984] 2 Rent Control Reporter 449.
Madras Bangalore Transport Co. (West) vs Inder Singh and Others, He contended that in the light of the aforesaid authorities in this case, there was no parting of legal possession in favour of the sublessee.
We are unable to accept this position.
In the instant case, exclusive possession was given to the sub lessee and the tenant had transferred the right to possess in that portion.
It is clear that subletting was done without the consent in writing of the landlord.
If that is so, there was inevitably breach of the covenant.
In that view of the matter the High Court was right in upholding 1033 the order of the Rent Control Tribunal and directing eviction of the appellant.
The appeal, therefore, must fail and is accordingly dismissed.
In view of the fact that the appellant has been in possession of the premises for quite some time and to make its arrangements for shifting we direct the decree for eviction shall not be executed before 30.6.1988 provided the appellant files the usual undertaking in this Court within four weeks from today.
Mesne profits will be payable from 1st of December 1987 @ Rs.7,000 per month until the possession is delivered.
That the appellant will hand over vacant and peaceful possession of the premises to the respondents on or before 30.6.1988 from today.
That the appellant will pay to the respondent arrears of rent, if any, within one month from today.
That the appellant will pay to respondent further compensation for use and occupation of the premises month by month before 10th of every month.
That the appellant will not induct any other person in the premises.
The Court further directs that in default of compliance with any one or more of these conditions or if the undertaking is not filed as required within the stipulated time, the decree shall become executable forthwith.
N.V.K. Appeal dismissed.

summary:
% The respondent landlord sought eviction of the appellant tenant on the ground of having sub let without written consent the portion in his occupation in favour of M/s. R.C. Abrol & Co. The appellant resisted the petition for eviction, contending that it was not maintainable in the absence of a notice to quit while determining the tenancy, that there was no sub letting or parting of possession by the appellant in favour of M/s. R.C. Abrol & Co., in view of Clause 14 of the Lease agreement, which provided: "That the lessee undertakes not to sub let the premises to any other party without the written permission of the lessor and that the lessee 's contractors M/s.
R.C. Abrol and Co. will share the premises with the permission of the lessor".
The Rent Control Tribunal ordered eviction of the appellant on the ground of sub letting.
The High Court dismissed the Second Appeal of the appellant and confirmed the decision of the Rent Control Tribunal ordering eviction.
In the appeal to this Court by special leave it was contended for the appellant, that there was no sub letting or parting of possession by the appellant tenant in favour of M/s. R.C. Abrol & Co. (P) Ltd., and that if there was sub letting that had been made with the written consent of the landlord.
Dismissing the Appeal, ^ HELD: 1.
Sections 14(1) proviso (b), 16(2) and (3) of the Delhi Rent Control Act, 1958 require the tenant to obtain consent of the landlord in writing for sub letting of the premises.
The purpose of such written consent was that it would cut out litigation on this ground.
Mere permission or acquiescence would not do.
The consent must be to the specific sub letting and must be in writing.
There is no implied permission.
[1026A, 1028D] 1024 South Asia Industries Private Ltd. vs section Sarup Singh & others; , ,referred to.
Raja Ram Goyal vs Ashok Kumar and others, ; Kartar Singh vs Shri Vijay Kumar and Another, and M/s. Delhi Vanaspati Syndicate, Delhi vs Bhagwan Dass Faquir Chand, ,approved.
Everyone has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protection of the individual in his individual capacity.
Waiver is a question of fact which has to be decided by facts and evidence.
[1029C] Chaplin vs Smith, [1926) 1 King 's Bench Division 198, referred to.
In the instant case, there was no question of waiver.
There was no conscious relinquishment of the advantage of any statute.
No Court has gone into this fact.
It does not seem to have been urged before the High Court also.
As this requirement of the statute is in the public interest there cannot be any question of waiver of a right, dealing with the rights of the tenants or the landlord.
[1029D] 3.
To constitute sub letting there must be parting of the legal possession.
Parting of the legal possession means possession with the rights to include and also the right to exclude others.
This is a question offact.
[1032B] Mehta Jagjivan Vanechand vs Doshi Vanechand, A.I.R. 1972 Gujarat 6, referred to.
In the instant case, exclusive possession was given to the sublessee, R.C. Abrol & Co. and the tenant has transferred the right to possess in that portion.
It is clear that the sub letting was done wihout the consent in writing of the landlord.
There was, therefore an inevitable breach of the covenant.
The High Court was therefore right in upholding the order of the Rent Control Tribunal and directing eviction of the appellant.
[1032G 1033A]