judgement:
ivil Appeal No. 5052 of 1985.
From the Judgment and Order dated 5.7.1989 of the Rajas than High Court in Regular Civil Second Appeal No. 240 of 1978.
B.D. Sharma for the Appellants.
D. Bhandari for the Respondent.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
1.
The appellants had leave under 9 Article 136 to appeal against the judgment and decree of the High Court of Rajasthan at Jaipur Bench in Second Appeal No. 240 of 1978 dated July 5, 1985 reversing the decrees of the Courts below and decreeing the suit for ejectment of the appellants from the demised shop in Jaipur.
The facts lie in a short compass: that Smt.
Anandi, wife of the first appel lant and the mother of the second appellant, Nand Kishore had lease of the demised premises for 11 months from May 1, 1964 on payment of monthly rent of Rs. 18 which expired on March 31, 1965.
The respondent landlord terminated the lease by a notice under section 106 of Transfer of Property Act but she remained in possession and enjoyment of the shop carrying on small kirana business.
She died in September, 1966.
The demised premises are governed by the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (Act 26 of 1950 for short the 'Act ').
Section 13(1) thereof, postulates that "notwithstanding anything contained in any law or a contract, no court shall pass any decree or make any order in favour of the landlord, whether in execution of a decree or otherwise evicting the tenant so long as he is ready and willing to pay rent thereof to the full extent allowable by the Act" unless the landlord proves to the satisfaction of the court any one of the grounds enumerated in Clauses 'a ' to 'k ' thereof.
The action for ejectment was initiated by the respondent on the premise that on the death of the tenant, the appellants have no right to continue in occupation of the demised premises.
The findings recorded by all the courts are that Smt.
Anandi was the tenant.
The appellants during her life time, had not carried on the business with her till date of her death.
The Trial Court dismissed the suit on the ground that Smt.
Anandi paid and the respondent accepted the rent after determination of the lease.
So she was a tenant holding over.
During the pendency of the appeal, the Act was amended through Rajasthan Prem ises (Control of Rent and Eviction) Ordinance 26 of 1975 which was replaced by Act 14 of 1976 (for short the 'Amend ment Act ').
Therein the definition of 'Tenant ' was amended by Section 3(ii) of the Amendment Act introducing to Section 3 Clause (vii), thus: "(vii) "tenant" means (a) The person by whom or on whose account or behalf rent is, or, but for a contract express or implied, would be payable for any premises to his landlord including the person who is continuing in its possession after the termi nation of his tenancy otherwise than by a decree for evic tion passed under the provisions of this Act; and 10 (b) In the event of death of the person as is referred to in sub clause (a), his surviving spouse, son, daughter and other heir in accordance with the personal law applica ble to him who had been, in the case of premises leased out for residential purposes, ordinarily residing and in the case of premises leased out for commercial or business purposes, ordinarily carrying on business with him in such premises as member of his family upto his death.
" Consequently, the appellants amended the written state ment adding therein paragraphs Nos. 16 and 17 contending that they have been jointly carrying on the business in the demised premises alongwith Smt.
Anandi Bai, therefore, they are entitled to the continuance of the tenancy.
The amend ment was allowed by the Appellate Court and it called for a finding from the Trial Court in that regard.
After giving an opportunity to both the parties to adduce evidence afresh the Court recorded the finding in the negative.
On its receipt and consideration thereof the appellate court af firmed the finding but confirmed the decree of the Trial Court on other grounds.
The High Court held that. as the appellants had not carried on the business with the tenant during her life time as family business they were not enti tled to the benefit of the amended definition of the tenant.
Accordingly decreed the suit.
(2) The contention of the learned counsel for the appel lants is that the lease hold right is an heritable estate and on death of the tenant in September, 1966, the succes sion thereto was opened and the appellants, being Class I heirs under the inherited by intestate succession the lease hold estate in the tenancy rights held by Smt.
Anandi.
The said right received express recognition under the Amendment Act which is not in deroga tion to the personal law.
The High Court, thereby, committed manifest error of law.
Shri Dalveer Bhandari, learned coun sel for the respondent, on thorough preparation of the case, has vehemently resisted the contention.
He also circulated written arguments.
According to him preceding the Amendment Act the commercial or business tenancy was not heritable as held in J.C. Chaterjee vs Sri Kishan. ; by the High Courts of Rajasthan, Punjab and Haryana and Delhi.
For the first time the right to succession has been created under the Amendment Act.
The finding recorded by all the courts is that during the life time and till the date of death of the tenant, Smt.
Anandi, the appellants did not carry on business with her as family business in the 11 demised premises.
On determination of tenancy the appellants became trespassers.
Thereby the appellants became disenti tled to remain in possession of the demised premises.
It is seen that Section 13(1) of the Act engrafts non obstenti clause, namely, "notwithstanding anything contained in any law or contract no court shall pass any decree of eviction against the tenant so long as the tenant is ready and will ing to pay rent therefore to the full extent allowable by the Act" unless one or other ground or grounds specified in Clauses 'a ' to 'k ' of sub section (1) of Section 13 are established.
Admittedly, the settled legal position preced ing the amendment act, prevailing in the State of Rajasthan was that the lease hold rights of the tenanted premises for commercial or business purposes governed by the Act is not heritable.
It is a personal right to the tenant.
A reading of the amendment to the definition of 'tenant ' in Section 3 Sub Clause (vii)(b) makes the legislative intent manifest that from the date of the Amendment Act came into force, on the death of the tenant, his surviving spouse, son, daughter and other heir, in accordance with personal law as applica ble to him, who had been, in the case of the premises leased out for residential purposes, ordinarily residing and, in the case of premises leased out for commercial or business purposes, ordinarily had been carrying on business with him/her in such premises as members of his/her family upto his/ her death.
Therefore, under the amended definition of tenant, if one seeks to make avail of the benefit of statu tory tenancy under the Act, he must establish to the satis faction of the court that the surviving spouse, son or daughter and other heir, in case of residential purposes, he/she/they ordinarily had been residing in the premises along with the tenant and continued to do so till date of death of the tenant.
Similarly, in respect of premises leased out for commercial or business purposes it must be established that the surviving spouse or son or daughter and the heir as the case may be ordinarily had been carrying on the business during the life time of the tenant as members of the family in the demised premises and continued to do the business till date of the death of the tenant.
In other words to avail of the statutory right under section 3(viii)(b) there must continue to subsist the unity of action and continuity of membership of the family between the deceased tenant and the spouse etc.
The break in either of the links snaps off the right denuding the continuity of the statutory tenancy.
(3) Every tenancy is rounded, initially, upon a con tract.
The contractual tenant has an estate or property in the lease hold interest of the tenancy and his heritability is an incidence of the tenancy.
Despite termination of the tenancy this Court ecologised the resultant consequences in Damadilal & Ors.
vs Parashram & Ors., [1976] Suppl.
12 SCR 645 in which three Judges Bench held that: "It cannot be assumed, however, that with the determination of the tenancy the estate must necessarily disappear and the statute can only preserve his status of irremovability and not the estate he had in the premises in his occupation.
" The facts in that case were that the tenancy of business premises was governed by the Madhya Pradesh Accommodation Control Act, 1961.
The contracted tenancy was determined and a suit for eviction from a shop was laid in the Civil Court against the tenant.
During its pendency he died and his legal representatives were sought to come on record which was resisted.
The word 'tenant ' had been defined under sec tion 2(1) of that Act, thus: "a person by whom or on whose account or behalf the rent of any accommodation is, or, but for a contract express or implied would be payable for any accommodation and includes any person occupying the accommodation as a subtenant and also any person continuing in possession after the termina tion of his tenancy whether before or after the commencement of this Act; but shall not include any person against whom any order or decree for eviction has been made" he definition is the same as in the present case on hand under Clause (a) of Sec.
3(vii) of the Rajasthan Act.
It was contended that the tenancy came to a terminus with its determination by issuance of notice under section 106 of Transfer of Property Act and the legal representatives do not succeed to the estate of the deceased tenant so as to prosecute the proceedings.
While repelling that contention, noticing the definition referred to above, Gupta, J. speaking for the court held that: "The definition makes a person continuing in possession after the determination of his tenancy a tenant unless a decree or order for eviction has been made against him, thus putting him on par with a person whose contractual tenancy still subsists.
The incidents of such tenancy and a contrac tual tenancy must, therefore, be the same unless any provi sion of the Act conveyed a contrary intention.
That under this Act such a tenant retains an interest in the 13 premises, and not merely a personal right of occupation, will also appear from section 14 which contains provisions restricting the tenant 's power of subletting .
There is nothing to suggest that this section does not apply to all tenants as defined in Section 2(i).
A contractual tenant has an estate or interest in premises from which he carves out what he gives to the sub tenant.
Section 14 read with section 2(i) makes it clear that the so called statuto ry tenant has the right to sub let in common with a contrac tual tenant and this is because he also has an interest in the premises occupied by him." Accordingly it was held that they succeeded as legal representatives to the lease hold interest of the commercial premises.
(4) How to resolve the controversy between the ratio therein and that of majority contra view taken in Anand Niwas (Pvt.) Ltd. vs Anandji Kalvanji Pedhi & Ors., ; and Jagdish Chander Chaterjee & Ors.
vs Sri Kishan & Anr., (supra), the later case on which heavy reliance was placed by Mr. Dalveer Bhandari that arose directly under the Rajasthan Rent Control Act, referred to the Constitution Bench in Smt.
Gian Devi Anand vs Jeevan Kurnar & Ors.
, The facts therein were that the defini tion of tenant under the unamended Delhi Rent Control Act, similar to Section 3(vii)(a) of the Act was in vogue in the Delhi Rent Control Act, 1958.
The premises in question therein was commercial premises.
The definition of tenant was amended with retrospective effect.
The contention raised was that the amended Act accords heritability to residential tenancy while omitting the benefit to commercial or business tenancy.
The legal representatives of the deceased tenant, did not acquire heritable interest in the commercial tenancy under that Act.
A.N. Sen, J. speaking for the Constitution Bench surveyed the case law in extenso and upheld the view in Darnadilal 's case.
It was held at p. 24 to 25 thus: "For an appreciation of the question it is necessary to understand the kind of protection that is sought to be afforded to a tenant under the Rent Acts and his status after the termination of the contractual tenancy under the Rent Acts.
It is not in dispute that so long as the contrac tual tenancy remains subsisting, the contractual tenan cy creates heritable rights; and, on the death of a 14 contractual tenant, the Heirs and legal representatives step into the position of the contractual tenant, and in the same way on the death of a landlord the heirs and legal represen tatives of a landlord become entitled to all the rights and privileges of the contractual tenancy and also come under all the obligations under the contractual tenancy.
The Rent Acts seek to preserve social harmony and promote social justice by safeguarding the interests of the tenants mainly and at the same time protecting the legitimate interests of the landlords.
Though the purpose of the various Rent Acts appear to be the same, namely, to promote social justice by affording protection to tenants against undue harassment and exploitation by landlords, providing at the same time for adequate safeguards of the legitimate interests of the landlords, the Rent Acts undoubtedly lean more in favour of the tenants, for whose benefit the Rent Acts are essentially passed.
It may also be noted that various amendments have been introduced to the various Rent Acts from time to time as and when situation so required for the purpose of miti gating the hardship of tenants . .
Though provisions of all the Rent Control Legislation is that a contractual tenant on the termination of the contractual tenancy is by virtue of the provisions of the Rent Acts not liable to be evicted as a matter of course under the ordinary law of the land and he is entitled to remain in possession even after determination of the contractual tenancy and no order or decree for eviction will be passed against a tenant unless any ground which entitles the landlord to get an order or decree for possession specified in the Act is established.
In other words, the common feature of every Rent Control Act is that if affords protection to every tenant against evic tion despite termination of tenancy except on grounds recog nised by the Act and no order or decree for eviction shall be passed against the tenant unless any such ground is established to the satisfaction of the Court . " (5) The seven Judges Bench of this Court reported in V. Dhanpal Chettiar vs Yesodai Ammal.
; while considering the effect of termination of the tenancy under Section 106 of Transfer of Property Act vis a vis right of the tenant under T.N. Buildings (Lease & Rent) Control Act, 1960 held that 'various State Rent Control Acts make serious encroachment in the field of freedom of 15 contract.
It does not permit the landlord to snap his rela tionship with the tenant merely by his act of serving a notice to quit on him.
In spite of the notice, the law says that he continues to be a tenant and he does so enjoying all the rights of a lessee and at the same time is deemed to be under all the liabilities such as payment of rent etc., in accordance with law.
Similarly while considering the lan guage of Section 10(1) of the A.P. Building (Lease, Rent and Eviction Control) Act, 1960 similar to Section 13(1) of the Act, whether the statutory lease is to be terminated by issuance of notice under Section 106 of the Transfer of Property Act, it was further held at p. 352 B that "even a special provision is provided by way of abundant precaution only that without this a tenant continuing in possession after the termination of the contractual tenancy and until an eviction order is passed against him, continues on the same terms and conditions as before and he cannot be evicted unless a ground is made out for his eviction according to the State Rent Act".
In Gian Devi Anand 's case the Constitu tion Bench further held at p. 32 F that: "The termination of the contractual tenancy in view of the definition of tenant in the Act does not bring about any change in the status and legal position of the tenant, unless there are contrary provisions in the Act; and the tenant no with standing the termination of tenancy does enjoy an estate or interest in the tenanted premises.
This interest or estate which the tenant under the Act, despite termination of the contractual tenancy, continues to enjoy creates a heritable interest in the absence of any provision to the contrary . at p. 33E to G it was held that: As the status and rights of a contractual tenant even after determination of his tenancy when the tenant is at times described as the statutory tenant, are fully protected by the Act and the heirs of such tenants become entitled by virtue of the provisions of the Act to inherit the status and position of the Statutory tenant on his death, the LegislatUre which has created this right has thought it fit in the case of residential premises to limit the rights of the heirs in the manner and to the extent provided in Sec tion 2(1) (iii).
It appears that the Legislature has not thought it fit to put any such restrictions with regard to tenants in respect of commercial premises in this Act." 16 at p. 35D to G, it was observed that: So long as the contractual tenancy of a tenant who carries on the business continues, there can be no question of the heirs of the deceased tenant not only inheriting the tenancy but also inheriting the business and they are entitled to run and enjoy the same.
We have earlier held that mere termination of the contractual tenancy does not bring about any change in the status of the tenant and the tenant by virtue of the definition of the 'Tenant ' in the Act and the other Rent Acts continue to enjoy the same status and posi tion unless there be any provisions in the Rent Acts which indicate to the contrary.
The mere fact that in the Act no provision has been made with regard to the heirs of tenants in respect of commercial tenancies on the death of the tenant after termination of the tenancy, as has been done in the case of heirs of the tenants of residential premises, does not indicate that the legislature intended that the heirs of the tenants of commercial premises will cease to enjoy the protection afforded to the tenant under the Act . . at p. 36 B to 37 A it was concluded that: We are of the opinion that in case of commercial premises governed by the Delhi Act, the Legislature has not thought it fit in the light of the situation at Delhi to place any kind of restriction on the ordinary law of inheritance with regard to succession.
It may also be borne in mind that in case of commercial premises the heirs of the deceased tenant not only succeed to the tenancy rights in the premises but they succeed to the business as a whole.
It might have been open to the Legislature to limit or restrict the right of inheritance with regard to the tenancy as the Legislature had done in the case of the tenancies with regard to the residential houses but it would not have been open to the Legislature to alter under the Rent Act, the Law of Succes sion regarding the business which is a valuable heritable right and which must necessarily devolve on all the heirs in accordance with law.
The absence of any provision restrict ing the heritability of the commercial tenancies notwith standing the determination of the contractual tenancies will devolve on the heirs in accordance with law and the heirs who step into the position of the deceased tenant will continue to 17 enjoy the protection afforded by the Act and they can only be evicted in accordance with the provisions of the Act.
There is another ' significant consideration which, in our opinion, lends support to the view that we are taking.
Commercial premises are let out not only to individuals but also to Companies,.
Corporation or anybody with juristic personality, question of the death of the tenant will not arise.
Despite the termination of the tenancy, the Company or the Corporation or such juristic personalities, however, will go on enjoying the protection afforded to the tenant under the Act.
It can hardly be conceived that the Legisla ture Would intend to deny to one class of tenants, namely, individuals the protection which will be enjoyed by the other class, namely, the Corporations and Companies and other bodies with juristic personality under the Act.
If it be held that commercial tenancies after the termination of the contractual tenancy of the tenant are not heritable on the death of the tenant and the heirs of the tenant are not entitled to enjoy the protection under the Act, an irrepara ble mischief which the Legislature would never have intended is likely to be caused.
" (6) On the facts of the case it was held that the tenant who continues to remain in possession even after the termi nation of the contractual tenancy till a decree for eviction against him is passed, continues to have an estate or inter est in the tenanted premises and tenancy rights in respect of commercial premises are heritable.
There is no provision in the Act regulating the rights of its heirs to inherits the tenancy rights of the tenanted commercial or business premises.
The tenancy rights devolved on the heirs under the ordinary law of succession.
Accordingly it was held that the tenancy rights of Wasti Ram devolved on all the heirs of Wasti Ram on his death.
The ratio with equal force applies to the facts of this case.
The unamended definition of tenant under section 3(vii) of the Act reads thus: "tenant" means the person by whom the rent is, or but for a contract express or implied would be, payable for any prem ises and includes any person holding or occupying the prem ises as a sub tenant, or any person continuing in possession after the termination of a tenancy in his favour otherwise than under the provisions of the Act.
" 18 This definition is mutatis mutandis same as the one defined under Madhya Pradesh Act and also the Delhi Rent Act.
Equally it would be tile same under the amended clause 'a ' of section 3(vii) with slight elongation.
Under the heirs of the deceased tenant are entitled to succeed, not only to his business, but also to his tenan cy rights under the Rent Act which protects the heirs from ejectment except in accordance with that Act.
Therefore, despite the termination of the tenancy, the tenancy rights are heritable and the heirs of the tenant are entitled to enjoy the protection of the Act.
(7) The ratio in Bhavarlal Labhchand Shah vs Kanaiyalal Nathalal Intawala, does not help the re spondent.
The facts therein was that the tenant by testimen tary disposition "will" bequeathed his occupancy rights in the tenanted property in favour of the stranger legatee.
The question was whether such a legatee is entitled to the benefit of continuance of tenancy under Bombay Rents, Hotel and Lodging House Rules Control Act.
It was held that since the bequest was in favour of the third party, the testator thereby, cannot confer rights under the provisions the Rent Act on the stranger who was not a member of the family.
The march of law culminated in Gian Devi Anand 's case knocked of the bottom of A.C. Chaterjee 's ratio.
Simi larly the foundation in Sita Ram vs Govind, [1969] Weekly Law Notes p. 108; Balkesh and another vs Shanti Devi and others, reported in 1972 Rent Control Tribunal p. 285 and Mohan Lal vs Jaipur Hosiery MIlls Pvt. Ltd. reported in 1974 Rent Control Journal p. 240 has been shaken and no longer remain to be good law.
(8) Admittedly Smt.
Anandi was inducted into possession of the demised property under a contract of tenancy which was determined by issuance of notice under Section 106 of Transfer of Property Act.
Even thereafter she continued to remain in possession as statutory tenant under the Act.
The finding of Trial Court as affirmed by the first appellate court is that the respondent landlord after termination of tenancy received the rent from her and thereby she became tenant holding over till date of her death.
Anandi enjoyed the status as a statutory tenant of the premises even after the determination of the tenancy.
Notwithstanding the termination of the contractual tenancy the jural relationship of the landlord and tenant between the respondent and Smt.
Anandi under the Act was not snapped off.
The heritable property or interest in the lease hold right in the tenancy continued to subsist in the tenant Anandi.
19 On her death, the rights to succession to an estate of the deceased owner vested immediately on his/her than near est heirs and cannot be held in abeyance except when a nearer heir is then in the womb.
The vested right can not be divested except by a retrospective valid law.
The appellants by virtue of intestate succession under , being Class I heirs, succeeded to the heritable inter est in the lease hold right of a demised premises held by Smt.
Anandi.
They, thereby, stepped into the shoes of the tenant.
They continued to remain in possession as on the date of the suit as statutory tenants.
Thereby, they are entitled to the protection of their continuance as a statu tory tenant under the Act.
The succession having been opened to the appellants and succeeded in September, 1966 to the estate of the tenant without any hiatus and restriction on the heritable interest in the lease hold right held by the tenant Smt.
Anandi, the Amendment Act being admittedly prospective in operation, does not apply to the facts of the case and does not have the effect of divesting their vested rights in the lease hold held by the tenant.
They are enti tled to enjoy the tenancy rights without any restrictions or hedge put by the Amendment Act.
We, thereby, hold that the Amending Act does not apply to the facts of this case.
But the appellants succeeded to the heritable interest in the lease hold right in the demised premises governed by the Act subject to the rights and limitations prescribed under the Act and also subject to the rights in favour of the respond ent created under section 13(1) (a) to (k) and other provi sions of the Act.
(9) Accordingly, we have no hesitation to hold that the appellants are entitled to remain in possession of the demised shop in question till the appellants are duly evict ed in accordance with the provisions of the Act as amended from time to time.
The appeal is accordingly allowed and the decree and judgment of the High Court is reversed and that of the Trial Court is restored.
The suit, accordingly, stands dismissed but in the circumstances, each party is directed to bear their own costs throughout R.N.J. Appeal dis missed.

dataset_name: IN-Abs

summary:
Anandi Bai wife of Appellant No. 1 and mother of Appellant No. 2 had a lease of suit shop in Jaipur for a period of 11 months beginning May 1, 1964 wherein she was carrying on small kirana business.
The Respondent landlord terminated the lease by a notice issued under section 106 of the Transfer of Property Act at the end of the term of the lease.
However Anandi Bai continued to remain in possession and the landlord went on accepting the rent even after the termination of her tenancy and thus she became a statutory tenant.
She died sometime in September 1966.
Respondent landlord initiated action for ejectment of her heirs the appellants herein from the demised shop on the ground that on the death of Anandi Bai the appellants have no right to continue in occupation of the premises.
The trial court dismissed the suit on the finding that Anandi Bai paid and the respondent accepted the rent after the determination of the lease, so she was holding over.
The first appellate court confirmed the decree of the trial court though on different grounds.
Second appeal by the plaintifflandlord was allowed by the High Court holding that since the heirs of the tenant had not carried on the business with Anandi Bai during her life time as family business they were not entitled to the benefits of the definition of 'tenant ' as amended by Section 3(ii) of the Rajasthan Premises (Control) of Rent and Eviction) Amendment Act, 14 of 1976 and accord ingly reversing the decrees of the courts below, the suit for ejectment of the appellants from the demised shop was decreed.
Allowing the appeal by special leave against the Judg ment and Decree of the High Court preferred by the heirs of the tenant Anandi Bai, this Court, HELD: Under Hindu Succession Act the heirs of the de ceased tenant are entitled to succeed, not only to his/her business but also to his/her tenancy rights under the Rent Act which protects the 7 8 heirs from ejectment except in accordance with that Act.
Therefore, despite the termination of the tenancy, the tenancy rights are heritable and the heirs of the tenant are entitled to enjoy the protection of the Act.
[18A B] Admittedly Smt.
Anandi Bai was inducted into possession of the demised property under a contract of tenancy which was determined by issuance of a notice under Section 106 of Transfer of Property Act.
Even thereafter she continued to remain in possession as statutory tenant under the Act.
The finding of the Trial Court as affirmed by the First Appel late Court is that the respondent landlord after termination of tenancy received the rent from her and thereby she became tenant holding over till the date of her death.
[18F G] The appellants by virtue of intestate succession under Hindu Succession Act, being Class I heirs, succeeded to the heritable interest in the lease hold right of the demised premises held by Smt.
Anandi Bai.
They, thereby, stepped into the shoes of the tenant.
They continued to remain in possession as on the date of the suit as statutory tenants.
Thereby, they are entitled to the protection of their con tinuance as a statutory tenant under the Act.
[19B C] J.C. Chaterjee vs Sri Kishan, ; ; Damadi lal & Ors.
vs Parashram & Ors.
, ; Anand Niwas (Pvt.) Ltd. vs Anandji Kalyanji Pedhi & Ors., ; ; Smt.
Gian Devi Anand vs Jeevan Kumar & Ors., ; V. Dhanpal Chattiar vs Yesodai Ammal, ; Bhavarlal Labhchand vs Kanaivalal Nathalal Intawala, , referred to.


judgement:
ivil Appeal No. 1416 of 1975.
From the Judgment and Order dated 2.12.
1974 of the Madhya Pradesh High Court in M.P. No. 565 of 1974.
Sakesh Kumar and S.K. Agnihotri for the Appellants.
S.S. Khanduja, Y.P. Dhingra and B.K. Satija for the Respondents.
J. This is an instance of how a resourceful mind can find ingenious method to circumvent the law.
The first respondent in this case is the Home Decorators & Finance (P) Ltd. of which the second respondent is the Managing Director.
The appellant Government collects enter tainment tax under the Entertainment Duty and Advertisement Tax Act, 1936 (hereinafter referred to as the 'Act ') from the organisers of the entertainment programmes whenever the entries to such programmes are charged.
The entertainment tax is recovered at the rate of 36 per cent of the fee charged.
In order to evade this tax, the respondents evolved a stratagem and organised two 1002 performances called "Mahendar Kapoor Nite" in a local audi torium, namely, Manas Bhawan Hall Wright Town Jabalpur, on 7th and 8th July, 1974.
Although the Articles and the Memo randum of Association of the 1st Respondent did not permit them to do so, with a view both to bring the said programmes within the scope of the Articles of Association and to evade the payment of the tax, the respondents issued advertise ments of the programmes in a local newspaper giving out that the programmes were being arranged to encourage savings.
The scheme was that all those who wanted to attend the programme will become members of a group which they called "Nav Nirman Group" by paying an admission fee of Rs.2 which was non refundable and a membership subscription of Rs. 10 which was refundable after 10 years.
The advertisements also stated that since there was an overwhelming demand, the performance would be staged on two dates, namely, the 7th and 8th July, 1974 and that the membership forms would be available at the site on the dates concerned and that the entry to the pro gramme would be strictly on the production of the invitation card as well as the membership card.
It appears that on July 7, 1974 and July 8, 1974, as many as 3189 and 4649 gullible persons respectively fell victims, and paid both the admis sion fee as well as the membership subscription.
The re spondents collected both the membership forms as well as the receipts for payment from the said persons at the time of giving them the entry to the programme.
The result was that the persons concerned were left neither with the membership form nor with the receipts for the money they had paid.
Needless to say that although the promise was that such performances would be repeated for 10 years hence, and the members concerned would have an entry to the programmes on the basis of the membership cards, neither the membership cards were issued, nor the admission fee or the membership subscription were returned to the members, nor the perform ances were staged.
In effect, the respondents made good with the money they had collected ostensibly for promoting sav ings.
Thus both the members of the public were defrauded of their moneys as well the State Government of their taxreve nue.
The District Excise Officer who was also the Enter tainment Tax Collector under the said Act, sensing the ploy had, however, taken precaution to check, on both the said dates, the receipts and the amounts received by the respond ents and had dexterously prepared a panchnama at the spot.
He determined the amount of tax recoverable on the said collections, and issued to the respondents two separate 1003 notices on July 9, 1974 demanding the tax along with the dutysurcharge thereon for the collections made on 7th and 8th July, 1974 respectively.
The total amount so demanded by both the notices was Rs.35,429.76.
The respondents challenged the notices by a writ petition under Article 226 of the Constitution before the High Court.
The High Court by the impugned decision held that the assessment of the tax made by the Officer was arbitrary because, firstly, there was no allegation that the invitation cards which were issued were sold, and secondly, the subscription fee of Rs. 10 recovered from each member was not divided by 10 which it was necessary to do, for the entertainment tax could be collected only on Re. 1 per year for the next 10 years.
The High Court, therefore, allowed the writ petition and quashed the notices.
It also appears that the respondents had paid Rs.5,000 in part payment of the amount demanded under the notices.
The High Court, therefore, also directed the appellants to refund the said amount as being "exacted" from the respondents.
We are afraid ,.
the High Court completely missed the crucial point and, therefore, mis directed itself.
The admitted facts as stated above were that the respondents had collected in all Rs. 12 from each of the members out of which Rs.2 were non refundable being the so called admission fee and Rs. 10 were refundable only after 10 years.
The "members" were not issued the membership cards nor were they left either with any trace of their membership forms or receipts for the payments they had made.
Instead they were handed over entrance slips during interval which were col lected at the door.
The result was that even if the "mem bers" were to claim an entry for programmes, if any in future, they would not have been able to do so.
As it hap pened further, in fact, no programmes were ever staged at any time thereafter.
The so called 'Nav Nirman Group" did not have any legal existence.
It was an amorphous body.
The rules and regulations framed for the said body further showed some interesting features as follows: "For the purpose of Prizes there shall be Five Sub groups of one lakh members each.
After every Sub group of one lakh members there shall be total 4280 prizes divided into 20 half yearly draws and valuing total amount of Rs.5 lakhs.
The date of the First Draw will be announced through News papers.
Every member, irrespective of whether he has received any 1004 prize(s) or not shall be entitled to the refund of his deposit of Rs. 10 after the maturity of the duration of the group, i.e., 10 years, along with a bonus of Rs.2 on surren der of the official Receipt cum Membership Evidence issued by the Company.
Duration of the Group shall be commenced from the date of the 1st Draw.
x x x x x x For the purposes of Bumper Draw there shall be 50 SubGroups of 10,000 continued members each and after every such sub group there shall carry various valuable prizes to the tune of about Rs.2,50,000.
Members of incomplete subgroup of 10,000 continued members shall be given an extra bonus of Rs.25 in the shape of articles, the list of which shall be declared nearing maturity of the Group, instead of partici pating in Bumper Draw.
X X X X X X Every member will be issued a receipt while being admitted as a member and the number of such receipt shall be his membership Number also.
No separate pass book will be is sued.
The receipt itself shall be treated as final and conclusive evidence of membership.
X X X X X X After the completion of 1st sub group one lakh members the First Draw shall be conducted, but in case total membership of the sub group does not attain the target necessary to form the sub group before date of the draw (which shall be announced through Newspapers) then the remaining membership number of the sub group shall be treated as the Company 's membership numbers and any prize/benefit accruing through these numbers as a result of the draw shall remain the Company 's property.
The Company may allot such membership numbers subsequently to the new applicants for the remaining period with the subsequent benefits only.
The same rule shall apply to every further sub group of one lakh members.
X X X X X X 1005 Membership of the Group for 10 years and cannot be cancelled or withdrawn by the member before maturity of the Group.
Prizes and Film Star show are added incentive and not Part of the Scheme and are not binding on the Company under circumstance beyond control.
X X X X X X The management may change any article of the declared prize looking to the time and circumstances prevailing at the time of the particular draw.
X X X X X X The management of the Company reserves the right to add, alter, or amend the rules and regulations as and when neces sary for the efficient and proper conduCt of the group as well as in compliance with the Government rules and regula tions which may come in force hereafter and the same shall be binding on all the members.
" It will be apparent from the Scheme that it was not meant for promoting music.
It was a pure business preposition meant to collect money and earn profits, and it was to be used as a device to evade the entertainment duty.
The re ceipts and/or the invitation cards were nothing but tickets for the show and only for one show, and were collected at the door.
In the circumstances, whatever be the description given to the receipts/cards they were liable to the enter tainment duty.
The impugned notices were, therefore, proper ly issued by the appellants.
We are, therefore, unable to accept the reasoning of the High Court that Rs. 10 collected by the respondents were the membership subscription or that the duty could not have been collected at a time on Rs. 10.
Hence, we allow the appeal and set aside the impugned decision with costs.
T.N.A. Appeal allowed.

summary:
The respondents organised two music programmes by formu lating an ostensible savings scheme under which the entry to the programme was open to persons on becoming members of the scheme by paying an admission fee of Rs.2, non refundable, and membership subscription of Rs. I0, refundable after 10 years.
The entry to the programme was strictly on the pro duction of invitation card as well as membership card.
Many persons paid the admission fee and the membership subscrip tion.
At the time of giving entry to the programme, the respondents collected the membership forms and money re ceipts from the persons concerned as a result of which they were left neither with membership form nor with the money receipts.
Although the promise was that such programmes would be repeated for 10 years yet no such performances were arranged.
The result was that members of the public were defrauded of their money and the State Government of its tax revenue.
The Entertainment Tax Collector checked the receipts of the respondent on both the dates of performances and accord ingly issued notices to them demanding the tax and the duty surcharge thereon under the Madhya Pradesh Entertain ments Duty and Advertisement Tax Act, 1936.
The respondents challenged the validity of the notices by filing a writ petition in the High Court which allowed the petition and quashed the notices by holding that the assessment of tax was arbitrary because (i) there was no allegation that the invitation cards were sold; and (ii) 1001 membership subscription of Rs. I0 was not divided by 10 since the entertainment tax could be collected only on Re. 1 per year for the next 10 years.
Hence this appeal by the State.
Allowing the appeal and setting aside the decision of the High Court.
this Court.
HELD: The Scheme was not meant for promoting music.
It was a pure business preposition meant to collect money and earn profits.
and it was to be used as a device to evade the entertainment duty.
The receipts and the invitation cards were nothing but tickets for the show and only for one show, and were collected at the door.
Therefore.
whatever be the description given to the receipts or cards they were liable to the entertainment duty.
The impugned notices were proper ly issued by the appellants.
Since the High Court completely missed the crucial point and, therefore, mis directed it self, it is not possible to accept its reasoning that Rs. 10 collected by the respondents were the membership subscrip tion or that tile duty could not have been collected at a time on Rs. 10.
[1005E F; 1003D]


judgement:
ivil Appeal No. 1561 of 1988.
From the Judgment and Order dated 4.3.1987 of the Karna taka High Court in W.P. No. 10292 of 1980.
N.D.B. Raju and N. Ganpathy for the Appellant.
Mohan Katarki, Rajeshwar Thakur, Ms. C.K. Sucharita and P.R. Ramasesh for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
This appeal by special leave is directed against the judgment of the High Court of Karnataka dated 4.3.1987 in W.P. No. 10292 of 1980 filed by the respondent No. 3, HubIi Dharwar Municipal Corporation, setting aside an award made under the Land Acquisition Act, 1897 in respect of the compensation payable to the present appellants and directing to re open the proceeding before the civil court on a reference under section 18 of the Act, for fresh disposal in accordance with law.
The appellants were the owners of the land in question.
In a proceeding under the Urban Land (Ceiling and Regulation) Act, 1976, the appellants were held to be having surplus land, which by virtue of the provisions of the Act vested in the State Government.
However, before the publication of the aforesaid declaration in the official gazette, steps for acquisition were taken for meeting the requirements of the respondent Corporation.
The appellants thus escaped the consequences of the declaration made under the Ceiling Act, and became entitled to the compensation payable in accordance with the provisions of the Land Acqui sition Act.
Steps were accordingly taken for determination of the compensation, and on an application by the appellants under section 18 of the Land Acquisition Act, reference was made to the civil court.
It is common ground that after the case was received by the 22 civil court on reference, no notice was issued to the respondent Corporation.
The court did not, however, proceed to take evidence and record its own finding on the valuation, as it was conceded on behalf of the State Government that the market value of the land could be calculated at the rate of Rs.3,800 per guntha.
The court answered the reference on the basis of the consent of the land owners and the State.
The State, however, was not satisfied with the award and filed an appeal which was dismissed on ground of being not maintainable as the impugned Judgment was held to be a compromise decree.
An attempt by the respondent Corporation to intervene also failed.
The Corporation thereafter moved the High Court with a writ petition under Article '226 of the Constitution, inter alia, challenging the validity of the civil court.
's judgment directing higher compensation to be paid.
Admittedly the land was acquired for the purpose of the respondent Corporation and the burden of payment of the compensation is on the Corporation.
In this background the High Court has held that it was mandatory for the court of reference to have caused a notice served on the respondent Corporation before proceeding to determine the compensation claim.
Since no notice was given to the respondent Corporation and it was thus deprived of an opportunity to place its case before the court, the judgment rendered in the reference case was illegal and not binding on the Corporation.
We are in agreement with this view.
Section 20 of the Land Acquisition Act as applicable to the State of Karnataka reads as follows: "20.
Service of notice.
The Court shall thereupon cause a notice, specifying the day on which the Court will proceed to determine the reference, and directing their appearance before the Court on that day, to be served on the following persons, namely: (a) the Deputy Commissioner; (b) all persons interested in the reference; and (c) if the acquisition is not made for Government, the person or authority for whom it is made.
" In view of the clear language used in clause (c) of section 20, mentioned above, there cannot be any doubt that the respond ent Corporation was entitled to be heard before the refer ence could be determined.
23 The High Court has also relied upon the decision in Himalay an Tiles and Marbles (P) Ltd. vs Francis Victor Coutinho (dead) by Lrs.
and others; , , wherein the expression "person interested" was interpreted liberally so as to include an authority like the Corporation in the present case, but in view of the further provision specifi cally mentioning in clause (c) the authority for whom the acquisition is made it is not necessary to interpret clause (b) of section 20 in the present appeal.
We accordingly confirm the direction of the High Court as contained in the impugned judgment that the Principal Civil Judge, Hubli, should re open the proceedings in the L.A. Case No. 64 of 1979 and decide the matter afresh after giving the Corporation a chance to lead its evidence on the question of valuation.
Since the matter is an old one, the respondent Corporation is hereby directed to appear in the said case within 3 weeks from today without waiting for any further notice.
The appeal is dismissed with costs.
T.N.A. Appeal dis missed.

summary:
Consequent to the acquisition of the appellant 's land for meeting the requirements of the respondent Corporation, a reference was made to the Civil Court, under section 18 of the Land Acquisition Act, 1894, when was determined without notice to the respondent Corporation.
and by allowing higher compensation to the appellants.
The State preferred an appeal against the decision of the Civil Court which was dismissed and the respondent Corporation 's intervention in the appeal was not allowed.
Thereafter the respondent Corporation filed a writ petition challenging the validity of the Civil Court 's judgment.
The High Court set aside the award of compensation and directed the Civil Court to re open the proceedings.
Dismissing the appellant 's appeal, this Court, HELD: 1.
In view of the clear language used in clause (c) of section 20 of the Land Acquisition Act, 1894 there cannot be any doubt that the respondent Corporation was entitled to be heard before the reference could be deter mined.
[22H] Himalayan Tiles and Marbles (P) Ltd. vs Francis Victor Coutinho, ; , referred to.
The land was acquired for the purpose of the respondent Corporation, and the burden of payment of compensation is on the Corporation.
Therefore, the High Court 's view that it was mandatory for the Court of reference to have caused a notice to be served on the respondent Corporation is correct.
Non service of notice deprived the 21 Corporation of an opportunity to place its case before the Court, and the judgment so rendered in the reference case was illegal and not binding on the respondent Corporation.
[22D E] 3.
The High Court 's direction to the Civil Judge to re open the proceedings and decide the matter afresh after giving the Corporation a chance to lead its evidence on the question of valuation is confirmed.


judgement:
vil Appeal No 10 (N) of 1981.
From the Judgment and Order dated 22nd March, 1978 of the Karnataka High Court in Writ Appeal No. 520 of 1975.
R.B. Datar, K.R. Nagaraja and R.S. Hegde for the Appellant.
M. Veerappa for the Respondent.
The Judgment of the Court was delivered by RAY, J.
This appeal by special leave is against the judgment and order dated 22nd March, 1978 made in Writ Appeal No. 520 of 1975 dismissing the appeal and confirming the judgment and order made in Writ Petition No. 3073 of 1974 on 18.7.1985.
The appellant who was a chartered accountant was ap pointed as a non official member of the Sales Tax Appellate Tribunal, in the State of Karnataka by an order (No. RD 80 SXE 1958) dated 16th July, 1958 for a period of two years from 17th July 1958 under subsection (2) of Section 4 of the Mysore Sales Tax Act, 1957 (Mysore Act No. 25 of 1957).
By an order No. RD 17 SXT 58 dated 12th December, 1958 issued by the Government it has been mentioned that the appellant as member of Sales Tax Tribunal shall be eligible for Tra vells Allowance under the Mysore Civil Service (Classifica tion, Control and Appeals) Rules 1958 as a government serv ant in respect of tours undertaken by him in connection with his official duty on the basis of his salary Rs. 1,000 per month.
Thereafter the appointment was continued from time to time, the last of the period during which the appointment was continued, was by a notification No. FD dated 8th November 1971 by which his period of service was extend ed for a period of two months with effect from 9.12.1971.
This notification was issued in exercise of powers conferred by clause (b) of sub rule 1 of Rule 64 of the Mysore Sales Tax Rule, 1957.
The respondent by a letter dated 8.2.1972 intimated him that he had been granted 52 days earned leave as terminal leave from 9th February, 1972.
The appellant made representations to the respondent that he was entitled to superannuation pension, and same be granted to him.
The Government turned down his request on the ground that he was not eligible for such pension.
The appellant, then, moved a writ petition No. 3073 210 of 1974 before the High Court, Karnataka stating that he was granted leave on several occasions in accordance with the Mysore Civil Service Rules and the Accountant General had treated him as a gazetted officer in the service of the State Government and as such as a Government servant he may be granted superannuation pension under the Mysore Civil Service Rules.
The learned Single Judge held that Rule 64 of the Karnataka Sales Tax Rules, 1957 was applicable to this case and under the said Rules he was not eligible to claim superannuation pension.
It was further held that even under the Mysore Civil Service Rules he would not be entitled to claim such a pension.
The writ petition was dismissed.
The learned Judge, of course, held that the appellant would be entitled to gratuity in terms of Rule 64 and so directed the Government to examine the case of the appellant for grant of gratuity under the rule and pass appropriate orders in that regard expeditiously.
The appellant feeling aggrieved preferred Writ Appeal No. 520 of 1975 which was dismissed by the High Court and the judgment pronounced in the writ petition was upheld.
It is against this judgment and order, this appeal on special leave has been filed.
The main plank of the argument of the counsel for the appellant is that the appellant as a member of the Sales Tax Tribunal was a government servant and as such like other government servants he is entitled to the grant of superan nuation pension in accordance with Mysore Civil Service Rules.
Several Rules have been referred to in support of his submission that he was retired from service after reaching the age of superannuation.
He further submitted that the appointment of appellant was not a contract appointment and so the Mysore Civil Service Rules are applicable to the appellant for payment of superannuation pension.
It is not disputed that the appellant was appointed as a nonofficial member of the Karnataka Sales Tax Appellate Tribunal under sub section (2) of Section 4 of the Mysore Sales ' Tax Act, 1957.
This is evident from the notification dated 16.7.1958 issued by the Government appointing the appellant as a member of Sales Tax Tribunal as well as from Order No. RD 17 SXT 58 dated 12th December 1958.
The ap pointment was continued from time to time and the last extension was given by Order No. FD dated 8th November, 1971 made under clause (b) of sub rule (1) of Rule 64 of the Mysore Sales Tax 211 Rules, 1957.
It is relevant to notice in this connection that Rules 63 and 64 were introduced by a notification No. FD dated 10/13th January, 1964.
Sub rule (6) of Rule 64 is quoted below: "The non official member shall not be eligible for any pension, gratuity or other remuneration.
" By further notification No. FD 614 dated 7th April, 1971, a new Sub rule (6) was substituted which was to the following effect: "(6) The non official member shall be eligible for gratuity equivalent to one month 's pay for each completed year of service including interruption or interruptions, if any, the total duration of which does not exceed 180 days but shall not be eligible for any pension or other remuneration .
" Thus the appellant was appointed as a non official member in the Karnataka Sales Tax Appellate Tribunal under sub section (2) of Section 4 of Karnataka Sales Tax Act, 1957 and the last extension of the period of his service was given by Government under clause (b) of sub rule (1) of Rule 64 of the Mysore Sales Tax Rules, 1957.
The terms and condi tions of his service will be governed by the Mysore Sales Tax Rules and not by the provisions of Mysore Civil Services Rules and it cannot be contended by the appellant that Rule 64(6) of.the said Mysore Sales Tax Rule, 1957 was not ap plicable to him.
So the appellant is not eligible for super annuation pension after his relinquishment of the post of non official member of Sales Tax Tribunal on expiry of the period of his service.
It has been further urged that Rule 64(6) of Mysore Sales Tax Rules was inserted in 1964 and sub rule (6) of Rule 64 was substituted on 7th April, 1971.
This rule not being in existence at the time the appellant was appointed as a member of the said Tribunal, the same cannot be made applicable to the appellant and thereby he could not be deprived of the benefit of superannuation pension as provid ed in Mysore Civil Service Rules.
This contention is per se without any substance in as much as before the retirement of the appellant from service due to expiry of his period of service the said provisions of sub rule (6) of rule 64 of Mysore Sales Tax Rules was substituted in place of original sub rule 6 of Rule 64 and as such this rule applies to the appellant and he is not entitled to get any superannuation pension.
The High Court has tightly held that according to Rule 64(6) the appellant could not claim pensionary benefit.
212 The appellant next submitted that he became a Government servant on being appointed as a non official member of the Sales Tax Appellate Tribunal and he was paid traveling allowance according to Mysore Civil Service Rules, 1957 and so he is entitled to pension as provided in the said Rules.
As stated hereinbefore that the appellant was appointed as a Member of the said Tribunal by the respondent State under Section 4(2) of the Sales Tax Act and though initially appointed for a period of two years in 1958, his service was extended periodically till February, 1972 under clause (b) of sub rule (1) of Rule 64 of the Mysore Sales Tax Rules, 1957 by the Government of Mysore.
Therefore, the foremost question is whether in such circumstances the Mysore Civil Service Rules apply to him.
It is apropos to refer in this connection sub rule (2) of Rule 2 of Mysore Civil Service Rules, which specially provided that the said Rules shall not apply to persons for whose appointment and other mat ters, special provisions are made by or under any law for the time being in force or in any contract in regard to the matters covered by such law or such contract.
This Rule clearly says that in cases where special provisions have been made by or under any law for the time being in force, the Mysore Service Rules will not apply.
In the instant case, Rule 64(6) of the Mysore Sales Tax Rules, 1957 clearly says that the non official member of the Sales Tax Tribunal will become ineligible for any pension, and as such provi sions relating to pension as provided in Mysore Civil Serv ice Rules, 1957 will not apply.
Furthermore, Rule 283 of the said Rues states that a superannuation pension is granted to a Government Servant who is compelled by Rule to retire at a particular age.
Rule 95 provides that the date of compulsory retirement of a Government servant is the date on which he attains the age of 55 years.
It further provides that the Government servant may be retained upto 60 years of age with the sanction of Government.
He must not be retained after the age of 60 years.
There is no rule under which a non official member is to retire on attaining a particular age.
The appellant was appointed as a member of the Tribunal for a period of two years initially and thereafter his tenure was extended periodically and he left the service as non official member of the Tribunal after he crossed the age of 61 years.
There was no specific order that the appellant was due to retire at the age of 55 years.
There is no rule for a non official member to retire at a particular age.
Moreover by order No FD dated January 28, 1970 the Govern ment sanctioned certain terms and conditions of his appoint ment.
the condition Nos. 2 and 5 are as hereunder: "(2) The terms of appointment shall be one year with effect from 9th December, 1969.
213 . . . . . (5) He is permitted to take up the audit of accounts of any person, institution, firm or body of persons without preju dice to his official duties as a Member of the Tribunal and the person, institution, firm or body of persons concerned is not and is not likely to be liable to Sales Tax, Agricul tural Income Tax or Entertainment Tax.
" The appointment of the appellant is periodical and not upto a maximum age nor it is a whole time service but a part time one and the appellant was permitted to take up audit of any person, firm, institution etc.
on certain restrictions.
A Government servant has to render whole time service.
Therefore, considering all these aspects it has been found by the High Court that the Mysore Civil Service Rules, 1957 do not apply to the appellant and as such he is not eligible for superannuation pension.
We do not find any infirmity in the judgment of the High Court which is unex ceptionable We, therefore, uphold the judgment of the High Court, dismiss the appeal without any order as to costs.
N.P.V. Appeal dismissed.

summary:
The appellant was appointed as a non official member of the State Sales Tax Appellate Tribunal for a period of two years from 17.7.1958, under sub section(2) of Section 4 of the Mysore Sales Tax Act, 1957.
The appointment was extended from time to time and continued upto 8.2.1972.
By a letter dated 8.2.1972, the respondent intimated the appellant that he had been granted 52 days Earned Leave as terminal leave from 9th February, 1972.
The appellant represented for grant of superannuation pension.
This was rejected by the Govern ment on the ground that he was not eligible for pension.
The appellant 's writ petition was dismissed by a single Judge of the High Court who held that rule 64 of the Karna taka Sales Tax Rules, 1957 was applicable to him, and that he was not eligible to claim superannuation pension.
This was upheld by the Division Bench.
In the appeal before this Court, on behalf of the appellant it was contended that as a non official member of the Tribunal, he was a government servant, and as such, like other Government servants, he was entitled to grant of pension in accordance with Mysore Civil Service Rules, that he was retired from service after reaching the age of super annuation, that his appointment was not a contract appoint ment, that he was paid traveling allowance under the Mysore Civil Service Rules, and that Rule 64(6) of Mysore Sales Tax Rules inserted in 1964, and substituted in 1971, not being in existence at the time of his appointment, could not be made applicable to him as to deprive him of the benefit of superannuation pension as provided in the Mysore Civil Service Rules.
208 Dismissing the appeal, this Court, HELD: 1.
The terms and conditions of service of the appellant who was appointed as a non official member in the Karnataka Sales Tax Appellate Tribunal under sub section (2) of Section 4 of Karnataka Sales Tax Act, 1957 and was given last extension of the period of service under clause (b) of sub rule (1) of Rule 64 of the Mysore Sales Tax Rules, 1957, will be governed by the Mysore Sales Tax Rules and not by the provisions of Mysore Civil Services Rules.
Since sub rule (6) of rule 64 of Mysore Sales Tax Rules was substitut ed in place of original subrule (6) before the appellant retired from service on expiry of his period of service, this rule applies to him, and he is not entitled to get any superannuation pension.
[211D E; G] 2.1 Sub rule (2) of Rule 2 of Mysore Civil Service Rules 1957, clearly says that in cases where special provisions have been made by or under any law for the time being in force, the Mysore Service Rules do not apply.
Furthermore, Rule 283 of the said Rules states that a superannuation pension is granted to a Government Servant who is compelled by Rule to retire at a particular age.
Rule 95 provides that the date of compulsory retirement of a Government servant is the date on which he attains the age of 55 years, and the Government servant may be retained upto 60 years of age with the sanction of Government, but not after the age of 60 years.
[212C; E F] 2.2 Rule 64(6).of the Mysore Sales Tax Rules, 1957 clearly says that the non official member of the Sales Tax Tribunal will become ineligible for any pension.
Hence,provisions relating to pension as provided in Mysore Civil Service Rules, 1957 will not apply to a non official member.
[212D E] 2.3 In the instant case, the appellant was appointed as a member of the Tribunal for a period of two years initial ly, and thereafter his tenure was extended periodically and he left the service as non official member of the Tribunal after he crossed the age of 61 years.
There was no specific order that the appellant was due to retire at the age of 55 years.
There is no rule for a non official member to retire at a particular age.
Moreover, the Government sanctioned certain terms and conditions of his appointment.
It is periodical and not upto a maximum age, nor it is a whole time service but a part time one and the appellant was permitted to take up audit of any person, firm, institution etc.
on certain restrictions.
A Government servant has to render whole time service.
Therefore, the Mysore Civil Service Rules, 1957 do not apply to the 209 appellant, and he is not eligible for superannuation pen sion.
[212F G; 213C D]