judgement:
ivil Appeal No, 3201 of 1989.
From the Judgement and Order dated 28.2.1989 of the Punjab and Haryana High Court in C.W.P. No. 7769 of 1988.
Dr. N.M. Ghatate and C.V.S. Rao for the Appellants.
P.P.Singh for the Respondent.
The Judgement of the Court was delivered by K. JAYACHANDRA REDDY, J. Whether a personal hearing is required before disposing of a petition filed under Section 117(2) of The (`Act ' for short) against an order of the Summary Security Force Court? This in short is the question involved in this appeal filed by the Union of India.
The facts that give rise to this appeal may be noted at the outset.
The sole respondent who was working as Mounted Constable in the Border Security Force (`BSF ' for short) was charged for an offence under Section 31(b) of the for extracting a sum of Rs. 14,000 from a person without proper authority.
A chargesheet was issued to the respondent.
The evidence in support of the same was recorded.
Thereafter a Summary Security Force Court as provided under the was constituted and the respondent was put on trial on 17,2.1988.
During the recording of the evidence, though the respondent was given an opportunity to cross examine the witnesses he declined to do so and according to the enquiring authorities, he pleaded guilty and prayed that a lenient view may be taken.
During the trial he was also given an opportunity to examine defence witnesses, if any but he did not do so.
It is also averred that since the respondent pleaded guilty, Summary Security Force Court passed the orders and sentenced him to rigourous imprisonment for one year in civil prison and also to be dismissed from service.
Aggrieved by the said order the respondent preferred a petition under Section 117(2) of the to the Director General, BSF who 185 after going through the petition as well as other records of the case rejected the same as devoid of any merit.
The said decision was informed to the respondent.
Aggrieved by the same, the respondent filed a petition under Articles 226 and 227 of the Constitution of India before the High Court of Punjab & Haryana.
It was urged that there was violation of principles of natural justice e since he had not been heard before disposing of the petition filed under Section 117(2) of the .
The High Court without going into the merits allowed the writ petition and directed a fresh hearing of the petition filed by the respondent in accordance with law after hearing him.
Aggrieved by the saidorder the Union of India has filed the present appeal.
Learned counsel for the appellants submitted that Section 117 (2) of the does not provide for personal hearing and that the courts, which examined the similar provisions in the Army , have held that the personal hearing need not be given particularly having regard to the nature of the act and the post held.
The learned counsel appearing for the respondent, on the other hand, submitted that the statute does not expressly exclude a personal hearing and that an employee cannot be condemned without observing the principles of natural justice.
Before we examine the decisions cited by either side, it is necessary to refer to some of the provisions of the and the Army .
The BSF is an armed force of the Union of India constituted under Item 2 of List I of Schedule 7 of the Constitution of India and is primarily connected with the defence of the country.
The preamble states that the is to provide for the constitution and regulation of an Armed Force of the Union for ensuring the security of the borders of India and for matters connected therewith.
Section 4 provides for constitution of an Armed Force of the Union called the Border Security Force for ensuring the security of the borders of India and subject to the provisions of the , the Force shall be constituted in such manner as may be prescribed and the conditions of service of the members of the Force shall be such as may be prescribed.
Chapter III deals with offences and Chapter IV with punishments that can be awarded by the Security Force Court.
Chapter VI deals with the constitution of the Security Force Courts and their powers of try the offences punishable under the .
Chapter VII contains the procedure, the witnesses can be summoned and examined.
Section 87 lays down that the Evidence , shall, subject to the provisions of the , apply to all proceedings before the Security Force Courts.
For the purpose of this appeal it may not be necessary to go into the details of this procedure.
As per Section 107 no finding or sentence of a Security 186 Force Court shall be valid except so far as it may be confirmed as provided under the .
Sections 108 and 109 deal with the authorities empowered to confirm the decision of the General Security Force Court or an ordinary Security Force Court.
Under Section 117, the aggrieved person is entitled to file a petition to the concerned authority mentioned therein against the order passed by any Security Force Court.
Section 117 reads as under: "117(1) Any person subject to this who considers himself aggrieved by any order passed by any Security Force Court may present a petition to the officer or authority empowered to confirm any finding or sentence of such Security Force Court, and the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceeding to which the order relates.
(2) Any person subject to this who considers himself aggrieved by a finding or sentence of any Security Force Court which has been confirmed, may present a petition to the Central Government, the Director General, or any prescribed officer superior in command to the one who confirmed such finding or sentence, and the Central Government, the Director General, or the prescribed officer, as the case may be, may pass such order thereon as it or he thinks fit.
" The next relevant Section is Section 118 which reads thus: "The Central Government, the Director General, or any prescribed officer may annul the proceedings of any Security Force Court on the ground that they are illegal or unjust.
" In the instant case, we are concerned with the post confirmation petition presented under Section 117(2) to the Director General, BSF.
As already mentioned the Director General rejected the same holding that it is devoid of merit without giving any personal hearing.
The petition filed by the respondent under Section 117(2) is marked as Annexure `C ' in this appeal before us.
We have gone through the same and we find that request for personal hearing as such has not been made.
With this background we shall now examine whether it is ob 187 ligatory that a personal hearing should be given and whether there has been violation of principles of natural justice? The doctrine of principles of natural justice and audi alteram partem are part of Article 14 and there are any number of decisions rendred by this Court regarding the scope of this doctrine.
We shall, however, refer to one or two important cases relied upon by the learned counsel for the appellants.
In Maneka Gandhi vs Union of India, [1978] 2 SCR 621 all the earlier important cases are referred to.
Suffice it to say that it is laid down that principles of natural justice apply to administrative orders affecting the rights of citizens.
But it is also observed that: "The audi alteram partem rule may, therefore, by the experimental test, be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitute or the urgency of the situation so demands.
But, at the same time, it must be remembered that this is a rule of vital importance in the field of administrative law and it must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands.
It is a wholesome rule designed to secure the rule of law and the Court should not be too ready to eschew it in its application to a given case.
The Court must make every effort to salvage this cardinal rule to the maximum extend permissible in a given case.
" In State of Haryana vs Ram Krishan and Others, ; the question was whether in a case of premature termination of mining leases by the Government, it was necessary to give an opportunity of hearing.
The Court held that: "Since there is no suggestion in the section to deny the right of the affected persons to be heard, the provisions have to be interpreted as implying to preserve such a right.
The Section must be interpreted to imply that the person who may be affected by such a decision should be afforded an opportunity to prove that the proposed step would not advance the interest of mines and mineral development.
Not to do so will be violative of the principles of natural justice.
Reference may be made to the observations of this Court in Baldev Singh vs State of Himachal Pradesh, , that where exercise of a power results in civil 188 consequences to citizens, unless the statute specifically rules out the application of natural justice, such rule would apply.
The learned counsel appearing for the Union of India, however, submitted that the courts have not gone to the extent of holding that in every petition or revision by way of representation filed against an order of a Tribunal under special statute should also be given an opportunity of hearing before disposal of the same.
Most of the other decisions cited deal with the question of giving an opportunity before disposal of a petition filed under Section 164(2) of the Army which is in pari materia to Section 117(2) of the .
We may usefully extract Section 164 of the Army which reads thus: "164.
Remedy against order, finding or sentence of court material Any person subject to this who considers himself aggrieved by any order passed by any court martial may present a petition to the officer or authority empowered to confirm any finding or sentence of such court martial and the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceedings to which the order relates.
(2) Any person subject to this who considers himself aggrieved by a finding or sentence of any court martial which has been confirmed, may present a petition to the Central Government,the Chief of the Army Staff or any prescribed officer superior in command to the one who confirmed such finding or sentence and the Central Government the Chief of the Army Staff or other officer, as the case may be, may pass such orders thereon as it or he thinks fit.
" In Som Datt Datta vs Union of India & Ors., ; a question came up whether it was necessary for the confirming authority or upon the Central Government to give reasons while disposing of a petition under Section 164.
It was held that: "Apart from any requirement imposed by the statute or statutory rule either expressly or by necessary implication, 189 we are unable to accept the contention of Mr. Dutta that there is any general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision." (emphasis supplied) In Union of India vs Jyoti Prakash Mitter, ; a question came up whether an order passed by President acting under article 273 of the Constitution of India is justiciable.
This Court held that the appreciation of the evidence by the President is entirely left to him but the Court will not sit in appeal over the judgement of the President.
Now coming to the question of personal hearing it was further held that: "The President had given ample opportunities at diverse stages to the respondent to make his representations.
All evidence placed before the President when he considered the question as to the age of the respondent was disclosed to him and he respondent was given an opportunity to make his representation thereon.
There is nothing in clause (3) of Article 217 which requires that the Judge whose age is in dispute, should be given a personal hearing by the President.
The President may in appropriate cases in the exercise of his discretion give to the Judge concerned an oral hearing, but he is not bound to do so.
An order made by the President which is declared final by clause (3) of Article 217 is not invalid merely because no oral hearing was given by the President to the Judge concerned".
(emphasis supplied) In Lt. Col.
K.N.S. Sidhu vs The Union of India and Others, All India Service Law Journal, a Division Bench of the Punjab & Haryana High Court has considered this very question and held that the rejection of a representation made under Section 164(2) of the Army without giving a personal hearing does, not suffer from any illegality and after referring to A.K. Gopalan vs State of Madras, ; and Union of India vs Jyoti Prakash Mitter, ; , held that: "From the observations reproduced above, it is abundantly clear that there is no hard and fast rule for the applicability of principles of natural justice and that in each case it has to be definitely ascertained if the statute governing it leaves 190 any discretion for involving their assistance.
" It was further observed that: "The applies to a class of people who are the backbone of the country.
They are governed by the codified law.
Discipline is maintained by resorting to the provisions of the codified law.
There would hardly be any justification for importing the principles of natural justice in a completely codified statute".
In Captain Harish Uppal vs Union of India and Others, ; also the question whether an opportunity to be heard is necessary before confirmation under Section 164 of the Army , was considered and it was held that: "The contention that Brig.
Bhilla should either have given a hearing to the petitioner or the Chief of Army Staff should have given a hearing to the petitioner before confirming the subsequent sentence by the court martial is not a requirement under the .
While it can be at least said that there is some semblance of reasonableness in the contention that before he ordered what in effect was an upward revision of the sentence passed on the petitioner, he should have been given a hearing, to insist that the confirming authority should give a hearing to the petitioner before it confirmed the sentence passed by the court martial, is a contention which cannot be accepted.
To accept this contention would mean that all the procedure laid down by the Code of Criminal Procedure should be adopted in respect of the court martial, a contention which cannot be accepted in the face of the very clear indications in the Constitution that the provisions which are applicable to all the civil cases are not applicable to cases of Armed Personnel.
It is not a requirement of the principles of natural justice.
Indeed when he was informed that the subsequent sentence passed on him had been sent to the Chief of the Army Staff for confirmation it was open to the petitioner to have availed himself of the remedy provided under Section 164 of presenting a petition to the confirming officer, i.e. the Chief of the Army Staff in this case.
He does not appear to have done so." (emphasis supplied) In this decision this Court has held in unambiguous terms that the confirming authority need not give a personal hearing and this ratio applies with equal force to a post confirmation petition under Section 164(2) and consequently to an application under Section 117(2) of the .
In a recent decision in Shri S.N. Mukherjee vs Union of India, JT (1990) 3 630 a Constitution bench of this Court having noted the principle that requirement to record reasons can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities, however, proceeded to hold that "There is nothing in the language of sub section (2) of Section 164 which indicates that recording of reasons for an order passed on the post confirmation petition was necessary".
In arriving at this finding, the Bench referred to the ratio laid down in Som Datt Datt 's case.
At this stage we may refer to another decision of this Court in Union of India vs cor.
J.N. Sinha and Anr., [1971] 1 SCR 791 wherein it is held: "Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights.
As observed by this Court in Kraipak and Ors.
vs Union of India, AIR 1970 SC 150, "the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice.
These rules can operate only in areas not covered by any law validly made.
In other words they do not supplant the law but supplement it.
xx xx xx Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power".
From the above discussion it emerges that in cases of special enactments like Army , all the principles of natural justice cannot be imported.
The same ration applies to a petition under Section 117(2) of the also.
We may also point out her that Chapter XIII consisting of Rules 167 to 169 of the BSF Rules deals with petitions filed under Section 117 of the .
Even in them there is nothing to indicate that a hearing has to be given before disposal of a petition.
192 As noted above, under Section 117(2) the respondent in only entitled to file a petition but the disposal of such a petition does not attract principles of natural justice.
The respondent has been tried by observing the due process of law and the verdict of the Security Force Court was confirmed and it is only a post confirmation petition that was filed under Section 117(2) of the and authority which disposed of the same is not a court any every order passed administratively cannot be subjected to the rigours of principles of natural justice.
For the aforesaid reasons, the order of the High Court is set aside and the matter is remitted back to the High Court for disposal on merits.
The appeal is accordingly allowed.
In the circumstances of the case, there will be no order as to costs.
R.P. Appeal allowed.

summary:
The respondent in the appeal, a Mounted Constable in the Border Security Force, was charged for an offence under section 31(b) of the for extracting a sum of money from a person without proper authority.
A charge sheet was issued, evidence in support of the same was recorded, and thereafter a Summary Security Force Court as provided under the Act was constituted and the respondent was put on trial.
During the recording of evidence, the respondent was given an opportunity to cross examine prosecution witnesses, but he declined, pleaded guilty and prayed for a lenient view to be taken.
The Summary Security Force Court passed an order sentencing him to rigorous imprisonment for one year civil prison and also to be dismissed from service.
Aggrieved by the aforesaid order, the respondent preferred a petition under section 117(2) of the Act to the Director General, B.S.F., who after going through the petition and the records of the case, rejected the same as devoid of any merit.
The respondent thereupon filed a petition under Articles 226 and 227 of the Constitution before the High Court urging that there was violation of the principles of natural justice since he had not been heard before disposing of his petition.
The High Court allowed the writ petition, and directed fresh hearing of the petition of the respondent, after giving him an opportunity of being heard.
The Union of India appealed to this Court against the decision of the High Court contending that section 117(2) of the Act does not provide for 183 a personal hearing.
The appeal was contested by the respondent contending that as the ` does not expressly exclude a personal hearing and that an employee cannot be condemned without observing the principles of natural justice.
On the question: whether a personal hearing is required before disposing of a petition under s.117(2) of the against an order of the Summary Security Force Court, Allowing the appeal, this Court, HELD: 1.
The doctrine of principles of natural justice and audi alteram partem are part of Article 14 of the Construction.
Although principles of natural justice apply to administrative orders affecting the rights of citizen yet it is also clear that in cases of special enactments, like Army Act, all the principles of natural justice cannot be imported.
The same ratio applies to a petition under section 117(2) of the also.
[187A B; 191G] 1.2 Chapter XIII consisting of Rules 167 to 169 of the Border Security Force Rules deals with petitions filed under s.117 of the .
Even in them there is nothing to indicate that a hearing has to be given disposal of a petition.
[191G H] Maneka Gandhi vs Union of India, [1978] 2 SCR 621; Som Datt Datta vs Union of India & Ors., [1969] 2SCR 177; Union of India vs Jyoti Prakash Mitter,[1971] 1 SCC 396; Captain Harish Uppal vs Union of Inida and Others, ; ; Shri S.N. Mukherjee vs Union of India, JT 1990 (3) 630 and Union of India vs Col. J.N. Sinha and Anr.
,[1971], 1 SCR 791, relied on.
Lt. Col.
K.N.S. Sidhu vs The Union of India and Others, All India Service Law Journal 1977 page 721, referred to.
2.1 Under section 117(2) of the , the person aggrieved is only entitled to file a petition but the disposal of such a petition does not attract principles of natural justice.
[192A] 2.2 The authority disposing of the petition under section 117(2) is not a court, and every order passed administratively cannot be subjected to the rigours of principles of natural justice.
[192B] 3.
In the instant case, the respondent had been tried by observing 184 the due process of law, and the verdict of the Summary Security Force Court was confirmed and it was only a post confirmation petition that was filed under s.117(2) of the .
The order was passed by an authority and not by a court and every order passed administratively could not be subjected to the rigours of principles of natural justice.
[192A B]


judgement:
Civil Appeal No. 1046 of 1982.
From the Order dated 20.9.1980 of the Madhya Pradesh High Court in M.P. No. 84 of 1978.
Dr. N.M. Ghatate, S.V. Deshpande and S.K. Agnihotri for the Appellants.
Aman Vachher, S.K. mehta, Mrs. Anjali Verma, D.N. Mishra (for JBD & Co.) and Ashok Srivastava for the Respondents.
The Judgment of the Court was delivered by T.K. THOMMEN, J.
This appeal by the State of Madhya 176 Pradesh arises from the Order of the Madhya Pradesh High Court in Misc.
Petition No.84 of 1978 quashing Order dated 1.10.1977 of the Additional Collector, Gwalior, whereby he initiated proceedings against the 3rd respondent, the Gwalior Dairy Limited (hereinafter called `the Company ') under section 182(2)(i) of the M.P. Land Revenue Code, 1959 (`the Code ').
Respondent Nos.
1,2 and 4 are shareholders of the third respondent.
The High Court by the impugned Order held that the Company was not a Government lessee within the meaning of section 181 [read with section 2(h)] and was, therefore, not liable to be proceeded against in terms of section 182.
The Order of the Additional Collector, Gwalior, which was impugned in the High Court, was made consequent on the failure of the Company to pay the rent agreed upon between the Government and the Company subsequent to the unconditional withdrawal by the Company of its Civil Appeal No. 299 of 1967 which was pending in this Court.
That appeal had been brought to this Court by the Company against an earlier judgement of the High Court dated 30.6.1`964 in First Appeal No. 1 of 1961 whereby the High Court, confirming the judgement of the trial court and dismissing the Company 's appeal, held that the land admeasuring 495.05 acres was held by the Company in terms of the lease granted by the State and the Company was not a `pakka ' tenant and did not enjoy the status of a " Gair Maurusi" tenant.
The Company entered into a contract of lease with the Gwalior State Government (Sanitary Engineering Department) for a period of one year in Samvat 1999.
The lease was extended for a further period of ten years in Samvat 2000.
When proceedings were initiated on 16.7.1952 to eject the Company, the Company filed Suit No. 14 of 1960 for declaration of title and perpetual injunction.
Issue No. 1(1) in that Suit was in the following words: "Whether the plaintiff in accordance with paras 5 & 6 of the Plaint was a `gair Maurusi tenant ' and now by virtue of the Revenue Administration and Ryotwari Land Revenue and Tenancy Act of Samwat 2007 has become a `Pakka Tenant '.
If so, what is its effect on the suit?" That issue was answered in the negative.
The Court held that the Company did not enjoy the status of Gair Maurusi tenant and that it had not become a `pakka ' tenant under section 54(vii) of Part II of Act 177 No. 66 of 1950 in respect of the land in question.
The Court held that the Company was "a Government lessee under section 181 of the M.P. Land Revenue Code, 1959 with the rights and liabilities enumerated in section 182".
It was also held that the Company was not an occupancy tenant under section 185 of the Code as it had not become an ordinary tenant earlier in Madhya Bharat under Act No. 66 of 1950.
This judgement, as stated earlier, was affirmed by the High Court by its judgement dated 30.6.1964 in First Appeal No. 1 of 1961.
The High Court observed that the land held by the Company under the lease was neither zamindari nor ryotwari land.
The Zamindari Abolition Act did not apply to the land as it had become vested in the State long prior to the Act.
The High Court observed: ". .the lands comprised in the Gwalior Sewage Farm were never notified to be a Ryotwari village.
The lands which have been acquired by the Gwalior State in connection with the Gwalior Sewage Farm could not, after their acquisition for a public purpose be notified to be part of a Ryotwari village. the lands were not `Pandat ' lands nor were the lands included in Ryotwari village.
Special leases granted by the erstwhile Gwalior State in respect of such lands as had been acquired for a public purpose, namely construction of a sewage system were governed not by any law for the time being in force but by the terms of lease in each case.
I have already explained above that to these lands the provisions of the Zamindari Abolition Act did not apply, since they were already held by the State when that came into force. the defendant (the State) has been successful in showing that the plaintiff (the Company) never acquired the status of a Gair Maurusi tenant in respect of the land in dispute at any time prior to the coming into force of the Act No. 66 of 1950 and that he could not, by virtue of the provisions of that Act become a Pukka tenant thereof".
It was from that judgement that the Company had brought to this Court Civil Appeal No. 299 of 1967 and that appeal was, as stated earlier, unconditionally withdrawn by the Company in 1971.
Subsequently, the State entered into an agreement with the Company to grant a fresh lease for a period of ten years from 9.2.1971 subject to the payment of enhanced rent as agreed upon between the parties.
Since the Company failed to pay the agreed rents and thus contravened the conditions of the lease, proceedings were initiated by the 178 Additional Collector by his Order dated 1.10.1977 for eviction of the Company from the land in question.
That Order was made under section 182(2)(i) of the Code.
It was that Order which was quashed by the High Court by its impugned Order dated 20.9.1980.
The High Court held that the lease in question was not covered by section 181 of the Code and that the Company could not be evicted by the summary proceeding provided for under that section.
As stated earlier, the High Court had, in the earlier proceeding held that the Company was not a `pakka ' tenant.
That judgement of the High Court became by the unconditional withdrawal of the appeal filed in this Court against it.
The Madhya Pradesh Land Revenue and Tenancy Act, Samvat 2007 (Act No 66 of 1950), which was the law in force until repealed by the M.P. Land Revenue Code, 1959, defined "pakka tenant" as follows: "section 54 (vii).
Pakka tenant means a tenant who has been or whose predecessor in interest had been lawfully recorded in respect of his holding as a `Ryot Pattedar ', `Mamuli Maurusi ' `Gair Maurusi ', and `Pukhta Maurusi ' when this Act comes into force or who may in future be duly recognised as such by a competent authority.
Explanation The term `Pukhta Maurusi ' included Istmurardar tenants, Malikana Haq holder tenants, Hakkiyat Mutafarrikat Sharah Muayyana and Sakitul Mikiyat tenants".
An `ordinary tenant ' is defined by Act No. 66 of 1950 as "a tenant other than a Pakka tenant and shall not include a sub tenant".
The position, therefore, was that, in terms of Act No. 66 of 1950, the Company was not a pakka tenant, as found by the High Court in the earlier judgement, and, therefore, it was, according to the said Act, an ordinary tenant.
The High Court had found in the earlier proceeding that the land in question was held by the Company under lease from the Government after it had been acquired by the Government for a public purpose of the State.
The question, therefore, is whether the Company was, as found by the Additional Collector, a Government lessee within the meaning of the Code.
It is to be noticed that subsequent to the withdrawal of the appeal from this Court, fresh terms were agreed upon between the Company and the Government to enable the Com 179 pany to remain in possession of the land as a lessee.
The Company is thus a person holding the land from the State Government.
This is so whether or not the Company is deemed to be holding over under the old lease or holding, upon termination of that lease, under and in terms of the fresh conditions agreed upon between the parties to enable the Company to remain in possession of the land as a lessee.
In either event, the Company has been holding the land from the State.
It is not and cannot be disputed that the original lease was obtained from the predecessor State and the Company continued to remain in possession of the land under the newly stipulated terms agreed upon between the Company and the successor State, namely, the Madhya Pradesh State.
A `Government Lessee ' is defined under the M.P. Land Revenue Code, 1959 as "a person holding land from the State Government under section 181", Section 181 of the Code reads: "181.
Government Lessees.
(1) Every person who holds land from the State Government or to whom a right to occupy land is granted by the State Government or the Collector and who is not entitled to hold land as a Bhumiswami shall be called a Government lessee in respect of such land.
(2) Every person who at the coming into force of this Code (a) hold any land in the Madhya Bharat region as an ordinary tenant as defined in the Madhya Bharat Land Revenue and Tenancy Act, Samvat2007 (66 of 1950); or (b). . . . . . . . . (c). . . . . . . . . shall be deemed to be a Government lessee in respect of such land".
These provisions show that whether or not the Company has been holding the land in terms of the original lease or under the newly stipulated terms of the lease, the Company has been holding the land 180 from the State Government and it has never been an ordinary terms as defined in the Madhya Bharat Act No. 66 of 1950.
Accordingly whether considered in terms of sub section (1) or sub section (2) of section 181, the Company has been at all material times a Government lessee in respect of the land in question.
Accordingly, section 182 of the Code is attracted.
That section reads: "182.
Rights and liabilities of Government lessee (1) A Government lessee shall, subject to any express provision in this Code, hold his land in accordance with the terms and conditions of the grant, which shall be deemed to be a grant within the meaning of the (XV of 1985).
(2) A Government lessee may be ejected from his land by order of a Revenue Officer on one or more of the following grounds, namely: (i) that he has failed to pay the rent for a period of three months from the date on which it became due; or (ii) that he has used such land for purpose other than for which it was granted; or (iii) that the term of his lease has expired or (iv) that he has contravened any of the terms and conditions of the grant: Provided that no order for ejectment of a Government lessee under this sub section shall be passed without giving him an opportunity of being heard in his defence".
It was in terms of sub section 2(i) of section 182 that the Additional Collector made his order for eviction of the Company.
The finding of the Additional Collector is a finding of fact based on evidence and is not liable to be questioned in these proceedings.
His finding shows that large amounts are due and payable by the Company as rent and that the rents have remained unpaid for a period far in excess of three months from the dates on which they became due.
In the circumstances, the Additional Collector was well justified in having recourse to the proceeding prescribed under section 182 of the 181 Code.
The finding of the High Court to the contrary was, in our view, totally unjustified and opposed to law.
In the circumstances, the impugned Order of the High Court dated 20.9.1980 in Misc.
Petition No 84 of 1978 is set aside.
The Order of the Additional Collector dated 1.10.1977 in Case No. 1 75 76A 39: 182 shall stand restored.
The appeal by the State is allowed with costs throughout.
V.P.R. Appeal allowed.

dataset_name: IN-Abs

summary:
The Company Respondent No. 3 entered into a contract of lease with the State Government for a period of one year and later it was extended for a further period of ten years.
When proceedings were initiated on 16.7.1952 to eject the Company, the Company filed suit for declaration of title and perpetual injunction.
The trial Court holding that the Company did not become a `pakka ' tenant under Section 54(vii) of Part II of Act No. 66 of 1950 in respect of the suit land and that the Company was "a Government lessee under section 181 of the M.P. Land Revenue Code, 1959, and was not an occupancy tenant under section 185 of the Code, dismissed the suit.
This judgment, was affirmed by the High Court in First appeal, observing that the land held by the Company under the lease was neither zamindari nor ryotwari land.
Against that judgment, the Company filed an appeal in this Court which was withdrawn in 1971.
Subsequently, the State entered into an agreement with the Company to grant a fresh lease for a period of ten years from 9.2.1971 subject to the payment of enhanced rent as agreed upon between the parities.
Since the Company failed to pay the agreed rents and contravened the conditions of the lease, proceedings were initiated under Section 182(2)(i) of the Code, for eviction of the Company from the land in question.
175 Eviction order was quashed by the High Court holding that the lease in question was not covered by section 181 of the Code and that the Company could not be evicted by the summary proceeding provided for under that section, against which the appeal has been filed.
Allowing the appeal, this Court, HELD: 1.
A `Government lessee ' is defined under the M.P. land Revenue Code, 1959 as "a person holding land from the State Government under section 181".
[178E] 2.
As per the provisions in section 181 of the M.P. Land Revenue Code, 1959 whether or not the company has been holding the land in terms of the original lease or under the newly stipulated terms of the lease, the Company has been holding the land from the State Government and it has never been an ordinary tenant as defined in the Madhya Bharat Act No. 66 of 1950.
Accordingly, whether considered in term of sub section (1) or sub section (2) of section 181, the Company has been at all material times a Government lessee in respect of the land in question.
[179 G 180 A] 3.
It was in terms of sub section 2(i) of section 182 that the Additional Collector made his Order for eviction of the Company.
The finding of the Additional Collector is a finding of fact based on evidence and is not liable to be questioned in these proceedings.
Large amounts are due and payable by the Company as rent.
In the circumstances, the Additional Collector was well justified in having recourse to the proceeding prescribed under section 182 of the Code.
[180 F 181 A]


judgement:
Appeal No. 125 of 1955.
Appeal from the judgment and decree dated November 20, 1951, of the former Court of Judicial Commissioner, Vindhya Pradesh, in Civil First Appeal No. 47 of 1951, arising out of the judgment and decree dated June 4, 1951, of the Court of Additional District Judge, Umaria, in Civil Original Suit No. 17/19/17 of 1950.
Sardar Bahadur, for the appellants.
Achhru Ram, B. C. Misra and P. K. Chakravarty, for the respondents.
December 9.
The Judgment of the Court was delivered by S.K. DAS, J.
This is an appeal on a certificate granted by the erstwhile Judicial Commissioner of Vindhya Pradesh, which is now part of the State of Madhya Pradesh.
On behalf of respondent No. 1, Nagar Mal, who was defendant No. 1 in the suit, a preliminary objection has been taken to the effect that the suit was not maintainable by reason of the provisions of section 4 of the Rewa State Companies Act, 1935, and the appeal filed by the plaintiffs must, therefore, be dismissed.
As this preliminary objection was not taken in any of the two courts below, learned counsel for the appellants wanted time to consider the point.
Accordingly, on October 28, 1958, we adjourned the hearing of the appeal for about a month.
The appeal was then heard on November 27, 1958.
As we are of the opinion that the preliminary objection must succeed, it is necessary to state the facts only in so far as they have a bearing on it.
When cloth control came into force in Rewa State, the cloth dealers of Budhar a town in that State, formed themselves into an Association to collect the quota of cloth to be allotted to them and sell it on profit wholesale and retail.
The, Association at Budhar consisted of 25 members who made contributions to the initial 771 capital of the association which was one lac of rupees.
No formal Articles of Association were written; nor Se was it registered.
The Association functioned through a President and a pioneer worker; they kept accounts and distributed the profits.
Respondent No. 1, Nagar Mal, was the President of the said Association from January 1946 to June 26, 1946.
Before that, Seth Badri Prasad, one of the plaintiffs appellants before us, was the President.
Nagar Mal ceased to be President after June 26, 1946, and Seth Badri Prasad again became President.
The Association worked till Febr uary 1948 ; then cloth was decontrolled and the work of the Association came to an end.
On June 25, 1949, thirteen members of the Association out of the twenty five brought a suit, and in the plaint they alleged that respondent No. 1, who was President of the Association, from January 1946 to June 1946, had given an account of income and expenditure for the months of January, February and March, 1946, but had given no accounts for the months of April, May and June, 1946.
They, therefore, prayed (a)that defendant No. 1 (Nagar Mal) be ordered to give the accounts of the Cloth Association, Budhar, from the beginning of the month of April 1946 to June 26, 1946; (b)that defendant No. 1 be ordered to pay the amount, whatever is found due to the plaintiffs on account being done, along with interest at the rate of annas 12 per cent.
per month; and (c)that interest for the period of the suit and till the realisation of the dues be allowed.
Besides Nagar Mal the other eleven businessmen, who were members of the Association, were joined as proforma defendants, some of whom later filed an application to be joined as plaintiffs.
Though the plaint did not mention any particular transaction of the Association during the period when Nagar Mal was its President, the judgments of the courts below show that the real dispute between the parties related to the sale of cloth of a consignment known as the Gwalior consignment.
It appears that in April 1946 a consignment of 666 bales of cloth had come from Gwalior 772 and an order was passed by the Cloth Control Officer that the consignment would be allotted to Nagar Mal who would give the Association an option of taking over the consignment; if the Association did not exercise the option, the consignment would be taken over by Nagar Mal.
It appears that there was some dispute as to whether the other members of the Association were willing to take over the consignment of Gwalior cloth.
We are not concerned now with the details of that dispute because we are not deciding the appeal on merits.
It is enough if we say that ultimately there was an order to the effect that only 390 bales should be allotted to the Association out of which Nagar Mal had given the Association benefit of the sales of 106 bales, and the dispute related to the share of profits made on the remaining 284 bales.
Respondent No. 1, Nagar Mal, raised various points by way of defence, his main defence being that none of the members of the Association were entitled to any share in the profits on the sales of 284 bales of Gwalior cloth.
The learned District Judge, who dealt with the suit in the first instance, passed a preliminary decree in favour of the plaintiff appellants.
The decree directed Nagar Mal to render accounts of the Cloth Association at Budhar from April 1, 1946 to June 26, 1946, and it further directed that leaving out 106 bales of Gwalior cloth which Nagar Mal gave to the Association, an account should be rendered of the rest of the 390 bales and the profits on the sale thereof shall be according to the capital shares of the members of the Association.
Nagar Mal preferred an appeal to the learned Judicial Commissioner of Vindhya Pradesh, who reversed the finding of the learned District Judge and came to the conclusion that the other members of the Association were not entitled to participate in the profits made on the sale of 284 bales of the Gwalior cloth and inasmuch as Nagar Mal had rendered accounts with regard to all other transactions, the suit for accounts must fail.
He accordingly allowed the appeal and dismissed the suit.
The preliminary point taken before us is founded on 773 the provisions of section 4 of the Rewa State Companies Act, 1935.
Sub section (1) of section 4 relates to banking business.
We are concerned with sub section
(2) of section 4 which is in these terms: " 4(2).
No company, association or partnership, consisting of more than twenty persons shall be formed for the purpose of carrying on any other, business that has for its object the acquisition of gain by the company, association or partnership, or by the individual members thereof, unless it is registered as a company under this Act, or is formed in pursuance of a Charter from the Durbar." Mr. Sardar Bahadur, who has appeared on behalf of the appellants and who took time to consider the point, has now conceded before us that the aforesaid provision was in force in the Rewa State at the relevant time when the Association was formed at Budhar and he, has further conceded that the said provision was in force till the Indian Companies Act came into force in the said area in 1950.
We must, therefore, decide the preliminary point on the basis of the provision in section 4(2) of the Rewa State Companies Act, 1935.
Now, the preliminary point taken on behalf of respondent no.1 is this.
It is contended that by reason of section 4(2) aforesaid, the Cloth Association at Budhar was not a legal Association, because it was formed for the purpose of carrying on a business which had for its object the acquisition of gain by the individual members thereof and further because it was not registered as a Company under the Rewa State Companies Act, 1935; nor was it formed in pursuance of a charter from the Durbar.
It has been contended before us on behalf of respondent no.1 that by reason of the illegality in the contract of partnership the members of the partnership have no remedy against each other for contribution or apportionment in respect of the partnership dealings and transactions.
Therefore, no suit for accounts lay at the instance of the plaintiffs appellants, who were also members of the said illegal Association.
We consider that this contention is sound and must be upheld.
On behalf of the appellants, Mr. Sardar 774 Bahadur has urged the following points in answer to the preliminary objection: firstly, he has contended that we should not allow the preliminary objection to be raised at this late stage; secondly, he has contended that even though the Association was in contravention of section 4(2) of the Rewa State Companies Act, 1935, the purpose of the Association was not illegal and a suit was maintainable for recovery of the contributions made by the appellants and also for accounts; thirdly, he has contended that on the analogy of section 69(3)(a) of the , it should be held that the appellants had a right to bring a suit for accounts of the Association which was dissolved in February 1948.
We proceed now to consider these contentions of learned counsel for the appellants.
The first contention that respondent No. 1 should not be allowed to raise an objection of the kind which he has now raised at this late stage can be disposed of very easily.
The objection taken rests on the provisions of a public statute which no court can exclude from its consideration.
The question is a pure question of law and does not require the investigation of any facts.
Admittedly, more than twenty persons formed the Association in question and it is not disputed that it was formed in contravention of section 4(2) of the Rewa State Companies Act, 1935.
A similar question arose for consideration in Surajmull Nargoremull vs Triton Insurance Company Ltd. (1).
In that case sub section
(1) of section 7 of the Indian Stamp Act (11 of 1899) was pleaded as a bar before their Lordships of the Privy Council, the section not having been pleaded earlier and having passed unnoticed in the judgments of the courts below.
At p. 128 of the report Lord Sumner said:,, The suggestion may be at once dismissed that it is too late now to raise the section as an answer to the claim.
No court can enforce as valid that which competent enactments have declared shall not be valid, nor is obedience to such an enactment a thing from which a court can be dispensed by the consent of the parties, or by a failure to plead or to argue the (1)(1924) L.R. 52 I.A. 126, 128.
775 point at the outset: Nixon vs Alibion Marine Insurance Co., (1867) L. R. ; The enactment is prohibitory.
It is not confined to affording a party a protection, of which he may avail himself or not as he pleases ".
In Sri Sri Shiba Prasad Singh vs Maharaja Srish Chandra Nandi (1), the provisions of section 72 of the Indian Contract Act were overlooked by the High Court; the section was only mentioned in passing by the Subordinate Judge and it appears that the bar of section 72 of the Indian Contract Act was not argued or only faintly argued before the Subordinate Judge or in the High Court.
In these circumstances, their Lordships of the Privy Council held that they were unable to exclude from their consideration the provisions of a public statute.
In our view, the same principle applies in the present case and section 4(2) of the Rewa State Companies Act, 1935, being prohibitory in nature cannot be excluded from consideration even though the bar of that provision has been raised at this late stage.
On his second contention learned counsel for the appellants has relied on U. Sein Po vs U. Phyu (2).
That was a case in which three members of an association formed for carrying on a rice business claimed a decree (1) declaring the respective shares of the subscribers to that association and (ii) directing that the plaintiffs be repaid their shares after reconverting the property of the association into cash and after payment of all debts and liabilities.
The association, it was found, consisted of twenty seven members; it was not registered and its formation was in contravention of sub section
(2) of section 4 of the Indian Companies Act.
The lower court granted the decree asked for and this was affirmed in appeal by the High Court.
The learned Judges referred to the decision in Sheppard vs Oxenford(3) and Butt vs Monteaux (4), and rested their decision on the following passage of " Lindley on Partnership " (the learned Judges quoted the passage at p. 145 of the 9th edition but the same passage will be found at pp.
148 149 of the 11th edition): (1) (1949) L.R. 76 I.A. 244.
(2) Ran. 540.
(3) ; ; (4) ; ; 69 E.R. 345. 776 Although, therefore, the subscribers to an illegal company have not a right to an account of the dealings and transactions of the company and of the profits made thereby, they have a right to have their subscriptions returned; and the necessary account taken; and even though the moneys subscribed have been laid out in the purchase of land and other things for the purpose of the company the subscribers are entitled to have that land and those things reconverted into money, and to have it applied as far as it will go in payment of the debts and liabilities of the concern, and then in repayment of the subscriptions.
In such cases no illegal contract is sought to be enforced; on the contrary, the continuance of what is illegal is sought to be prevented.
" We do not think that the decision aforesaid, be it correct or otherwise, is of any help to the appellants in the present case.
The appellants herein have not asked for a return or refund of their subscriptions; on the contrary, they have asked for a rendition of accounts in enforcement of an illegal contract of partnership.
The reliefs they have asked for necessarily imply a recognition by the court that an association exists of which accounts ought to be taken.
When the association is itself illegal, a court cannot assist the plaintiffs in getting accounts made so that they may have their full share of the profits made by the illegal association.
The principles which must apply in the present case are those referred to in the following passage at p. 145 of Lindley on Partnership (11th edition): " The most important consequence, however, of illegality in a contract of partnership is that the members of the partnership have no remedy against each other for contribution or apportionment in respect of the partnership dealings and transactions.
However ungracious and morally reprehensible it may be for a person who has been engaged with another in various dealings and transactions to set up their illegality as a defence to a claim by that other for an account and payment of his share of the profits made thereby, such a defence must be allowed to prevail in 777 a court of justice.
Were it not so, those who ex hypothesi have been guilty of a breach of the law, would obtain the aid of the law in enforcing demands arising out of that very breach; and not only would all laws be infringed with impunity, but, what is worse, their very infringement would become a ground for obtaining relief from those whose business it is to enforce them.
For these reasons, therefore, and not from any greater favour to one party to an illegal transaction than to his companions, if proceedings are instituted by one member of an illegal partnership against another in respect of the partnership transactions, it is competent to the defendant to resist the proceedings on the ground of illegality It is true that in order that illegality may be a defence, it must affect the contract on which the plaintiff is compelled to rely so as to make out his right to what he asks.
It by no means follows that whenever money has been obtained in breach of some law, the person in possession of such money is entitled to keep it in his pocket.
If money is paid by A to B to be applied by him for some illegal purpose, it is competent for A to require B to hand back the money if B has not already parted with it and the illegal purpose has not been carried out: see Greenberg vs Cooperstein (1).
The case before us stands on a different footing.
It is a claim by some members of an illegal association against another member on the footing that the association should be treated as legal in order to give rise to a liability to render accounts in respect of the transac tions of the association.
Such a claim is clearly unten able.
Where a plaintiff comes to court on allegations which on the face of them show that the contract of partnership on which he sues is illegal, the only course for the courts to pursue is to say that he is not entitled to any relief on the allegations made as the courts cannot adjudicate in respect of contracts which the law declares to be illegal (Senaji Kapurchand vs Pannaji Devichand(2)).
The same view, which we (1) (2)A.I.R. 98 778 think is correct, was expressed in Kumaraswami vs Chinnathambi (1).
As to the last contention of learned counsel for the appellants, based on the analogy of section 69(3)(a) of the Partnership Act, it is enough to point out that under the , an unregistered firm is not illegal; there is no direct compulsion that a partnership firm must be registered, though the disabilities consequent on non registration may be extremely inconvenient.
Moreover, the suit before us was not one for accounts of a dissolved firm, but for accounts of an illegal association which was in existence at the relevant period for which accounts were asked.
We do not think that the argument by analogy is of any help to the appellants; in our opinion, the analogy does not really apply.
For the reasons given above, we hold that the preliminary objection succeeds.
The appeal is accordingly dismissed.
As the preliminary objection was taken at a very late stage, we direct that the parties must bear their own costs of the hearing in this Court.
Appeal dismissed.
(1) I.L.R. [1951] Mad 593.

summary:
When cloth control was introduced in Rewa State, 25 cloth dealers of Budhar, including the thirteen appellants, formed themselves into an Association to collect the quota of cloth to be allotted to them and to sell it on profit.
The Association functioned through a President and a pioneer worker; they kept accounts and distributed profits.
After cloth had been decontrolled and the work of the Association had come to an end, the appellants filed a suit against the first respondent for rendition of accounts for a portion of the period that he had been President of the Association and for realisation of the amount found due with interest.
The suit was decreed by the trial Court but was, on appeal, dismissed by the judicial Commissioner.
In appeal before the Supreme Court, the first respondent raised, for the first time, a preliminary objection that the suit was not maintainable as the Association consisting of more than 20 persons was not registered as required by section 4(2) Of the Rewa State Companies Act, 1935, and that consequently the members of the Association had no remedy against each other in respect of its dealings and transactions.
The appellants objected to the raising of the new plea and contended that, nevertheless, the suit was maintainable Held, that the suit was not maintainable.
In view of section 4(2) of the Act the Association was illegal.
The reliefs claimed for rendition of accounts in enforcement of the illegal contract of partnership necessarily implied recognition by the Court that the Association existed of which accounts were to be taken.
The Court could not assist the plaintiffs in obtaining their share of the profits made by the illegal Association.
U.Sein Po vs U. Phyu, Rang.
540, not applicable.
Held further, that the new point ought to be allowed to be raised.
The question was a pure question of law and did not require the investigation of any facts.
The objection rested on the provisions of a public statute which no court could exclude from its consideration.
Surajmull Nargoremull vs Triton Insurance Company Ltd., (1924) L.R. 52 I.A. 126; Sri Sri Shiba Prasad Singh vs Maharaja Srish Chandra Nandi, (1949) L.R. 76 I.A. 244, followed.
The analogy of section 69(3)(a) of the , did not apply, an under that Act an unregistered firm was 97 770 not illegal.
Besides, the suit was not one for accounts of a dissolved firm but of an illegal Association which was in existence id at the relevant time.


judgement:
Civil Appeal No. 578 of 1991.
From the Judgment and Order dated 8.11.1990 of the Bombay High Court in W. P. No. 4497 of 1991.
Ashok Desai, N. Serwai, Dilip Udeshi, P.H. Parekh and J.P. Pathak for the Appellants.
U.R. Lalit, K.K. Singhvi and Soli J. Sorabjee, A.M. Khanwilkar, Ravinder Narain, section Ganesh, D.N. Misra and section Kachwaha, S.K. Dholakia and A.S. Bhasme for the Respondents.
K.K. Venugopal, E.C. Agrawala, Ashwini Kumar, Ms. Purnima Sethi and A.V. Pilli for the Applicant.
The Judgment of the Court was delivered by KANIA, J.
This Special Leave Petition is directed against the judgment of a Division Bench of the Bombay High Court in Writ Petition No. 4497 of 1990.
The High Court allowed the said writ petition and struck down a communication from the Bombay Municipal Corporation.
respondent No. 2 herein, informing the petitioners in the said writ petition, who are arrayed as respondents nos.
3 to 13 before us, that their application for permission to develop the property, namely, the land in question situated at Village Balkum near Thane, was rejected in view of the representations submitted to the Government by the owners of chemical factories situated in the said village, who are the appellants/petitioners herein that no building construction permission should be granted within a certain distance from the said factories.
The petitioners in the Special Leave Petition are some of the said chemical factories.
They were not joined in the writ petition as respondents and have prayed for leave to file the Special Leave Petition on the ground that the judgment adversely affects them and they are aggrieved by the same.
Permission is granted.
Leave is granted.
Counsel heard.
We find that appellants can be said to be parties aggrieved by the impugned judgment, even if they are not regarded as necessary parties 252 in the writ petition.
In the facts and circumstances of the case, we find that there is no need to set aside the impugned judgment of the Bombay High Court at the instance of the appellants.
The appellants are.
however, given liberty to file a review petition before the Bombay High Court for reviewing the impugned judgment, within a period of four weeks from today.
9 In our opinion, it is proper that the entire controversy to which the judgment relates should be determined in the light of the submissions which may be made by the appellants.
In these circumstances, we direct that the review petition, if filed, shall be entertained by the Bombay High Court and the appellants will be given a hearing as if the matter were heard afresh as far as they are concerned.
It is clarified that the hearing of the review application will not be confined to the normal grounds on which a review can be sought but the entire controversy will be regarded as open as between the appellants herein and the respondents.
The interim order made by this Court on January 8, 1991 will continue to remain in operation till the review petition is decided by the High Court.
However, it will be open for the High Court to vary or vacate the interim order on appropriate applications made to it by any of the parties or by any of the interveners here.
If the review petition is not filed within the said period of four weeks, the appeal shall stand dismissed and all interim orders passed by us shall be deemed to be vacated.
In our opinion, the review petition deserves to be disposed of with expedition and we would, therefore, request the High Court to dispose of the review petition, if filed as aforestated, within four months from today and in any event, by the 30th September, 1991.
The matter shall now be placed before learned Chief Justice of the Bombay High Court for passing appropriate directions.
The appeal is disposed of as aforestated with no order as to costs.
V.P.R. Appeal disposed of.

summary:
A writ petition was filed in the High Court challenging the communication of Respondent No. 2 Corporation, directing that no development be made in the disputed land, and no building construction permitted within a certain distance from the chemical factories in view of the representations of the owners of the factories.
The High Court allowed the writ petition and struck down the aforesaid communication.
Being aggrieved and adversely affected by the judgment, some of the owners of the chemical factories, even though they were not parties in the writ petition, filed a special leave petition.
Disposing of the Appeal, this Court, HELD: (1) Appellants can be said to be parties aggrieved by the judgment, even if they are not regarded as necessary parties in the writ petition.
[251G 252A] (2) In the facts and circumstances of the case, there is no need to set aside the judgment of the High Court at the instance of the appellants.
They are, given liberty to file a review petition before the High Court.
The review petition, if filed, shall be entertained by the High Court and the appellants given a hearing as if the matters were heard afresh as far as they are concerned.
It is clarified that the review application will not be confined to the normal grounds on which a review can be sought but 251 the entire controversy will be regarded as open as between the appellants and the respondents.
[252A D]


judgement:
Special Leave Petition No.12541 of 1990.
From the Judgement and Order dated 21.8.1990 of the Bombay High Court in W.P. No. 2677 and 4128 of 1983.
U.R. Lalit, A.M. Khanwilkar and Mrs. V.D. Khanna for the Petitioner.
M.C. Bhandare, V.N. Ganpule, Satish K. Agnihotri and Mrs. Suman B. Rastogi for the Respondent.
The Judgement of the Court was delivered by K. JAGANNATHA SHETTY, J. The shop premises belonging 154 to the respondent landlady was taken on rent by the petitioner for business purposes.
The premises are within the scope of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (`The Bombay Rent Act ').
The petitioner has been carrying on business in sweet meats and farsen.
The landlady brought action to recover possession of the premises under Section 13(1)(c) on the ground that the tenant has been convicted of using the premises.
It is not in dispute that the tenant was convicted on three occasions, first in 1968 for selling adulterated Desi butter and second, in 1972 for selling sugar garlands coloured with meantanil yellow a coaltar dye which is a prohibited colouring agent.
In the second judgement of conviction, it has been stated that the tenant had admitted two previous convictions and in one of the cases he was sentenced to six months simple imprisonment and a fine of Rs. 1,000.
All the convictions and sentences were under the Prevention of Food Adulteration Act.
The Bomaby High Court has accepted the claim of the landlady and ordered eviction under Section 13(1)(c).
The tenant seeks leave to appeal against the order of the Bomaby High Court.
Section 13(1)(c) of the Bombay Rent Act reads: "13(1) Notwithstanding anything contained in the Act, but subject to the provisions of sections 15 and 15A, a landlord shall be entitled to recover possession of any premises if the Court is satisfied, (c) that the tenant or any persons residing with the tenant has been guilty of conduct which is a nuisance or annoyance to the adjoining or neighbouring occupiers, or has been convicted of using the premises or allowing the premises to be used for immoral or illegal purposes; or that the tenant has in respect of the premises been convicted of an offence of contravention of any provision of clause (a) of sub section (1) of section 394 or of Section 394 A of the Bombay Municipal Corporation Act.
" Underlining is ours Section 13(1)(c) inter alia, provides that the landlord shall be entitled to recover possession of any premises if the Court is satisfied that the tenant or any person residing with the tenant has been guilty of conduct or has been convicted of using the premises or allowing the premises to be used for immoral or illegal purposes etc.
155 Counsel for the tenant submits that the expression "convicted of using the premises" must be limited to offences which involve ,the user of the premises and user of the premises must by itself be an offence under law.
By way of illustration, reference was made to the Immoral Traffic (Prevention)Act, 1956 and the Bomaby Prevention of Gambling Act, 1887 whereunder the use of the premises for illegal purposes has been defined as an offence and punishable.
It is only such conviction, counsel contends that it would expose the tenant to the risk of ejectment under Section 13(1)(c).
It is also argued that Section 13(1)(c) does not cover non residential premises and it covers only the residential premises.
We will consider the second question first.
The contention is based on the term used in clause(c), namely "that the tenant or any person residing with the tenant has been. " and it is said that the expression "residing with the tenant" indicates that clause (c) is applicable only to residential premises.
The essence of the submission is that business premises are not used for residence.
A Division Bench ofthe Bombay High Court in a separate judgement connected with this case has not accepted that interpretation.
It has expressed the view that clause (c), covers equally residential and non residential premises and the expression "residing with the tenant" used in clause (c) only indicates that the offence contemplated in clause(c) could be committed by the tenant or any person residing with tenant.
We concur with this view.
Section 13(1)(c) applies to any premises.
Section 5(8) defines `premises ' to mean amongst others, any building or part of a building let or given on licence separately other than a farm building.
If clause (c) is not applicable to business premises, there is no other similar provision in the Bombay Rent Act relating to the business premises.
The consequence would be that the tenant in business premises could use the premises for committing any offence or he could commit nuisance and annoyance to the adjoining or neighbouring occupiers and yet claim that he is not liable to be evicted on that grounds.
Whereas, the tenant of residential premises would not be able to commit such offence without the penalty of eviction.
Such an interpretation would render the Section vulnerable to attack under Article 14 of the Constitution.
We must avoid such construction.
Section 13(1)(c), in our opinion, covers both residential as well as non residential premises.
This takes us to the more difficult question, whether the offence leading to conviction which exposes the tenant to the risk of ejectment should involve the user of premises, or is to enough if the tenant was 156 convicted for an offence committed in the premises although the conviction is not of using the premises.
Counsel for the tenant contends thatthe Section 13(1)(c) means the former.
But the acceptance of such construction would unreasonably narrow down the Section defeating the very object of the provision, since there are very few crimes that can properly be so described and brought within its operation.
We therefore, reject the contention.
But at the same time the expression "convicted of using the premises" cannot be given too liberal construction so as to cover every case or conviction of ,the tenant.
In this regard, we have a useful guidance from the decision in section Schneiders and Sons Ltd. vs Abrahams, [1925]1 KB 301, where a similar question arose for consideration.
There the tenant was convicted of an offence under Section 33 of the Larceny Act, 1916 of receiving at the demised premises the property of the landlord well knowing the same to have been stolen.
The landlord brought an action to recover possession of the premises under Section 4 of the Rent & Mortgage Interest Restrictions Act, 1923.
Section 4 provided that no judgement for the recovery of possession of any house to which the Act applies shall be given "unless the tenant. . has been convicted of using the premises or allowing the premises to be used for an immoral or illegal purpose . ." Bankers L.J. explaining the scope of the expression "convicted of using the premises" inter alia, observed that the said expression cannot be given a strictly technical construction and that would exclude so many offences which would seem naturally to fall within the purview of the Section.
He however, emphasised that it is necessary to show that the tenant has taken advantage of his tenancy of the premises and of the opportunity they afford for committing the offence.
He also dealt with the scope of the expression "using the premises", whether it requires something more than a single act of user or a continuous, frequent or repeated use.
On this aspect, he said that "it may be that the mere fact of a crime being committed on the premises would not constitute a user of the premises by the tenant for an illegal purpose; for example, if the tenant was convicted of an assault upon some one who happened to be on the premises in the occupation of the tenant, and if that were the only evidence, I doubt whether the tenant could be said to have been convicted of "using the premises for an. illegal purpose within the meaning of Section 4".
But if the tenant used the premises as coiner 's den or as a deposit for stolen goods, a single instance of such user seems to me quite enough to satisfy the language of the statute".
Scrutton, L.J. while agreeing with the above views has added that Section 4 was not intended to cover the conviction of a crime with which the premises have nothing to do beyond merely being the scene of its commission.
Atkin, L.J. has also reiterated the above views.
157 With due regard to these principles and giving the matter the best consideration.
It seems to us that Section 13(1)(c) was not intended to be a moral code of conduct for the tenant.
For each and every offence committed at the premises, the tenant cannot be exposed to the risk of eviction.
The crime .may be forced upon the tenant at the premises by third parties.
There may be casual or incidental crimes.
There may be technical offences connected with the trade or licence to trade.
There may be crimes where use of the premises has nothing to do except being the scene of the offence.
All such cases cannot satisfy the requirements of Section 13(1)(c).
It is necessary as Bankers, L.J. has observed in the Schneiders case that the tenant must take advantage of his tenacy of the premises and of the opportunity they afford for committing the crime.
Only such crimes could fall within the scope of Section 13(1)(c).
However, there need not be continuous or repeated user of the premises for committing such crimes.
In the instant case, the tenant used the premises for carrying out illegal sale of adulterated food along with his usual business in sweet meats and farsen.
Indeed, he has used the premises deliberately and taken advantage of his tenancy for committing the offences in the course of his trade.
He cannot, therefore, legitimately contend that he is not entitled to be evicted under Section 13(1)(c).
In this view of the matter, we dismiss this petition, but we make no order as to costs.
V.P.R. Petition dismissed.

summary:
Respondent Landlady started an eviction proceeding under Section 13(1)(c) of the Bombay Rent Act against the petitioner tenant, running a shop, selling sweet meats and farsen on the tenanted premises, as he was convicted twice under the Prevention of Food Adulteration Act.
Accepting claim of the land lady the High Court ordered eviction.
Tenant contending that "convicted of using the premises" in Section 13(1)(c) be limited to offences involving the user of the premises that the provision does not cover non residential premises, filed the Special Leave Petition.
Dismissing the petition, this Court, HELD: 1.
Section 13(1)(c) covers both residential as well as non residential premises.
If clause (c) is not applicable to business premises, there is no other similar provision in the Bombay Rent Act relating to the business premises.
The consequence would be that the tenant in business premises could use the premises for committing any offence or he could commit nuisance and annoyance to the adjoining or neighbouring occupiers and yet claim that he is not liable to be evicted on that grounds.
Whereas, the tenant of residential premises would not be able to commit such offence without the penalty of eviction.
Such an interpretation would render the Section vulnerable to attack under Article 14 of the Constitution.
[155D G].
153 2.
The expression "convicted of using the premises:" cannot be given too liberal construction so as to cover every case of conviction of the tenant.[156B] 3.
Section 13(1)(c) was not intended to be a moral code of conduct for the tenant.
For each and every offence committed at the premises, the tenant cannot be exposed to the risk of eviction.
The crime may be forced upon the tenant at the premises by third parties.
There may be casual or incidental crimes.
There may be technical offences connected with the trade or licence to trade.
There may be crimes where use of the premises has nothing to do except being the scene of the offence.
All such cases cannot satisfy the requirements of Section 13(1)(c).
[157A B] 4.
The tenant must take advantage of his tenancy of the premises and of the opportunity they afford for permitting the crime.
Only such crimes could fall within the scope of Section 13(1)(c).
There need not be continuous for repeated user of the premises for committing such crimes.
[157B C] [In the instant case, the tenant used the premises for carrying out illegal sale of adulterated food along with his usual business in sweet meats and farsen.
He used the premises deliberately and taken advantage of his tenancy for committing the offences in the course of his trade.
He can be evicted under Section 13(1)(c).] [157C D] section Schneiders and Sons Ltd. vs Abrahams,