judgement:
Civil Appeal No. 1517 of 1971.
From the Judgment and Order dated 8 2 71 of the High Court of Judicature at Madras in section A. No. 887/66.
K. Ram Kumar and Mrs. J. Ramachandran for the Appellants.
R. section Ramamurthi and M. K. D. Namboodri for the Respondents.
The Judgment of the Court was delivered by TULZAPURKAR, J.
The only question that arises for consideration in this Appeal is whether the Respondents Plaintiffs ' suit was barred by Limitation under article 134 B of the Limitation Act.
One Muthammal, who was the absolute owner or the suit properties executed a deed of settlement dated 17th May 1925 (Ea. A3) whereby she endowed the suit properties to a temple in the village, the deity therein being her family deity She constituted herself as the first Trustee for her life and after that her husband and mother were to be the trustees and after their demise, respondent 's heirs were to be the trustees.
Five years later, i. e.
On 21st January 1930, she purported to cancel and revoke the trust (settlement), by getting the Deed of Cancellation registered.
Thereafter certain mortgages were executed by her in respect of the properties and later on the properties were sold by her to the father of the appellants Nos. 1 and 2.
She died on 7th October 1960.
The plaintiffs claiming 812 to be the trustees of the endowment, filed a suit on 22 8 1962, claiming possession of the properties challenging the alienations that were made in favour of the appellants ' father.
The appellants raised a plea of adverse possession and the suit being barred under Art 144 of the Limitation Act.
On merits the Trial Court came to the CONCLUSION that the deed of settlement itself was not a genuine deed, but even if it were, the suit which had been filed on 22nd August 1962 was barred under Act 144.
When the matter was taken in appeal, the Appellate Court took the view that the deed of settlement was valid and genuine and in fact it effected a legal endowment in favour of the deity, the original settlor having divested herself of the ownership completely.
In other words, the deed of cancellation was in effective in law.
The suit was regarded as one falling under article 134 of the Limitation Act and since the suit had been filed thin 12 years from the death of the settlor, Muthammal, it was held to be within time, and the plaintiffs ' suit was decreed.
The appellants appealed to the High Court and in Second Appeal, the High Court confirmed the first Appellate Courts decree.
That is how the appellants have come up in appeal to this Court.
Though initially the parties were at variance on the question as to whether it was article 144 or article 134 of the Limitation Act, 1908 that was applicable to the suit, in the High Court at the stage of the second appeal it was common ground that the suit was governed by article 134 B.
Before us also counsel for both the parties agreed that the suit would be governed by article 134 but a question raised was as to when did the period of 12 years under that article commence ? Whether it commenced from the date of the death of the settlor or her deemed resignation as a trustee ? Counsel for the appellants conceded before us that if the period for the suit is regarded as commencing from the death of Muthammal which occurred on 7 10 1960 the suit would obviously be within time but he contended that there was a resignation on the part of Muthammal as a Trustee and such resignation, if not overt and express must be deemed to have taken place by reason of the fact that she herself had executed and registered the Deed of Cancellation (exhibit B l) on 21 1 1930 and thereafter she had alienated the properties in favour of the appellants ' father and she even left the village for quite a few years.
And since the suit which was filed in the year 1962 was filed long after the expiry of 12 years from such deemed resignation it was barred.
In this behalf counsel relied upon a 813 decision of this Court in Srinivas vs Ramaswami,(1) where a view A has been taken that deemed resignation or deemed removal of the prior manager could be the commencement or the starting point of limitation.
On the other hand counsel for the respondents plaintiffs urged that there was no plea of limitation specifically raised on the basis that there was any deemed resignation on the part of Muthammal and, therefore, parties did not lead any evidence focusing heir attention on this aspect of the matter and even if there be some evidence vaguely or generally led by the parties on this aspect the same should be ignored, for in the absence of a plea being raised in that behalf such evidence has to be ignored and would be of no avail.
Alternatively counsel for the respondents plaintiffs contended that even otherwise by the mere execution of a Deed of Cancellation C and indulgence in alienations of properties by Muthammal in favour of the appellants ' father no deemed resignation should be implied for a wrongful cancellation deed and a wrongful alienation cannot affect her character as a trustee of the properties under the Deed of Settlement which was complete and under which she had divested herself of the ownership of the properties irretrievably; therefore the starting point of limitation for the suit must be held to be the date on which Muthammal died.
It can not be disputed that where a trustee wrongfully alienates some trust property, and for that matter even if the entire trust property is alienated he does not cease to be a trustee.
On parity of reasoning it stands to reason that by wrongfully executing a Deed of Cancellation the settlor cannot effectively revoke the settlement and if such settlor happens to be the trustee he shall continue to be the trustee of the settlement.
In the instant case there is a clear finding recorded by the first appellate court and the High Court that a Deed of Settlement dated 17th May 1925 was valid and complete in all respects whereunder Muthammal had divested herself of the properties which she had endowed to the temple and both the cancellation Deed as well as the alienations were ineffective and wrongful and therefore, it could not be said that by indulging in these acts she had resigned her position as a trustee of the endowment, One more aspect was relied upon by the counsel for the appellants that Muthammal had left the village for quite a few years and that there was evidence to show that the Puja of the deity in the temple way done by some other person and even some devotees had contributed to the expenses of the temple.
The fact that the Muthammal had left the village for few years is neither here not there.
And (1) [19661 3 S.C.R. 120. 814 the other two aspects, in our view, are really equivocal and would not be conclusive of the matter on the point of Muthammal having resigned in as much as the temple which was a village temple was already in existence to which only properties had been endowed by Muthammal and the temple was a public religious institution to which the endowment had been made by Muthammal and as such the fact that certain expenses of the temple were contributed by devotees or members of the public would hardly be indicative of the fact that Muthammal had resigned from the position as a trustee qua the .
endowed property in question Similar would be the position with regard to the fact that some persons were performing the Puja which would not be unnatural in the case of a public religious institution.
It is true, as has been observed by this Court in Srinivas as case (supra) that there could conceivably be a deemed resignation or a deemed removal but for that purpose some additional facts would be required to be proved.
In our view the aforesaid facts on which reliance has been placed by counsel for the appellants by themselves are insufficient to warrant the inference that there was deemed resignation on her part.
Having regard to the above discussion we are clearly of the view that in the instant case limitation will have to be regarded as having commenced on the date of the death of Muthammal and the respondents plaintiffs suit would be within time.
As a last attempt counsel for the appellants made a faint request that if the materials were insufficient an opportunity should be given to the appellants to lead evidence on that aspect of the matter and the matter should be remanded back to the Trial Court.
We do not think that at this distance of time we could consider this request favourably especially when there was no specific plea raised by the appellants in the written statement based on this aspect of the matter.
In the result we confirm the decisions of the first appellate court and the High Court.
The appeal is dismissed.
No costs.
A. P. J. Appeal dismissed.

summary/full:
Muthammal, the absolute owner of the suit properties, executed a Deed of Settlement dated May 17, 1925 (exhibit A 3) whereby she endowed the suit properties to a temple of her family deity.
She constituted herself as the first trustee for her life and after that, her husband and mother were to be the trustees and after their demise, the respondents ' heirs were to be the trustees.
Five years later i.e. On January 28, 1930, she purported to cancel and revoke the trust (settlement), by getting the Deed of Cancellation registered.
Thereafter, certain mortgages were executed by her in respect of the properties and later on the properties were sold by her to the father of appellants Nos.
I and 2.
She died on October 1, 1960.
The respondents plaintiffs, claiming to be the trustees of the endowment, filed a suit on August 29, 1962 for possession of the properties challenging the alienations that were made in favour of the appellants ' father.
The appellants contested the suit and raised the plea of adverse possession and the suit being barred under Article 144 of the Act.
The trial court held that the Deed of Settlement itself was not a genuine deed, but even if it were, the suit was barred under Article 144.
In the appeal by respondents plaintiff, the Appellate Court held that Deed of Settlement was valid and genuine and in fact it effected a legal endowment in favour of the diet, the original settlor having disvested herself of the ownership completely and consequently the Deed of Cancellation was ineffective in law.
The suit was regarded as one falling under article 134B of the Act and the suit having been filed within 12 years from the death of the settlor was held to be within time and the respondents Plaintiffs ' ' suit was decreed.
In the second appeal filed by the appellants, the High Court confirmed the first Appellate Court 's decree.
810 on appeal to this Court, the appellants, relying on the decision in Srinivas vs Ramaswami,[1966]3 S.C R 120, contended that there was a resignation on the part of the settlor as a Trustee and such resignation, if not overt and express, must be deemed to have taken place by reason of the fact that she herself had executed and registered the Deed of Cancellation (Ex.
B 1) on January 21, 1930 and thereafter she had alienated the proper ties in favour of the appellants ' father and she even left the village for quite a few years and since the suit was filed in the year 1962, long after the expiry of 12 years from such deemed resignation, it was barred.
The respondents plaintiffs, however, contended that there was no plea of limitation specifically raised on the basis that there was any deemed resignation on the part of the settlor and as the parties did not lead any evidence focussing their attention on this aspect of the matter and if there be some evidence vaguely or generally led by the parties on this aspect the same should be ignored.
alternatively, it was contended that even other wise by the mere execution of a Deed of Cancellation and indulgence in alienations of properties by the settlor in favour of the appellants ' father no deemed resignation should be implied for a wrongful Cancellation Deed, and a wrongful alienation cannot affect her character as a trustee of the properties under the Deed of Settlement which was complete and under which she had divested herself of the ownership of the properties irretrievably.
The starting point of limitation for the suit must be held to be the date on which the settler died.
Dismissing the appeal, ^ HELD: 1.
Limitation in the instant case, will have to be regarded as having commenced on the date of the death of the settlor and the respondents plaintiffs ' suit would be within time.
[814E] 2.
Where a trustee wrongfully alienates some trust property and even if the entire trust property is alienated, he does not cease to be a trustee.
By wrongfully executing a Deed of Cancellation the settlor cannot effectively revoke the settlement and if such settlor happens to be the trustee he shall continue to be the trustee of the settlement.
[813 a F] In the instant case, there is a clear finding recorded by the first Appellate Court, and the High Court that the Deed of Settlement dated May 17, 1925 was valid and complete in all respects where under the settlor had divested herself of the properties which she had endowed to the temple, and both the Cancellation Deed as well as the alienations were ineffective and wrongful and, therefore, it could not be said that by indulging in these acts she had resigned her position as a trustee of the endowment.
[813 F G] (3) The fact that the settlor had left the village for a few years is neither here nor there.
The facts regarding performing of Puja of the deity in the temple by some other persons and contribution towards the expenses of the temple by some devotees are really equivocal and would not be conclusive of the matter on the point of the settlor having resigned inasmuch as the temple which was a village temple was already in existence, 811 to which only properties had been endowed and the temple was a public A religious institution to which the endowment had been made and as such the fact that certain expenses of the temple were contributed by devotees or members of the public would hardly be indicative of the fact that the settlor had resigned from the position as a trustee qua the endowed property.
Similar, would be the position with regard to the fact that some persons were performing the Puja which would not be unnatural in the case of a public religious institution.
[813H; 814A C] There could conceivably be a deemed resignation or a deemed removal but for inferring the same some additional facts would be required to be proved.
The facts on which reliance had been placed by the appellants by themselves are insufficient to warrant the inference that there was a deemed resignation [814C D] Srinivas vs Ramaswami, [19661 3 S.C.R. 120, referred to.


judgement:
Civil Appeal Nos. 814 and 815 of 1974 From the Judgment and Order dated 13.
8. 1970 of the High Court of Allahabad in Special Appeal No. 34 of 1969 D section N. Kackar, Gopal Subramaniam and Mrs. Shobha Dikshit for the Appellant in CA.
No. 814 and respondent in CA No. 815.
U. R. Lalit and B. section Chauhan for the Respondent in CA.
No. 814 and Appellant in CA.
No. 815.
E The Judgment of the Court was delivered by VENKATARAMIAH, J.
These two appeals by special leave are filed against the judgment dated August 13, 1970 of the High Court of Allahabad in Special Appeal No. 34 of 1964 (City Board, Mussoorie v State Electricity Board & Ors.)(1) by the Uttar Pradesh Electricity Board (hereinafter referred to as the Electricity Board ') Constituted under the (hereinafter referred to as 'the Act ') and the City Board, Mussoorie, a local authority (hereinafter referred to as 'the City Board ') respectively.
The City Board as a licensee under the used to get bulk supply of electric energy from the Electricity Board from the Ganga Sarda Grid and in its turn was distributing it to the consumers within its jurisdiction.
In the year 1962, under a (1) A.l.R. 1971 Allahabad 219. 818 notification dated April 24, 1962 issued under section 46 of the Act, the tariff payable by the City Board and other licensees in the Ganga Sarda Grid was fixed by the Electricity Board.
The relevant portion of the Tariff was as follows: "1.
Applicability This rate schedule is applicable to all licensees situated in Ganga Sarda Grid area and taking supply in bulk from the Board.
Character of service A. C., 3, Phase, 50 cycles, 11,000 volts, Alternatively, the supply can be given at a voltage lower than 11 KV in which case an additional charge at 7. 1/2 per cent on the total amount of the bill will be levied.
If the consumer takes supply at a standard voltage above 11 KV, a rebate of 5% will be allowed to him by the Board on the total amount of the bill calculated at the rates prescribed for supply at KV.
Rate; (a) Demand Charges First 500 KVA of Chargeable demand during the month at the rate of. . . .
Rs. 12.75 per KVA Neat 1500 KVA of the charge demand during the month at the rate of . . . .
Rs. 10.00 per KVa All above 2000 KVA of the chargeable demand during the month at the rate of. .
Rs. 8.50 per KVA PLUS (b) Energy Charges First 170 Kwh, per KVA of Chargeable demand consumed during the month at the rate of. ". . 5P. per Kwh 819 Next 170 Kwh.
per KVA of chargeable demand consumed during the month at the rate of. . . 4P. per Kwh.
Remaining Kwh.
per KVA of the chargeable demand consumed during the month at the rate of. . . 3P. per KWh 4.
(i)Chargeable Demand The chargeable demand for the month shall be defined as the actual demand during the month or 60 per cent of the contracted demand or 75 per cent of the highest demand which occurred during the preceding 11 months, whichever is the highest.
(ii) Coal Clause The above rates shall be subject to a coal price adjustment at the rate of 0.001 per Kwh.
increase or decrease for every one P. Of variation above or below Rs. 40 per tonne of coal delivered at the bunkers in the Harduaganj Generating Station 5.
Determination of Demand: Demand measurement shall be made by suitable instruments at the point of deli very.
The demand for any month shall be defined at the highest average load measured in Kilovolt amperes during any 30 consecutive minutes period of the month.
" The tariff so fixed was enhanced by another notification dated September 30, 1967 by twenty per cent and the enhanced rate come into force on December 1, 1967.
Under section 58 of the Act, the Electricity Board or where no such Board was constituted, the State Government had the power to direct the amortisation and tariffs policies of any licensee, being a local authority, with respect to its licensed undertaking in such manner as the Electricity Board or the State Government, as the case may be, after giving the local authority a reasonable opportunity of being heard, considered expedient for the purposes of the Act.
The licensee, being a local authority, the provisions of any other law or of any rules made or directions given thereunder notwithstanding, was bound to give effect to any such directions of the Electricity Board, or the State Government, as the case may be.
The Electricity Board however, could not issue any directions under section 58 of the Act except after obtaining the prior approval of the State Government.
The City Board had H 820 moved the State Government on September 13, 1966 for permission to enhance the rates for supply of electric energy to Consumers.
No such sanction was given till March 23, 1968.
The City Board, therefore, filed a petition under Article 226 of the Constitution questioning the validity of the tariff fixed under the notification dated April 24, 1962 and the enhancement made under the notification dated September 30, 1967 It may, however, be stated here that subsequently on April 20, 1968, the City Board was permitted to raise the charges for light and fan by two paise per unit which came to 6% or 7% of the original rates and by 10% for electric energy supplied for other purposes.
The City Board challenged the notification issued on April 24, 1962 on the ground that it was not in conformity with section 46 of the Act.
It questioned the enhancement made on September 30, 1967 on the ground that it had not been permitted to enhance correspondingly the rates chargeable by it to the consumers even though in its vicinity the Electricity Board itself was supplying electric energy to consumers at a much higher rate.
The petition was contested by the Electricity Board.
The Writ Petition was heard by a Single Judge of the High Court.
He dismissed the petition.
The City Board, thereafter filed an appeal before the Division Bench of the High Court.
The Division Bench allowed the appeal in part.
Aggrieved by the judgment of the Division Bench, the City Board and the Electricity Board have filed the above appeals by special leave.
The material part of section 46 of the Act reads thus: "46.
(1) A tariff to be known as the Grid Tariff shall in accordance with any regulations made in this behalf, be fixed from time to time by the Board in respect of each area for which a scheme is in force, and tariffs fixed under this section may, if the Board thinks fit, differ for different areas.
(2) Without prejudice to the provisions of section 47, the Grid Tariff shall apply to sales of electricity by the Board to licensees where so required under any of the First, Second and Third Schedules, and shall, subject as herein 821 after provided, also be applicable to sales of electricity by the Board to licensees in other cases: Provided that if in any such other case it appears to the Board that, having regard to the extent of the supply required, the transmission expenses involved in affording the supply are higher than those allowed in fixing the Grid Tariff, the Board may make such additional charges as it considers appropriate,. . . " The first contention urged before us by the City Board is that in the absence of any regulations framed by the Electricity Board under section 79 of the Act regarding the principles governing the fixing of Grid Tariffs, it was not open to the Electricity Board to issue the impugned notifications.
This contention is based on subsection (1) of section 46 of the Act which provides that a tariff to be known as the Grid Tariff shall in accordance with any regulations made in this behalf, be fixed from time to time by the Electricity Board.
It is urged that in the absence of any regulations laying down the principles for fixing the tariff, the impugned notifications were void as they had been issued without any guidelines and were,.
therefore, arbitrary.
It is admitted that no such regulations had been made by the Electricity Board by the time the impugned notifications were issued.
The Division Bench has negatived the above plea and according to us, rightly.
It is true that section 79 (h) of the Act authorises the Electricity Board to make regulations laying down the principles governing the fixing of Grid Tariffs.
But section 46 (1) of the Act does not say that no Grid Tariff can be fixed until such regulations are made.
It only provides that the Grid Tariff shall be in accordance with any regulations, made in this behalf.
That means that if there were any regulations the Grid Tariff should be fixed in accordance with such regulations and nothing more.
We are of the view that the framing of regulations under section 79 (h) of the Act cannot be a condition precedent for fixing the Grid Tariff.
A similar contention was rejected by this Court in Mysore State Road Transport Corporation vs Gopinath Gundachar Char(l) which was a case arising under the Road Transport Corporation Act, 1950.
Under section 14 of that Act a Road Transport Corporation was entitled to appoint officers and servants as it considered necessary for the efficient performance of its sanctions.
Under section 34 (1) of the Road Transport Corporation Act, 1950 (1) [19681 1 S.C.R. 767, 822 the State Government had been empowered inter alia to issue directions to the Road Transport Corporation regarding recruitment, conditions of service and training of its employees.
Under section 45 (2) (c) of that Act, the Road Transport Corporation was empowered to make regulations regarding the conditions of appointment and service and the scales of pay of officers and servants of the Corporation other than the Chief Executive Officer, General manager and the Chief Accounts Officer.
Admittedly no regulations had been framed under section 45 (2) (c) of that Act.
It was contended that the Corporation could not appoint officers and servants referred to therein or make any provision regarding their conditions of service until such regulations were made.
This Court rejected the said plea with the following observation at page 770: "The conjoint effect.
Of sections 14 (3) (b), 34 and 45 (2) (c) is that the appointment of officers and servants and their conditions of service must conform to the directions, if any given by the State Government under section 34 and the regulations, if any, framed under section 45 (2) (c).
But until such regulations are framed or directions are given, the Corporation may appoint such officers or servants as may be necessary for the efficient performance of its duties on such terms and conditions as it thinks fit.
" We do not also find any merit in the submission that the Grid Tariff fixed in this case suffered from the vice of arbitrariness.
As observed by the Division Bench of the High Court, there is ample guidance available in the various provisions of the Act and that the rates fixed are subject to the control of the State Government.
We do not find it necessary to repeat what is stated by the Division Bench except observing that we respectfully agree with the reasons given by it for rejecting the said plea.
In Maharashtra State Electricity Board vs Kalyan Borough Municipality & Anr.
,(l) this Court has discussed the relevant provisions of the Act while dealing with section 49 thereof which show that the Act furnishes ample guidance generally regarding the determination of tariffs by an Electricity Board functioning under the Act.
There is also no merit in the submission that there cannot be a common tariff for all licensees in an area served by a Grid and that there should be a separate rate (1) ; 823 of charge for each licensee.
While it may not be objectionable to have a reasonable tariff fixed in the case of a particular licensee without offending the rule of non discrimination, fixation of a common Grid Tariff is in consonance with the spirit of the Act.
The preamble to the Act says that it had been enacted to provide for the rationalisation of the production and supply of electricity and generally for taking measures conducive to electrical development.
Looked at against this background, it is permissible for the ElectriCity Board to fix a common Grid Tariff for an area so that there may be a reasonably uniform development of the area by the supply of electric energy to all licensees or consumers in the area at a uniform rate with such reasonable variations as may be permissible in law subject to the condition that no undue preference is shown to any of them.
The Division Bench, however, held that the levy of an additional 7.1/2% as an additional charge made by the Electricity Board under the first para of clause (2) of the impugned notifications dated April 24, 1962 and September 30, ]967 was illegal and therefore liable to be quashed because according to it the additional charge of 7.1/2% could be imposed under the proviso to section 46 (2) of the Act to cover extra expenses only and not for supplying electric ENERGY at a lower voltage of 6600 volts when the Grid Tariff had fixed rates for supplying electric energy at 11000 volts.
It however, held that it was open to the Electricity Board to make an additional charge only to the extent of the actual expenditure incurred by supplying electric energy at 6600 volts.
It also quashed the Government order dated April 20, 1968 by which the City Board was permitted to increase the charges payable by the consumers in some respects and the subsequent action taken on the above basis.
The Division Bench directed the respondents to consider afresh the question of the rates at which electric energy could be supplied.
We do not propose to go into the correctness of this part of the decision of the Division Bench because we are of the view that this case can be dispensed of in a different way.
The contention relating to the validity of the levy of additional charges could not be raised by the City Board under Article 226 of the Constitution in respect of the period prior to the filing of the writ petition.
The above additional charge of 7.1/2% was levied in 1962 and the City Board did not question it before the Court till March 23, 1968 when it filed the writ petition.
It is further seen that it has not stated that it had not collected charges from the consumers of electric energy supplied by it at the 824 rates which would cover the additional 7.112%.
The learned counsel for the City Board was not able to state that the City Board had not recouped itself by collecting the charges from the consumers.
In this situation we have to presume that the City Board had not suffered any loss by the levy of 7.1/2 % by way of additional charges.
We are of the view that in cases of this nature where there is little or no possibility of refunding the excess amount collected from the ultimate consumer to him and the granting of the relief to the petitioner would result in his unjust enrichment, the Court should not ordinarily direct any refund in exercise of its discretion under Article 226 of the Constitution Moreover in this case the City Board woke up nearly 6 years after the issue of the first notification and that too only after an enhancement by 20% was made under the second notification.
In the case of the City Board, which is a local authority, there is an additional reason.
Under section 58 of the Act which is already referred to above a local authority is bound to implement the directions issued by the Electricity Board or the Government, as the case may be, with regard to the amortisation and tariffs policies.
The City Board has been given directions from time to time by the Government regarding the charges it may collect from the consumers in the light of the charges it has to pay to the Electricity Board and its own investment and expenditure on the undertaking.
The City Board cannot question the Grid Tariff only without at the same time questioning the directions pursuant to which it has been collecting charges from its consumers.
No satisfactory material is placed before the Court showing that the charges which were being collected by the City Board from the consumers were uneconomical and did not satisfy the reasonable standards which should govern the directions issued by the Electricity Board or the Government from time to time regarding the tariffs policies of the City Board.
In this situation, we feel that it would not be proper to reopen the claims of the City Board in regard to the period prior to the filing of the writ petition arising on the basis of the alleged invalidity of the notification dated April 24, 1962.
Hence we refuse to grant any relief in this regard to the City Board for the period up to the date of the writ petition, that is, till March 23, 1968.
The Grid Tariff was revised in this case on July 1, 1968.
The decision of the High Court on the above point is, however, allowed to re[remain only for the period between March 23, 1968 and July 1, 1968 without expressing any opinion on its correctness because the period is a small one and the Electricity Board does not insist upon a decision on this question in this case.
The question is left open by 825 us.
Similarly, the relief granted by the High Court with regard to A the levy of additional charge of 2 % with effect from December 1, 1967 till July 1, 1968 is not disturbed by us for the same reason without expressing any opinion on its correctness.
This judgment shall not be construed as affirming the decision of the High Court in so far as the above points are concerned.
The matter may be reconsidered by the Electricity Board as directed by the Division Bench of the High Court but with regard to the periods specified above.
The appeals are accordingly disposed of.
There shall be no order as to costs.

dataset_name: IN-Abs

summary/full:
Section 46 of the Electricity (Supply) act 1948 provides that a tariff to be known as the Grid Tariff shall, in accordance with any regulations made, be fixed from time to time by the Electricity Board.
Section 58 enables a local authority to implement the directions issued by the Electricity Board or the Government with regard to amortisation and tariffs policies.
The U.P. Electricity Board under a notification dated 24 April 1962, fixed the tariff payable by licensees who used to get bulk supply of electric energy.
The tariff so fixed was enhanced by another notification dated September 30, 1967 by 20% which came into force on December, 1,1967.
The City Board, a licensee, moved the State Government on September 13,1966 for permission to enhance the rates for supply, but no such sanction was given till March 23, 1968.
The City Board questioned the validity of the tariff fixed and its subsequent enhancement under article 226 on the grounds: (1) that the notification dated April 24, 1962 was not in conformity with section 46, and (2) that it had not been Permitted to enhance correspondingly the rates chargeable by it.
The petition was, however, dismissed.
On appeal the Division Bench partly allowed the appeal, holding: (i) that ample guidance is available in the Act, and that the rates fixed are subject to the control of the State Government: (ii) that the levy of an additional 7.112 % as an additional charge and subsequent enhancement under the two notifications was illegal; (iii) that it was open to the Electricity Board to make an additional charge to the extent of the actual expenditure incurred by supplying energy at 6600 volts, and (iv) that the Electricity Board should consider afresh rates at which electric energy could be supplied.
Both the City Board and the Electricity Board filed appeals to this Court.
It was contended on behalf of the City Board that in the absence of any regulations laying down the principles for fixing the tariff under s, 79, the 816 two Notifications issued under section 46 of the Act were void as they had been issued without any guidance and were, therefore, arbitrary.
On the question whether the grid tariff fixed suffered from vice of arbitrariness, ^ HELD: (1) While section 79(h) of the Act authorises the Electricity Board to make regulations laying down the principles governing the fixing of Grid Tariffs, section 46(1) of the Act does not say that no Grid Tariff can be fixed until such regulations are made.
It only provides that the Grid Tariffs shall be fixed in accordance with any regulations made in this behalf.
The framing of regulation under section 79(h) of the Act cannot, therefore, be a condition precedent for fixing the Grid Tariff.
In the instant case, the Grid Tariff fixed did not suffer from the vice of arbitrariness.
[821E G; 822E] Mysore State Road Transport Corporation vs Gopinath Gundachar Char ; , followed.
(2) The had been enacted to provide for the rationalisation of the production of supply of electricity and generally for taking measures conducive to electrical development.
It is, therefore, permissible for the Electricity Board to fix a common Grid Tariff for an area so that there may be a reasonably uniform development of the area by the supply of electric energy to all licensees or consumers in the area at a uniform rate with such reasonable variations as may be permissible in law subject to the condition that no undue preference is shown to any of them.
The Act also furnishes ample guidance regarding the determination of tariffs by an Electricity Board.
[823A C] Maharashtra State Electricity Board vs Kalyan Borough Municipality and Anr. ; , followed.
(3) The validity of the levy of additional charges could not be questioned by the City Board under Article 226 of the Constitution in respect of the period prior to the filing of the writ petition.
The additional charge of 7.1/2% was levied in 1962 and the City Board did not question it before the Court till March 23, 1968 when it filed the Writ Petition.
Moreover, the City Board had not stated that it had not collected charges from the consumers of electric energy supplied by it at the rates which would cover the additional 7.1/2% and had not recouped itself by collecting the charges from the consumers.
The presumption in this situation would be that the City Board had not suffered any loss by the levy of 7.1/2% by way of additional charges.
[823 G H 824 A B] In the instant case, the City Board has been given directions from time to time by the Government regarding the charges it may collect from the consumers in the light of the charges it has to pay to the Electricity Board and its own investment expenditure on the undertaking.
The City Board cannot question the Grid Tariff only without at the same time questioning the directions pursuant to which it has been collecting charges from its consumers.
No satisfactory material has been placed before the Court showing that the charges which were being collected by the City Board from the consumers were uneconomical and did not satisfy the reasonable standards which should 817 govern the directions issued by the Electricity Board or the Government from A time to time regarding the tariffs policies of the City Board.
Therefore, it would not be proper to reopen the claims of the City Board in regard to the period prior to the filing of the writ petition arising on the basis of the alleged invalidity of the notification dated April 24,1962.
The decision of the High Court on the above point is allowed to remain only for the period between March 23, 1968 and July 1, 1968.
No opinion on its correctness is expressed because the period is small one and the Electricity Board has not insisted upon a decision on this question.
The relief granted by the High Court with regard to the levy of additional charge of 20% with effect from December 1, 1967 till July 1, 1968 is also not disturbed for the same reasons [824D H; 825A] The matter may be reconsidered by the Electricity Board as directed by the High Court on the other points in regard to the above specified periods


judgement:
l Appeal No. 3381 of 1982.
From the judgment and order dated 18.10 82 of the High Court of Delhi in C.M. (M)) No. 174/82.
V.M. Tarkunde, B. Dutta and Mrs. & Mr. A. Minocha for the Appellant.
L N. Sinha and Mr. Parmod Dayal, for the Respondent.
The Judgment Or the Court was delivered by TULZAPURKAR.
The only question raised in this appeal is whether a warrant for recovery of possession can be issued ill favour of a landlord without notice to the tenant under section 21 of the Delhi Rent Control Act, 1958 (hereinafter referred to as the Act) ? A tenancy for a limited period of three years commencing from 1.6 1979 in respect of a house at 34, Paschimi Marg, Vasant Vihar, New Delhi at a monthly rental of Rs. 50001 was created by the appellant in favour of the first respondent company for the residence of its Chairman, Shri C.L. Sachdev after obtaining the requisite permission under s.21 of the Act.
It appears that the said house was constructed by the appellant for his own use and occupation but having taken a loan for its construction he was desirous of clearing the said before occupying the same and he, therefore, offered in writing the tenancy for a limited period of three years to the first respondent company, and since the offer was accepted a joint application seeking permission of the Rent Controller under s.21 for creating such limited tenancy was made by the parties on 9th May, 1979 in which it was expressly stated that three years tenancy was being created as the appellant had to clear the construction loan; the proposed lease deed containing the terms and conditions of letting was annexed thereto, clause 2 whereof expressly recited that the premises shall be used by the respondent Company only for the residential purposes of its Chair man, Shri C.L. Sachdev (second respondent).
On 10th May 1979 the parties appeared before the Rent Controller and their statements were recorded; the second respondent stated on oath that the premises were being taken by the respondent company for the residence of its Chairman (i.e. himself) on a monthly rental of Rs. 5000/ for 903 three years with effect from 1.6.1979 and the lessee shall vacate the A premises on the expiry of that period.
By his order passed on that very day the Rent Controller, on being satisfied that the requirements of s.21 had been fulfilled, 1, granted permission for the creation of the tenancy for the said period which Was to expire on 31st May 1982.
The appellant was desirous of getting possession of the house at the expiry of the period but before applying for possession under s.21 of the Act, by two registered letters one dated 1st March 1982 and the other dated 5th May 1982 h called upon the respondents to hand over vacant possession of the leased premises on the due date as the period permitted by the Rent Controller was coming to an end and also because h required the, pretenses for himself.
There was no reply to any of this letters nor was possession handed over and, therefore, the appellant filed application under s.21 for recovery of possession before the Rent Controller on 1st July 1982; the application was directed to be registered on that day and the appellant was directed to file a certified copy of the plan on 16.7.1982; the appellant, however, filed the certified copy of the plan on the 6th July 1982; the Rent Controller, therefore cancelled the date 16th July 1982 fixed for filing the plan, took on record certified copy of the plan and issued warrant of possession in favour of the appellant.
On 9.7.1982 the appellant took possession of the house through the bailiff and started residing therein with his family members.
On 14th July 1982 the respondents filed a writ petition (C.M. No. (Main) 174 of 1982) in the Delhi High Court under article 227 of the Constitution seeking to quash the warrant of possession issued by the Rent Controller on 6.7.1982 and the further proceedings taken in pursuance thereof on two grounds: (3) that the initial order dated 10th May 1979 granting permission to create the limited tenancy was vitiated by fraud practised by the appellant inasmuch as he had suppressed the fact that an earlier application for such permission his been declined on the ground that premises had been let out for commercial cam residential purposes and therefore, there Was no executable order pursuant to which any warrant for possession could be issued under s.21 of the Act and (b) that the issuance of a warrant for recovery of possession on 6th July 1982 without notice to the tenant was erroneous in have and in violation of principles of natural justice and such non issuance of notice on the part of the Rent Controller had deprived the tenant of an opportunity to prove his case of fraud.
By this reply the appellant denied all the allegations made in the Writ Peti 904 tion and particularly denied that the premises were let out for commercial cum residential purposes or that permission on the earlier occasion had been declined on that ground or that any fraud was practised by him as alleged at the time when the order granting permission was passed on 10th May 1979; it was asserted that the earlier application for permission was not refused but was got with drawn for technical defect.
The appellant also disputed that anoints to the tenant Was contemplated by s.21 of the Act before issuing the warrant for recovery of possession thereunder; he also pleaded that on the facts of the case the respondents had ample opportunity to approach the Rent Controller to prove their case of alleged fraud inasmuch as the appellant had issued two registered notices to the respondents informing them that he was desirous of recovering possession at the expiry of the lease period and as such though there was no requirement of a notice in law, the principles of natural justice could be said to have been substantially observed.
By its judgment and order dated 18th October 1982 the High Court allowed the writ petition, quashed the warrant of possession issued by the Rent Controller and sent the matter back to him for hearing and adjudicating upon the objections of the tenant to the issuance of such warrant of possession and in the meanwhile it also directed that possession be restored to the tenant.
In doing so the High Court took the view that no warrant for recovery of possession under s.21 of the Act could be issued in favour of the landlord without issuance of a notice to the tenant.
It is this view of the High Court that is being challenged before us by the appellant in this appeal.
In support of the appeal the principal contention of the counsel for the appellant has been that neither s.21 of the Act nor any Rules framed thereunder require or contemplate the service of a notice on the tenant before issuing the warrant of possession for the purpose of putting the landlord in vacant possession of the leased premises at the expiry of the limited period for which the tenancy has been permitted to be created under the Rent Controller 's order.
Counsel submitted that s.21 postulates summary eviction of the tenant by a process which is really in the nature of executing the earlier order creating a tenancy for a limited period as no fresh eviction order is contemplated and that insistence upon a prior notice to the tenant before issuing the warrant of possession followed by an elaborate inquiry would defeat the very object or purposes for which s.21 has been enacted and incorporated in the Act which, 905 as explained by this Court in S.B. Noronah vs Prem Kumari Khanna,(l) is to afford an assurance to the landlord that he will get back possession forthwith at the expiry of the fixed period of tenancy but for which a landlord would never let out his premises and would continue to keep them vacant even though he may not require the premises for a fixed period.
Counsel for the appellant pointed out that even under the Civil Procedure Code no prior notice is required to be served on a judgment debtor when execution processes say for attachment and sale of his properties or even for dispossessing him are taken within two years of the decree.
Counsel for the appellant, therefore, urged that the High Court was ; error in taking the view that a warrant of possession could not be issued in favour of the landlord without service of a prior notice upon the tenant under C s.21, and according to him the decision in Noronaths case (supra on which High Court has relied in this behalf is not on this point.
Counsel for the appellant further urged that even in a case where fraud is alleged to have been practised by the landlord in obtaining the Rent Controller 's sanction for creating the limited tenancy the section does not cast any duty or obligation upon the Rent Controller to invite a plea of fraud from the tenant by issuing notice to him after the landlord has applied for recovery of possession under that section Further the counsel pointed out that in the facts of the instant case the fraud, if at all there was any, was known to the tenant right from the time the limited tenancy was created under the Rent Controller 's order and the respondents could have approach the Rent Controller to have the issue decided at any time during the three years period and in any case at least immediately after the receipt of two registered letters from the appellant 's which were issue months ahead of the appellant 's application for recovery of possession under s.21.
Counsel, therefore, urged both in law as well as on the facts of the present case the service of a notice by the Rent Controller upon the tenant before issuing warrant of possession was uncalled for and not required and the High Court was in error in taking the view it did; in any case the High Court was wrong in directing the restoration of possession back to the respondents when the matter was remanded by it to the Rent Controller for hearing and adjudicating upon the tenant 's objection and the appellant 's possession need not have been disturbed pending such adjudication.
(1) [1980] I S.C.R. 281.
906 On the other hand counsel for the respondents strongly sup ported the view taken by the High Court and in that behalf relied upon this Court`s decision in the Noronah 's case (supra) which has the view that even at the execution stage it is open to the tenant to put forward a case of fraud in the matter of obtain g Rent Controller 's permission at the initial stag, for creating a limited tenancy and the Rent controller is bound to hold an inquiry when such a plea of fraud is put forward by the tenant and according to counsel such inquiry into the, plea of fraud would not be possible unless notice is served Upon the tenant before issuing the warrant of possession .
In order to decide the question raised in the appeal it will be necessary to set out section 21 of the Act.
The section ruts thus: "21.
Recovery of possession in case of tenancies for limited period where a landlord does not require the whole or any part of premises for a particular period, and the landlord, after obtaining the permission of the Controller in the prescribed in the manner , let the whole of the premises or part thereof as a residence for such period as may be agreed to in writing between the landlord and the tenant and the tenant does not, on the expiry of the said period , vacate such premises then, notwithstanding anything contained in section 14 or any other law the Controller may , on an application mad to him in this behalf by the landlord within such time as may be prescribed, place the landlord in vacant possession of the premise or part thereof by evicting the tenant and every other person who may be in occupation of such premises .
An analysis of the provision will show that in regard to tenancies for limited period mentioned there in only two orders are contemplated by the section: (i) an order by the Rent Controller sanctioning or permitting the creation of 3 tenancy for a particular fixed period only, and (ii) an order by the Rent Controller putting the landlord in vacant possession of the leased premises by evicting the tenant and every other occupier thereof at the expiry of that period.
It is also clear that before passing the first order the Rent Controller is required to satisfy himself that the two conditions mentioned in the section are genuinely satisfied in every 907 case, namely, (a) that the landlord does not require the premises A 'for a particular period ' only and (b) that the letting itself is for residential purposes and no other.
The landlord 's non requirement of the premises for a particular period may arise out of various circumstances; for instance, being an Officer he may be going on some other assignment for a particular period or being in occupation of official quarters he may have to vacate the same on his retirement or having borrowed a loan for the construction he may desire to clear it of before occupying the premises for his own use, etc.
It cannot be disputed that both the condition must be truly fulfilled and not by Way of any make belief before the Rent Controller grants his permission for the creation of such limited toenails but once such laminated tenancy is properly created the second order of putting the landlord in vacant possession of the leased premises by evicting the tenant at the expiry of the fixed period to be passed as matter of course because the tenant, in view of the non obstinate clause contained in the section, has no right or protection whatsoever under law to continue the possession nor has he any defense to eviction and the section does not Contemplate the passing of any order of eviction against the tenant before issuing the warrant of possession in favour of the landlord.
It is the clear that the second order contemplated by the section is in the nature Or a process in execution whereunder the landlord has to put in possession of the leased premises by evicting the tenant and every occupant thereof, and no notice to the tenant is contemplated before issuing the warrant of possession for putting the landlord in possession As far as the Delhi Rent Control Rules 1956 framed by the Central Government under section 56 of the Act are concerned there is only one rule being Rule 5 which merely provides for period of limitation by saying that every application for recovery of possession under sec.
21 shall be made by the landlord within six months from the date of the expiry of the period of tenancy and there is no rule requiring a notice being served upon the tenant before the issuance Or warrant of possession to evict him.
Counsel for the respondents relied upon sec.
37 of the Act to canvas the contention the service of a prior notice Upon the tenant before he is evicted would be necessary but that deals with the practice and procedure required to be followed by the Rent Controller in proceedings before him and it mainly provides that subject to any rules 908 That may be made under the Act the Controller shall, while holding an inquiry in any proceeding before him, follow as may b the practice and procedure of a court of small causes, including the recording of evidence.
In particular counsel relied upon sub sec.
(1) of sec.
37 which provides that "no order which prejudicially affects any person shall be made by the Controller under this Act without giving him a reasonable opportunity of showing cause against the order proposed to be made and until his objections, if any, and ,any evidence he may produce in support of the same have been considered by the Controller.
" In our view all that sub sec.
(1) does is to incorporate a rule of natural justice, namely, that an order prejudicially affecting a person shall not be made without hearing him and considering his objections if any to the proposed order.
But an order can be said to affect a person prejudicially only if any right of his would b affected adversely and as stated earlier in view of the non obstinate clause contained in sec.
21 the tenant on the expiry of the limited period his no right or protection what so ever under any law to continue in possession and as such the issuance of a warrant of possession directing him to vacate the premises in his occupation cannot be regarded as one which prejudicially affects him.
Section 37 (1) therefore, cannot be construed as requiring service of a prior notice upon the tenant before issuance of a warrant of possession against him.
In other words neither sec.
21 nor sec.
37 nor the Rules framed under the Act require service of any prior notice upon the tenant before he is evicted and the order directing issuance of warrant of possession under sec.
21, without prior notice to the tenant, for the purpose of putting the landlord in possession of the leased premises at the expiry of the limited tenancy cannot be regarded as illegal, invalid or unwarranted.
The question at issue could also be considered by having regard to the object or purpose with which section 21 has been enacted and incorporated in the Act.
It cannot be disputed that sec.
21 carves out tenancies of particular category for special treatment and the raison d 'etre of the provision has been explained by this Court in Noronah 's case (supra) in these words: "Parliament was presumably keen on maximising accommodation available for letting, realising the scarcity crises.
One source of such spare accommodation which is usually shy is potentially vacant building or a part 909 thereof which the landlord is able to let out for a strictly limited period provided he has some credible assurance that when he needs he will get it back.
If an officer is going on other assignment for a particular period, or the owner has official quarters so that he can let out if he is confident that on his retirement he will be able to re occupy, such accommodation may add to the total lease worthy houses.
The problem is felt most for residential uses.
But no one will part with possession because the lessee will be come a statutory tenant and, even if bonafide requirement is made out the litigative tiers are so many and the law 's delays so tantalising that no realist in his sense will trust the sweet promises of a tenant that h will return the building after the stipulated period.
So the law has to make itself credit worthy.
The long distance between institutions of recovery proceedings and actual dispossession runs often into a decade or more a factor of despair which can be obviated only by a special procedure.
Section 21 is the answer. ' 'The law seeks to persuade the owner of a premise available for letting for a particular or limited period by giving him the special assurance that at the expiry of that period the appointed agency will place the landlord in vacant possession." (Emphasis supplier).
It is thus clear that the object of incorporated section 21 in the Act is to provide a special procedure that will ensure to the landlord vacant possession of the leased premises forthwith at the expiry of the fixed period of tenancy but for which he would be shy to let out his premises and would continue to keep them vacant even though he may not require the premises for a fixed period.
Moreover the assurance of getting vacant possession forthwith is further strengthened by the provision that under the warrant of possession not merely the tenant but every person who may be in occupation is also to be evicted.
If such is the avowed object of prescribing the special procedure then service of a prior notice on the tenant upon receipt of the landlord 's application for recovery of possession and inviting his objections followed by in elaborate enquiry in which evidence may have to be recorded will really frustrate that object.
In our view precisely for this reason the scheme of sec.
21 and the connected relevant provisions do not require service of a prior notice on the tenant before issuing the warrant of possession against 910 him for putting the landlord in possession of the leased premises, for, the law has to make itself credit worthy.
Strong reliance was placed by counsel for the respondents on the decision of this Court in Noronah '.s case (supra) where according to counsel a view has been taken that even at the second stage when the landlord applies for recovery of possession under sec 21, the Rent Controller must satisfy himself by such inquiry he may make about the compulsive requirements of that provision that is to say, whether the twin conditions requisite for granting, the permission for the creation Or limited tenancy had been really fulfilled or not and counsel argued that no such inquiry would be possible unless on receipt of landlord s application.
for recovery of possession a notice served is upon the tenant which would enable the tenant to put forth a plea that at initial stage a mindless order granting, permission ion for the creation of limited tenancy had been made with it the will condition being really satisfied or that the said initial order granting permission was the result of either fraud on the part of ' the landlord or collusion between the parties Counsel urged that a more ritulistic enforcement the condition of ' the permission udders sec.
21 or a mechanical grant of permission thereunder would amount to subverting the whole effect of sec.
21 and it is well settled fraud and collusion (especially collusion between two to unequal the strong and the weak) will vitiate completely the permission so granted and render it non est. 'therefore, it would be the duty of the Rent Controller to hear and adjudicate upon such pleas of the tenant before issuing warrant of possession in favour of the landlord.
At the outset we would like to observe that in Noronah 's case the question whether a prior notice is required to be served upon the tenant before issuance of warrant of possession in favour of the landlord under sec.
21, did not arise for consideration.
It was a case where upon receipt of landlord`s application for reconvey of possession under the section the tenant raised pleas that the premises had been let out for non residential purposes and that the sanction or permission granted for the creation of the limited tenancy was vitiated by fraud and collusion and the question that arose for consideration was whether at that stage the Rent Controller should consider those peas even when reside at the stage.
In other words all that the said case decided in that if such please by the tenant event at the exception 911 stage (i.e. at the stage of passing the second order) the Rent Controller should consider and adjudicate upon such pleas but the decision is no authority for the proposition that upon receipt of landlord 's application for recovery of possession the Rent Controller must issue a notice to the tenant inviting from him the pleas of fraud, collusion etc.
and hold an inquiry into such pleas before issuing the warrant of possession in favour of the landlord; for there cannot be a presumption that in very case there was a m re ritualistic observance of the procedure contemplated while passing the initial order granting pertain or that the Controls had passed a mindless order or that the order granting permission was the result of either fraud on the part of the landlord or collusion between the strong and the weak.
In fact clean in Noronah case this Court has observed that there will be a presumption in favour of the sanction or permission being regular and if that be so, we fail to appreciate as to why the Rent Controller should invite such pleas of fraud, collusion etc.
at the instance of the tenant by being required to serve a notice upon, him before issuing the warrant of possession in favour of the landlord especially when the scheme of sec.
21 and the connected relevant provisions do not require it.
what then is the remedy available to the tenant in a case where there was in fact a mere ritualistic observance of the procedure while granting permission for the creation of a l limited tenancy or where such permission has procured by fraud practised by the landlord or was a result of collusion between n the strong and the weak ? Must the tenant in scull cases be unceremoniously evicted without his plea being inquired into ? The answer is obviously in the negative.
At the same time must he be permitted to protract the delivery of possess on of the leased premises to the I Landlord on a false plea of fraud or collusion or that there was a mechanical grant of permission and thus defeat the very subject of the special procedure provided for the benefit of the landlord in sec.
21 ? The answer must again be in the negative.
In our view these two competing claims must be harmonized and the solution lies not in insisting upon service of a prior notice on the tenant b fore the issuance of the warrant of possession to evict him but by insisting upon his approach the leant Controller during the currency of the limited tenancy for adjudication of his pleas no sooner he discovers facts and circumstances that tend to vitiate ab initio the initial grant of permission.
Either it is a mechanical grantor permission or it is procured by fraud practised by the landlord or it is the result 912 of collusion between two unequals but in each case there is no reason for the tenant to wait till the landlord makes his application for recovery of possession after the expiry of the fixed period under sec.
21 but there is every reason why the tenant should make an i mediate approach to the Rent Controller to have his pleas adjudicated by him as soon as facts and circumstances giving rise to such pleas come to his knowledge or are discovered by him with due diligence.
The special procedure provided for the benefit of the landlord in sec.
21 warrants such immediate approach on the part of the tenant.
Of course if the tenant aliunde comes to know about landlord 's application for recovery of possession and puts forth his plea of fraud or collusion etc.
at that stave the Rent Controller would inquire into such plea but he may run the risk of getting it rejected as an afterthought.
There is however no need to imply any obligation on the part of the Rent Controller r to serve a notice on the tenant inviting him to file his objections before issuing the warrant of possession in favour of the landlord.
Having regard to the above discussion we are clearly of the view that the High Court Was in error in taking the view that no warrant for recovery of possession under sec.
21 could be issued without serving a notice on the tenant.
We hold that the Rent Controller 's order directing the issuance of warrant of possession in favour of the appellant landlord herein and the further proceedings of putting him in position of the suit premises in pursuance thereof were valid and proper and ought not to have been quashed by the High Court.
However, since the High Court has remanded the matter back to the Rent Controller for adjudication upon pleas of the respondent tenant we not propose to interfere with that e the order and the adjudication of the objections raised by the respondent talent may be proceeded with and decided in accordance with the law but on the facts of the instant case there was no justification for the direction issued by the High Court that pending such adjudication possession of the premises be restored to the respondent tenant.
Admittedly in the instant case long before he applied for recovery of possession under sec.
21 of the Act the appellant had sent two registered notices to the registered notices calling upon it to vacate the, premises as the period of the limited tenancy was about to expire and also because he wanted the premises for his own use and occupation and nothing was done by the respondents and it was only after the warrant of possession had been executed and the landlord got possession of the premises 913 in question that the respondent company approached the High A Court by means of a Writ Petition challenging the issuance of warrant of possession on the ground that no prior notice had been served upon him and that the first order granting permission for limited tenancy was the result of fraud practised by the landlord.
Obviously the respondent company has thought fit to raise the plea of fraud belatedly.
We, would therefore, quash that part of the High Cortege order which directs restoration of possession of the suit premises to the respondent company during the i of the proceedings before the, Rent Controller and direct that the appellant 's possession of the suit premises which he has secured in pursuance, of the warrant of possession shall not be disturbed till the respondent company objections and or pleas are finally decided.
Since the appeal substantially succeeds the respondents are directed to ply the, cost of the appeal to appellants.
S.R. Appeal allowed.

summary/full:
A tenancy for a limited period of three years commencing from 1.6.79 in respect of a house at 34, Paschimi Marg, Vasant Vihar, New Delhi at a monthly rental of Rs. 5,000 was created by the appellant in favour of the first respondent company for the residence of its Chairman, Shri C.L. Sachdev after obtaining the requisite permission under section 21 of the Delhi Rent Control Act.
In the application filed before the Rent Controller and in the proposed lease deed it was specifically stated that the appellant landlord in order to clear the loan taken by him for the construction of the premises was creating the limited tenancy for a period of three years.
The appellant was desirous of getting possession of the house at the expiry of the period i.e 31st May, 1982 but before applying for possession under section 21 of the Act, by two registered letter one dated 1st March, 1981 and the other dated 5th May, 1982 he called upon the respondents to hand over vacant possession of the leased premises on the due date.
The respondent neither replied these letters nor did handover possession.
Therefore, the appellant filed an application under section 21 for recovery of possession before the Rent Controller On 1st July, 1982.
On 9.7.82 the appellant took possession of the house through the bailiff and started residing therein with his family members.
On 14th July 1982 the respondents filed a writ petition (CM No. (Main) 174 of 1982) in the Delhi High Court under Article 227 of the Constitution seeking to quash the warrant of possession issued by the Rent Controller on 6.7.1982 and further proceedings taken in pursuance thereof on two grounds: (a) that the initial order dated 10th May, 1979 granting permission to create the limited tenancy was vitiated by fraud practiced by the appellant in as much as he had suppressed the fact that an earlier application for such permission has been declined on the ground that premises had been let out for commercial cum residential purposes and therefore, there was no executable order pursuant to which and warrant for possession could be issued under section 21 of the Act and (b) that the issuance of a warrant for recovery of possession on 6th July 1982 without notice to the tenant was erroneous law and in violation of the principle of natural justice and such nonissuance of notice on the part of the Rent Controller had deprived the tenant of an opportunity to prove his case of fraud.
By his reply the appellant denied all the allegation made in the Writ Petition.
900 The High Court took the view that no warrant for recovery of possession under section 21 of the Act would be issued in favour of the landlord without issuance of a notice to the tenant, and by its judgment and order dated 18th October, 1982 allowed the writ petition, quashed the warrant of possession Issued by the Rent Controller and sent the matter back to him for hearing and adjudicating upon the objections of the tenant to the issuance of such warrant of possession and in the meanwhile it also is directed that possession be restored to the tenant.
Hence the appeal by special leave Allowing the appeal, the Court, ^ HELD: 1.1.
Neither section 21 and 37 of the Delhi Rent Control Act 1958 nor the Rules framed under t`he Act require service of any prior notice upon the tenant before he is evicted and in the instant case, the order directing issuance of warrant of possession under section 21 without prior notice to the tenant, for the purpose of putting the landlord in possession of the leased premises at the expiry of the limited tenancy cannot be regarded as illegal, invalid or unwarranted.
[908 E F] 1.2.
An analysis of section 21 of the Delhi Rent Control Act will show that in regard to tenancies for limited period mentioned therein only two orders arc contemplated; (i) an order by the Rent Controller sand or permitting the creation of a tenancy for a particular fixed period only, and (ii) an order by the Rent Controller putting the landlord in vacant possession of the leased premises by evicting the tenant and every other occupier thereof at the expiry of that period.
Before passing the first order the Rent Controller is required to satisfy himself that the two conditions mentioned in the section are genuinely satisfied in every case, namely, (a) that the landlord does not require the premises for a particular period only and (h) that the letting itself is for residential purposes and no other.
The landlord s non requirement OF the premises for a particular period may arise out of various circumstances for instance, being an officer he may be going on some other assignment for a particular period or being in occupation of official quarters he may have to vacate the same on his retirement or having borrowed a loan for the same on his retirement or having borrowed a loan for the construction he may issuer to clear it of before occupying the premises for this own use, etc.
Both the conditions must be truly fulfilled and not by way of any make belief before the Rent Controller grants his permission for the creation of such limited tenancy but once such limited tenancy is properly created the second order of putting the landlord in vacant possession of the leased premises by evicting the tenant at the expiry of the fixed period has to be passed as a matter of course because the tonality, in view of the non obstinate clause contained in section 21, has no right or protection whatsoever under law to continue in possession nor has he any defense to eviction.
The second order contemplated by section 21 is in the nature OF a process in execution where under landlord has to be put in possession of the leased premises by evicting the tenant and every other occupant thereof, and no notice to the tenant is contemplated before issuing ll the warrant of possession for putting the landlord in possession.
[906 G H; 907 A E] 901 1.3.
Section 21 carves out tenancies of particular category for A special treatment and provides a special procedure that will ensure to the landlord vacant possession of the leased premises forth with at the expiry of the fixed period of tenancy, evicting whoever be in actual possession Such being the avowed object of prescribing the special procedure, service of a prior notice on the tenant upon receipt of the landlord 's application for recovery of possession and inviting his objections followed by an elaborate inquiry in which evidence may have to be recorded will rally frustrate that object.
[909F G] section B. Noronah vs Prem Kumari Khanna, [1980] I SCR 201, followed.
1.4 In ease there was in fact a mere ritualistic observance of the procedure while granting permission for the creation of a limited tenancy or where such permission was procured by fraud practised by the landlord or as a result of collusion between the strong and the weak, the solution lies not in insisting upon service of a prior notice on the tenant before the issuance of the warrant of possession to evict him but by insisting upon his approaching the Rent Controller during the currency of the limited tenancy for adjudication of his pleas no sooner he discovers facts and circumstances that tend to vitiate ab initio the initial grant of permission, and certainly not to wait till the landlord makes his application for recovery of possession after the 1) expiry of the fixed period under section 21.
The special procedure provided for the benefit of the landlord in section 21 warrants such immediate approach on the part of the tenant.
Of course, if the tenant aliunde comes to know about landlord 's application for recovery of possession and puts forth his plea of fraud or collusion etc.
at that stage the Rent Controller would inquire into such plea but he may run the risk of getting it rejected as an after thought.
[912A D] 1.5.
Except Rule 5 which deals with applications made under section 21 and which merely provides for period of limitation by saying that every application under section 21 shall be made by the landlord within six months from the date of the expiry of the period of tenancy, there is no other rule in Delhi Rent Control Rules 1959 framed by the Central Government under section 56 of the Delhi Rent Control Act, requiring a notice being served upon the tenant before the issuance of warrant or possession to evict him.
[907E G] 1.6.
Section 37 (1) of the Act also, cannot be construed as requiring service of a prior notice upon the tenant before issuance of a warrant of possession against him.
All that sub section (1) of section 31 of Delhi Rent Control Act does is to incorporate a rule of natural justice, namely, that an order prejudicially affecting a person shall not be made without hearing him and considering his objections if any to the proposed order.
But an order can be said to affect a person prejudicially only if any right of his would be affected adversely and in view of the non obstinate clause contained in section 21 the tenant on the expiry of the limited period has no right or protection whatsoever under any law to continue in possession and as such the issuances of a warrant of possession directing him to vacate the premises in his Occupation cannot be regarded as one which prejudicially affect him.
[907H; 908C D]