judgement:
Civil Appeal No. 49 of 1954.
Appeal by special leave from the judgment and order dated the 16th August, 1949, of the Punjab High Court in Regular First Appeal No. 57 of 1949 arising out of the judgment and order dated the 30th November, 1945, of the Court of Senior Sub Judge, Gurdaspur, in Suit No. 298 of 1944.
H. J. Umrigar and K. L. Mehta, for the appellants.
B. section Narula, for the respondents.
549 1957.
September 24.
The following Judgment of the Court was delivered by KAPUR J.
This appeal by Special Leave is brought from the judgment and decree of the High Court of the Punjab, dated August 16, 1949, reversing the decree of the trial court which had decreed the plaintiffs ' suit on a mortgage.
The plaintiffs who are the appellants in this appeal claim to be the legatees under a registered will of their mother 's father Lala Guranditta Mal executed on September 6, 1944.
One of the items bequeathed to them was the rights in a mortgage executed by the defendants in favour of the testa tor on October 24, 1932, for Rs. 6,000.
On October 25, 1944, they brought a suit in the court of the Senior Subor dinate Judge, Gurdaspur for the recovery of Rs. 5,392 2 0 on the basis of the mortgage.
They alleged that they were the " representatives and heirs " of Lala Guranditta Mal under the will and in their replication they just stated: " We are heirs and representatives of Lala Gurandit ta Mal mortgagee deceased. " Inter alia the defendants pleaded that they had no knowledge of the will alleged to have been made by Guranditta Mal and they denied that the plaintiffs were heirs and representa tives of the mortgagee and therefore had no locus standi to sue.
Five issues were stated by the learned trial judge out of which the issue now relevant for the purpose of this appeal is the first one: (1) Have the plaintiffs a locus standi to maintain the present suit as successors in interest of Guranditta de ceased ? The learned Subordinate Judge held that the will had the presumption of its correct execution " because it was regis tered and also that not obtaining the pro.
bate of the will was no bar to the.
plaintiffs obtaining a decree and passed a preliminary mortgage decree.
On the matter being taken in appeal to the High Court the decree of the trial court was reversed and the suit of the plaintiffs dismissed but the parties were left to bear their own costs.
The High Court held; 550 It is thus clear that attestation by two witnesses was necessary in order to validate the will now before us.
As this requirement of law has not been satisfied the plain tiffs had no locus standi to maintain the suit.
" A prayer made for the admission of additional evidence under 0. 41, r. 27 of the Civil Procedure Code was rejected.
The High Court refused leave to appeal under article 133 but Spe cial Leave was granted on October 21, 1952.
In the mean while the probate of the will of Lala Guranditta Mal was granted by the District Judge of Gurdaspur on July 11, 1951, in favour of the present appellants and their mother Mussam mat Har Devi.
The appellants made an application in this court for the admission of additional evidence and prayed that the " probate be placed on the record " as the "probate of the will operated as a judgment in rem ".
They also applied to add Mussammat Har Devi as a respondent in the appeal.
An objection to the admission of additional evidence at this stage, is taken by the respondents on the ground that the probate was obtained without their knowledge and that the application was made at a late stage, it deprived the re spondents of the valuable right which vests in them because the claim has become statute barred and that there is no provision in the Rules of this court for the admission of additional evidence.
It is clear that the probate was applied for and obtained after the judgment of the High Court and therefore could not have been produced in that court.
The judgment of the Probate Court must be presumed to have been obtained in accordance with the procedure prescribed by law and it is a judgment in rem.
The objec tion that the respondents were not parties to it is thus unsustainable because of the nature of the judgment itself.
As to the power of this court, there is no specific provi sion for the admission of additional evidence but r. 5 of 0.
45 of the Supreme Court Rules recognises the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent 551 an abuse of process of the court.
The Privy Council in Indrajit Pratap Sahi vs Amar Singh(1) said: " that there is no restriction on the powers of the Board to admit such evidence for the non productior, of which at the initial stage sufficient ground has been made out.
The powers of this Court in regard to the admission of additional evidence are in no way less than that of the Privy Council.
Moreover in deciding the appeal we have to take the circumstances as they are at the time when the appeal is being decided and a judgment in rem having been passed in favour of the appellants it is necessary to take that additional fact into consideration.
It was so held by the Federal Court in Lachmeshwar Prasad Shukul vs Keshwar Lal Chaudhuri (2) where Gwyer C.J. quoted with approval the following observation of Chief Justice Hughes in Patterson vs State of Alabama(3): " We have frequently held that in the exercise of our appel late jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires.
And in determining what justice does require, the court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered.
" Varadachari j. was of the opinion that the hearing of an appeal is under the processual law of this country in the nature of a rehearing and therefore in moulding the relief to be granted in appeal an appellate court is entitled to take into account even facts and events which have come into existence since the decree appealed from was passed.
He referred to many Indian cases and to the practice of the Judicial Committee of the Privy Council and to some English cases.
In our opinion the fact of the grant of the probate which has supervened since the decision under appeal was given and which has been placed before this court must be taken into consideration in deciding the appeal.
In that event the infirmity in the appellant 's (i) LR.
(1923) 50 I.A. 183, 19r.
(2) (3) ; , 607 552 case due to the want of proper attestation of the will inder section 63(1)(c) of the Indian Succession Act would be removed.
Because of the view we have taken the other objection raised by the respondents becomes wholly inefficacious.
The find ing of the High Court on this point is therefore reversed.
We, therefore, allow this appeal, set aside the judgment and decree of the Punjab High Court and remit the case to the High Court for decision of the other issues which had not been decided.
As the appellants did not obtain the probate till after the appeal was filed in this court and made the application for the admission of additional evidence at such a late stage, they will pay Rs. 500 as costs of this court to the respond ents within two months.
In default of such payment the appeal shall stand dismissed with costs, i.e., Rs. 500.
Appeal allowed.

summary/full:
Under a registered will, mortgagee rights in certain proper ty were bequeathed to the appellants.
They filed a suit to recover the money on the basis of the mortgage without obtaining probate of the will.
The respondents challenged the locus standi of the appellants to sue.
The trial Court decreed the suit holding that the will being registered there was a presumption of due execution.
On appeal the High Court dismissed the suit on the ground that attestation of the will by two witnesses had not been proved.
Thereaf ter probate of the will was obtained in favour of the appel lants and their mother.
In appeal before the Supreme Court appellants made an application for the admission of the probate as additional evidence and for making their mother a party.
The respondents opposed the application.
Held, that the Supreme Court has the power to admit addi tional evidence in appeal.
In deciding an appeal the Su preme Court has to take the circumstances as they are at the time when the appeal is being decided, and the probate being a judgment in rem must be taken into consideration.
The objection that the respondents were not parties to the probate proceedings is unsustainable because of the nature of the judgment itself.
Inderjit Pratap Sahi vs Amar Sinah, L. R. (1923) 50 I. A. 183, Lachmeshwar Prasad Shukul vs Kishwar Lal Chaudhuri, , followed.


judgement:
Appeal No. 2726 of 1972 From the Judgment and Order dated 4.8.1971 of,the Andhra Pradesh nigh Court in L.P.A. No. 48 of 1969 A.S. Nambiar, G.N. Rao and Attar Singh for the Appellant.
360 G.S. Ramaiah, and B. Parthasarthi for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
This appeal by the defendant is by Special Leave and challenge is to the decision of a division bench of the Andhra Pradesh High Court in a Letters Patent appeal.
Plaintiff asked for a decree for possession after evic tion of the defendants and claimed mesne profits both past and future.
Plaintiff and Veeraraju happened to be sons of Ramamurty.
The two brothers had amicably partitioned their properties in 1909.
Veeraraju died in 1927 leaving behind his widow.
As Ramamurty sold certain properties from Veera raju 's share in 1928, the widow raised dispute and mediators brought about a settlement leading to the execution of a Deed of Settlement dated August 18, 1937, whereunder Rama murty settled certain properties on the widow with life interest and upon her death, those properties were to revert to Ramamurty or his heirs.
After the widow 's death, the plaintiff who is son of Ramamurty claimed the properties but defendant No. 1 who is the brother of the widow set up title thereto under a Will dated May 14, 1962 of the widow.
The main question that arose for consideration in the courts below was whether the life estate created in favour of Veeraraju 's widow under the Settlement Deed had been transformed into full ownership under section 14(1) of the of 1956.
All the three courts have held that the life estate carved out under the 1937 settlement did not get transformed into title in favour of the widow and she did not acquire any alienable interest in the properties to bequeath in favour of her brother.
The only question which has been canvassed at the hear ing is whether in the facts of the ease, sub section (1) or sub section (2) of section 14 of the Act is applicable.
It is not disputed that sub section (2) of section 14 is an exception to sub section (1) thereof and if the situation is covered by sub section (2), the transformation provided for in sub section (1) would not take place.
The Settlement Deed is an instrument contemplated under sub section (2) and admittedly it created a restricted estate in favour of the widow.
Therefore, sub section (1) of section 14 would not be attracted.
The submission of the appellant 's learned counsel that the Settlement deed brought the properties covered by it in exchange or in lieu of properties unauthorisedly alienated by Ramamurty and as the widow had full title in the alienated 361 property, title must be held to have accrued in favour of the widow in the properties covered by the settlement cannot be accepted.
The appeal fails and is dismissed.
Parties are directed to bear their own costs in this Court.
M.L.A. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
Under a deed of settlement dated August 18, 1937, the respondent 's father settled certain properties on the widow of his son with life interest and upon her death those properties were to revert to the Settlor or his heirs.
After the widow 's death, the respondent claimed the properties under the aforesaid deed of settlement.
However, the appel lant, brother of the widow set up title thereto under a Will executed by the widow on May 14, 1964.
The question that arose for consideration in the courts below was whether the life estate created in favour of the widow under the Settlement Deed had been transformed into full ownership under section 14(1) of the of 1956 and all the three courts held that the fife estate carved out under the 1937 Settlement did not get transformed into title in favour of the widow and she did not acquire any alienable interest in the properties to bequeath in favour of her brother.
Dismissing the appeal by the appellant, HELD: 1. Subs.2 of section 14 of the is an exception to subs.
1 thereof and if the situation is covered by subs.
2, transformation provided for in subs.
1 would not take place.
[360F] The settlement deed in the instant case, is an instru ment contemplated under subs.2 and admittedly it created a restricted estate in favour of the widow.
Therefore subs.
1 of section 14 would not be attracted.
[360G]


judgement:
Special Leave Petition (Civil) No. 3486 of 1986.
From the Judgment and Order dated 6.1.1986 of the Madhya Pradesh High Court in Misc.
Petition No. 2577 of 1984.
K.K. Venugopal, G.L. Sanghi, M.N. Krishnamani and Diwan Balak Ram for the Petitioner.
Rameshwar Nath for the Respondents.
The order of the Court was delivered by VENKATARAMIAH, J.
The petitioner in the above petition filed under Article 136 of the Constitution has prayed for special leave to appeal against the judgment of the High Court of Madhya Pradesh in Miscellaneous Petition No. 2577 of 1984 dated 6.1.1986.
In the petition filed under Article 226 of the Constitution before the High Court the petitioner had questioned the validity of an advertisement issued by the Madhya Pradesh Road Transport Corporation (hereinafter referred to as 'the Corporation ') inviting tenders from owners of motor vehicles for plying their vehicles on the routes mentioned therein as nominees of the Corporation under the permits issued in favour of the Corporation under the provisions of the (hereinafter referred to as 'the Act ').
It is alleged that the petitioner who was an unemployed graduate entered into an agreement with the Corporation to ply his bus as a nominee on the route Gwalior to Chinor via Dabra for a period of five years ending on December 23, 1982.
The route in question came within scheme No. 38 published under section 68 C of the Act.
The permit of the Corporation was to expire on 23.12.1982.
Therefore the Corporation applied for renewal of its permit but since it took time for finalisation, tempo rary permits were issued from time to time.
The petitioner was permitted to ply his 372 bus on the monthly basis during that period.
Under the agreement the petitioner was liable to pay periodically certain amount to the Corporation as nomination fees or supervision charges and additional taxes.
But on 12.8.1984, as stated earlier, tenders were invited by the Corporation from private operators for the grant of the privilege of running buses as stage carriages as the nominees of the Corporation.
Aggrieved by the said advertisement the peti tioner filed the writ petition, referred to above, in the High Court.
The petitioner contended that even though he had been regularly paying the nomination fees and taxes, yet the Corporation in order to earn more money by way of nomination fees had invited tenders from others with a stipulation that tenders of those giving the highest offers by way of nomina tion fees would be accepted and they would be appointed nominees of the Corporation to ply the stage carriages.
The petitioner further contended that the decision to invite tenders was arbitrary and illegal.
In the Writ Petition he obtained an interim order dated 11.9.1984 under which he was allowed to operate his motor vehicle as a stage carriage on the same terms and conditions as the nominee of the CorpOra tion.
The petitioner continued to ply his motor vehicle on the route in question on the basis of the temporary permits issued in the name of the Corporation till 31.5.1985.
Since no temporary permit was obtained by the Corporation thereaf ter the petitioner could not ply his motor vehicle in ques tion.
In the meanwhile under the orders passed by this Court in Special Leave Petition Nos. 941, 4667 to 4669, and 7115 7117 of 1985 dated July 22, 1985 filed by some others, the petitioners therein who were similarly situated were allowed to ply their motor vehicles on some other routes as the nominees of the Corporation for a period of five years.
The above order, it is alleged, was passed on a concession made bY the Corporation.
The said order is not supported by reasons.
The petitioner relying upon the above order con tended before the High Court in the writ petition filed by him that he should also be permitted to ply his motor vehi cle as a nominee of the Corporation for a further period of five years.
The High Court declined to grant the request of the petitioner since by then the scheme No. 38 had been approved and had come into effect from June 1, 1985 and dismissed the writ petition on January 6, 1986.
Aggrieved by the order of the High Court the petitioner has filed this petition.
It is contended on behalf of the petitioner that since the petitioner had been permitted to operate his motor vehicle as a stage carriage service as a nominee of the Corporation under a programme called 'Half a Million Job Programme ' initiated by the Government of India which was being implemented by the State of Madhya Pradesh he could not be denied the privilege of continuing to operate his motor vehicle on the notified route in question.
Reliance is also placed by the learned counsel for the petitioner on the order passed by this Court on July 22, 1985 in some of the special leave petitions referred to above permitting the petitioners therein to operate their motor 373 vehicles as the nominees of the Corporation for a further period of five years.
After the disposal of the special leave petitions referred to above on July 22, 1985 by this Court, on October 17, 1985 a Constitution Bench of this Court delivered its judgment in Adarsh Travels Bus Service & Anr., vs State of U. P. & Others.
; In that case the Constitution Bench held that reading sections 68~C, 68 D(3) and 68 FF of the Act together it was clear that once a scheme was published under section 68 D of the Act in relation to any area or route or portion thereof, whether to the exclusion, complete or partial of other per sons or otherwise, no person other than the State Transport Undertaking could operate a stage carriage on the notified route or in the notified area except as provided in the scheme itself.
Admittedly, the approved scheme published under section 68 D of the Act has come into operation in respect of the route in question excluding the operation of stage carriages by all others.
Section 68 FF of the Act states that where an approved scheme has been published under sub section (3) of section 68 D of the Act in respect of any notified area or notified route the State Transport or the Regional Transport Authority, as the case may be, shall not grant any permit except in accordance with the provisions of the scheme.
It further provides that where no application for a permit has been made by the State Transport Undertaking in respect of any notified area or notified route in pursuance of an approved scheme, the State Transport Authority or the Re gional Transport Authority, as the case may be, may grant temporary permits to any person in respect of such notified area or notified route subject to the condition that such permit shall cease to be effective on the issue of a permit to the State Transport Undertaking in respect of that area or route.
It is not, however, permissible under the Act for the Corporation to obtain a permit under Chapter IV A of the Act and to allow a private operator as its nominee to oper ate under that permit his motor vehicle as a stage carriage on the notified route.
It cannot by granting such permission collect any money either as nomination fees or as royalty 'or supervision charges.
Section 59 of the Act which lays down the general conditions attached to all permits provides that save as provided in section 61 of the Act, a permit shall not be transferable from one person to another except with the permission of the Transport Authority which granted the permit and shall not without such permission operate to confer on any person to whom a vehicle covered by the permit is transferred any right to use that vehicle in the manner authorised by the permit.
Section 61 of the Act only deals with the question of transfer of the permit on the death of the holder of the permit in favour of his successor.
Section 42 of the Act provides that no owner of a transport vehicle shall use or permit the use of the vehicle in any public place whether or not such vehicle is actually carrying any passenger or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State TranSport Authority or the Commission 374 authorising the use of the vehicle in that place in the manner in which the vehicle is being used.
Section 42 and section 59 of the Act which are in Chapter IV of the Act apply to permits issued under Chapter IV A of the Act also since in Chapter IV A of the Act we do not find any provi sion which is inconsistent with these two sections.
Section 68 B of the Act only provides that Chapter IV A of the Act and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter IV of the Act or any Other law for the time being in force or in any instrument having effect by virtue of any such law.
Even though the Corporation is established by the State Government under the and the State Government has by an executive order approved the action of the Corporation to allow private operators to operate their vehicles under the permits issued to the Corporation as the nominees of the Corporation, the Corporation cannot in law allow its nominees to exploit the permits by running their motor vehicles against payment of some amount to the Corporation since there is no statutory provision authorising the grant of such permission.
It would have been different if there had been a law corresponding to the Uttar Pradesh Motor Vehicles Special Provisions Act (27 of 1976) under which the competent authority can authorise such operation subject to the conditions specified therein (See Sumer Chand Sharma and Another vs State of U.P. and Another, ; The provisions of the Act and in particular sections 42 and 59 clearly debar all holders of permits including the Corporation from indulging in ' such unauthorised trafficking in permits.
The agreement entered into by the petitioner with the Corporation is clearly contrary to the Act and cannot, therefore, be enforced.
In the circumstances, the petitioner is not entitled to the issue of a writ in the nature of mandamus to the Corporation to allow him to operate his motor vehicle as a stage car riage under the permit obtained by the Corporation as its nominee.
It follows that the advertisement issued by the Corporation is equally ineffective.
The position would not be different even where the permit is issued in favour of the Corporation under Chapter IV of the Act.
If the Corpora tion cannot run its vehicle under a permit issued to it, it must surrender it so that the Regional Transport Authority may grant the permit to some other deserving applicant or it must transfer it to some body else with the permission of the Regional Transport Authority granted under section 59 of the Act.
It cannot however allow the permit to be used by somebody else to run his vehicle either for consideration or without consideration.
If it does so it would be exercising the power of the Regional Transport Authority.
The Corpora tion cannot thus indirectly clutch at the jurisdiction of the Regional Transport Authority.
It is hoped that the Corporation will desist from entering into such agreements with third parties, which are wholly illegal and from con tinuing to allow them to run their vehicles as its nominees.
The concerned Regional Transport Authority should immediate ly take action to stop such illegal operation of transport 375 vehicles on all routes, both notified and non notified routes.
It is seen that in one of the documents filed before the High Court it was asserted that the Corporation could allow private operators to operate their vehicles in the name of the Corporation under section 19(2)(h) of the Road Transport Corporation Act, 1950.
That provision only authorises the Corporation to purchase or otherwise secure by agreement vehicles owned or possessed by the owner of any other under taking for use thereof by the Corporation for the purposes of its undertaking.
It does not however authorise the Corpo ration to permit another person to run his vehicle on his own under a permit issued to the Corporation by paying some amount to the Corporation.
Hence no reliance can be placed on the above provision.
It was lastly contended on behalf of the petitioner that since the Corporation was not in a position to operate its motor vehicles on the notified routes in accordance with the approved scheme, the scheme itself is liable to be quashed.
Since the said prayer is not made in the writ petition, we cannot consider the said question It is open to the peti tioner if he is so advised to approach the High Court for appropriate relief in this regard.
We may, however, record here that in the counter affidavit filed before this Court it is stated that the Corporation is already operating its own motor vehicles on the route in question.
The Special Leave Petition is, however, dismissed.
P.S.S. Petition dismissed.

summary/full:
Section 68 FF of the prohibits grant of permit in respect of notified area or notified route by State Transport Authority or the Regional Transport Authority except in accordance with the scheme published under subs.
(3) of section 68 D but provides for grant of tempo rary permits in cases where no application for a permit has been made by the State Transport Undertaking in respect of such notified area or route.
Section 59 bars transfer of permits from one person to another except with the permis sion of the concerned Transport Authority.
Section 42 pro hibits the owners of transport vehicles from plying them in public places except in accordance with the conditions of the permit.
Under an agreement entered into with the respondent Corporation the petitioner was permitted to PlY his bus on a specified route as a nominee of the former for a period of five years ending on December 23, 1982.
Thereafter the respondent was issued temporary permits and the petitioner was permitted by it to ply his motor vehicle on monthly basis.
The route in question had by that been brought within a scheme published under section 68 C of the Act.
The respondent through an advertisement dated August 12, 1984 invited tenders from private operators for the grant of privilege of running buses as stage carriages as its nomi nees.
Aggrieved by the said advertisement the petitioner filed a writ petition in the High Court assailing the deci sion to invite tenders as arbitrary and illegal, and for a writ in the nature of mandamns directing the respondent Corporation to allow him to ply his motor vehicle as its nominee for a further period of five years.
Under an interim order of the Court he continued to ply his bus as a stage carriage till May 31, 1985.
Subsequently, the High Court dismissed the petition since the scheme 370 published under section 68 C of the Act had been approved and brought into effect from June 1, 1985.
Dismissing the petition for special leave, the Court, HELD: 1.1 It is not permissible under the for a State Transport Undertaking to obtain a permit under Chapter IV A and to allow a private operator as its nominee to operate under that permit his motor vehicle as a stage carriage on the notified route.
It cannot by granting such permission collect any money either as nomination fees or as royalty or supervision charges.
Section 42 and 59 of the Act which equally apply to permits issued under Chapter IV A, debar all holders of permits, including the State Transport Undertakings from indulging in such unauthorised trafficking in permits.
[373E, 374A, D] 1.2 The petitioner was not, therefore, entitled to the issue of a writ in the nature of mandamus to the respondent Corporation to allow him to operate his ' motor vehicle as a stage carriage under the permit obtained by the latter, as its nominee.
The agreement entered into by the petitioner with the respondent was clearly contrary to the Act and could not be enforced.
The advertisement issued by the respondent was equally ineffective.
[374E] 2.
If the respondent Corporation cannot run its vehicle under a permit issued to it, it must surrender it so that the Regional Transport Authority may grant the permit to some other deserving applicant or it must transfer it to somebody else with the permission of the Regional Transport Authority granted under s.59 of the Act.
It cannot allow the permit to be used by others either for consideration or without consideration.
If it does so it would be exercising the power of the Regional Transport Authority.
The Corpora tioncannot thus indirectly clutch at the jurisdiction of the Regional Transport Authority.
[374F] 3.1 Even though the Corporation was established by the State Government under the and the State Government had by an executive order approved the action of the Corporation to allow private operators to operate their vehicles under the permits issued to the Corporation, the Corporation could not in law allow its nominees to exploit the permits in such manner.
[374B] 3.2 Section 19(2)(h) of the Road Transport Corporation Act only authorises the Corporation to purchase or otherwise secure by agreement vehicles owned or possessed by the owner of any other undertaking for use thereof for the purpose of its undertaking.
It does not authorise the 371 Corporation to permit another person to run his vehicle on his own under a permit issued to the Corporation by paying some amount to the Corporation.
[375B] 3.3 It would have been different if there had been a law corresponding to the Uttar Pradesh Motor Vehicles Special Provisions Act (27 of 1976) under which the competent au thority can authorise such operation subject to the condi tions specified therein.
[374C] Adarsh Travels Bus Service & Ant., vs State of U.P. & Ors., ; ; Sumer Chand Sharma & Anr.
vs State of U.P. & Anr.
; , referred to.


judgement:
Appeal No. 1124 of 1973.
From the Judgment and Order dated 29.11.1972 of the Madras High Court in C.R.P. No. 1066 of 1972.
K. Ramkumar for the Appellant.
The Judgment of the Court was delivered by THAKKAR, J.
The view taken by the High Court that a tenant sought to be evicted on the ground of unlawful sub letting under Section 10(2)(ii)(a)1 of the Tamil Nadu Build ings (Lease and Rent Control) Act, 1960 must himself have been guilty of the contravention and that the alleged con travention by his father when he was a tenant can be of no avail for evicting him is assailed in this appeal by special leave.
The High Court has so pronounced in the backdrop of the admitted fact that respondent had himself not created any sub tenancy after he became the tenant in 1968 upon the death of his father.
The plea raised by the appellant that the tenancy created in 1952 by the father of respondent rendered him liable to be evicted in the suit instituted by the appellant in 1970 was repelled.
The unsuccessful land lord has now invoked this Court 's jurisdiction under Article 136 of the Constitution of India.
Facts not in dispute are: 1.
The father of the appellant had granted a lease in favour of the 1.
"10(2) " A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf.
If the Controller, after giving the tenant a reasonable oppor tunity of showing cause against the application, is satis fied (i) xxx xxxx (ii) that the tenant has after the 23rd Octo ber, 1945 without the written consent of the landlord (a) transferred his right under the lease or sub let the entire building or any portion thereof, if the lease does not confer on him any right to do so, or X X X X XXXXX" 381 father of respondent prior to 1952 (the exact date or year is not on record).
The father of the appellant as also the father of respondent both have died.
Respondent was accepted as a tenant upon the death of his father in 1968.
The suit for eviction giving rise to the present appeal was instituted for eviction on the ground of unlawful subletting in 1970 by the appellant who had inherited the property from her father.
Admittedly, neither the appellant nor the respondent have any personal knowledge about the terms and conditions of the lease originally granted by the father of the appel lant in favour of the father of respondent No. 1. 6.
So also neither the appellant nor the respondent have any personal knowledge in what circumstance the father of the respondent had created a sub tenancy in favour of Kuppuswami Sah way back in 1952, eighteen years before the institution of the suit.
Neither the appellant nor re spondent has any personal knowledge as to whether or not the sub tenancy was created with the written consent of the landlord eighteen years back in 1952.
And on these facts the prayer for eviction must be denied regardless of the question of interpretation which will be presently tackled.
The mere fact that for as many as 18 years no objection was raised, and no action for possession was instituted against the father of the appellant in his lifetime notwithstanding the fact that a sub tenant was openly in occupation of a part of the rented premises, would give rise to an inference that it was never treated as unlawful sub letting by the appellant or her father.
There is nothing on record to show that the subletting in ques tion, which was made in 1952, 18 years before the institu tion of the suit in 1970, was in violation of the relevant provisions of law.
The appellant cannot succeed unless the appellant establishes that Section 10(2)(ii)(a) has been violated and the tenant has incurred the liability to be evicted on the ground of unlawful sub letting notwithstand ing the fact that the lease did not confer on him any such right, and that such unlawful sub tenancy was created with out the 382 written consent of the then landlord.
There is no evidence, direct or circumstantial, on the basis of which it can be said that the lease did not confer on the father of the respondent the right to create a sub tenancy.
Or that it was done without the written consent of the then landlord, that is to say, the father of the appellant.
Under the circum stances, in any view of the matter the appellant cannot successfully evict the respondent on the ground of having created an unlawful sub tenancy within the meaning of Sec tion 10(2)(ii)(a) of the Act.
Examining the profile of the view taken by the High Court that the offending sub letting must be by the tenant sought to be evicted himself, and not by his predecessor, it appears to be blemishless.
Section 10(2) opens with the words "A landlord who seeks to evict his tenant" and pro vides that if the tenant has created a sub tenancy without the written consent of the landlord, he will be liable to be evicted.
Pray who is the 'tenant ' whom the landlord wants to evict? That tenant is the respondent.
Did he violate Section 10(2)(ii)(a) and sub,let the rented premises? The answer is 'no '.
It is of little use to give the answer, not he, but his predecessor, his late father, had sub let the premises.
When the statute says the tenant who is sought to be evicted must be guilty of the contravention, the Court cannot say, 'guilt of his predecessor in interest ' will suffice.
The flouting of the law, the sin under the Rent Act must be the sin of the tenant sought to be evicted, and not that of his father or predecessor in interest.
Respondent inherited the tenancy, not the sin, if any, of his father.
The law in its wisdom seeks to punish the guilty who commits the sin, and not his son who is innocent of the rent law offence.
It being a penal provision in the sense that it visits the violator with the punishment of eviction, it must be strict ly construed, for it causes less misery to be sheltered in a jail, than to be shelterless without.
Be that as it may the conclusion recorded by the High Court is fault free.
We, therefore, see no reason to interfere with the order of the High Court in exercise of our jurisdiction under Article 136 of the Constitution of India.
The appeal accord ingly fails and is dismissed.
There will be no order as to costs.

summary/full:
The appellant landlord instituted an eviction suit in 1970 against the respondent tenant on the ground of unlawful subletting.
The respondent had inherited the tenancy upon the death of his father in 1968.
The subletting was created, in 1952 during the life time of appellants father.
Neither the appellant, nor the respondent had any personal knowledge about the terms and conditions of the lease originally granted by the father of the appellant in favour of the father of the respondent.
The High Court, while dismissing the appeal of the appellant landlord, held that a tenant sought to be evicted on the ground of unlawful subletting under s.10(2)(ii)(a) of the Tamil Nadu Buildings (Lease and Rent control) Act, 1960 must himself have been guilty of the contravention and that the alleged contravention by his father when he was a tenant can be of no avail for evicting the tenant.
Dismissing the Appeal of the appellant landlord, this Court, HELD: 1(i) Section 10(2) of the Act opens with the words, "a landlord who seeks to evict his tenant" and pro vides that if the tenant has created a subtenancy without the written consent of the landlord, he will he liable to be evicted.
When the statute says the tenant who is sought to he evicted must he guilty of the contravention, the Court cannot say, "guilt of his predecessor in interest" will suffice.
[382C D] (ii) The flouting of the law, the sin under the Rent Act, must he the sin of the tenant sought to be evicted and not that of his father or predecessor in interest.
It being a penal provision in the sense that it visits the violator with the punishment of eviction, it must he strictly con strued, for it causes less misery to be sheltered in a jail, than to be shelterless without.
[382E] In the instant case, there is nothing on record to show that the subletting 380 which was made in 1952,18 years before the institution of the eviction suit in 1970, was in violation of the relevant provisions of law.
There is no evidence, direct or circum stantial, on the basis of which it can be said that the lease did not confer on the father of the respondent the right to create a sub tenancy, or that it was done without the written consent of the then landlord, the father of the appellant.
Under these circumstances, the appellant cannot successfully evict the respondent on the ground of having created an unlawful sub tenancy within the meaning of S.10(2)(ii)(a) of the Act.
[381G, 382A B]


judgement:
Special Leave Petition (Crl).
1682 And 3120 of 1983.
377 From the Judgment and Order dated 12.4.1983 of the Punjab and Haryana High Court in Crl.
Revision No. 1427 & 1428 of 1980.
Govind Mukhoty and Sarva Mitter for the Petitioners.
M.C. Bhandari, Harbans Lal, Dr. Y.S. Chitale, C.V. Subba Rao, S.K. Bisaria, Ravindra Bana and N.S. Das Bahl for the Respondents.
The Order of the Court was delivered by These two special leave petitions and a writ petition were filed for a common purpose the writ petition question ing the vires of section 321 of the Code of Criminal Proce dure of 1973 and these two special leave petitions question ing the correctness of the order of the (High Court by which it affirmed the order of the Chief Judicial Magistrate of Bhiwani, according permission under the same section 321 for withdrawal of a prosecution against the respondents except ing the State of Haryana.
We have already dismissed the writ petition and now proceed to dispose of the special leave applications.
As lengthy arguments were advanced we propose to make a brief but speaking order.
Having heard learned counsel for the parties we are inclined to think that the order of the learned Chief Judi cial Magistrate was perhaps not appropriate in law.
The High Court did go into the question afresh in its revisional jurisdiction but there could also be some arguments possible with reference to what the High Court has said.
We are, however, definitely of the view that no useful purpose will be served in setting aside the order of the Chief Judicial Magistrate as affirmed by the High Court and in directing the prosecution to proceed as there is, in our opinion, no chance of ultimate conviction.
Allowing such a prosecution to proceed will only be harassment to the parties and wast age of public time.
Now we briefly indicate some features to justify this conclusion of ours.
The incident is dated 2.4.1974.
The First Information Report has been registered suo motu by the police in November 1977 after a gap of more than 3 1/2 years.
The victims of the injuries were also accused of criminal offences said to have taken place at the same point of time and were produced before the Judicial Magistrate of Bhiwani on 3.4.1974.
The Judicial Magistrate enlarged them on bail and finding in juries on their persons directed them to be medically exam ined.
There is no material before us to show that the vic tims had complained to the learned Judicial Magistrate that the present accused persons were the authors of the injuries on them.
We gave an opportunity to the petitioners to pro duce such material but with no result.
For the first time, 378 witnesses to the occurrence were examined towards the end of 1977 and beginning of 1978 during investigation.
The learned counsel drew our attention to the fact that one of the accused persons happens to be the son of a polit ical figure wielding influence.
We find that this fact did not deter the Judicial Magistrate in ordering release of the victims who had been produced before him as accused persons.
The learned Magistrate also made an order for their medical examination and that was carried out.
There is no justifica tion as to why a private complaint was not made contempora neously and the matter had to wait for 3 1/2 years for investigation on the basis of the First Information Report.
The learned counsel also pointed out that Emergency had intervened and during that period a situation prevailed where the victims could not open their mouths.
A period of more than 14 months intervened between the occurrence and the promulgation of emergency.
A Commission was set up after the emergency had ended and holding a fresh elections, a different political party had come to power.
Following the report of the Commission this prosecution had been launched.
The petitioners ' learned counsel did not dispute the position that the finding of the Commission is not evidenced and no conviction can lie on the conclusion either.
In these circumstances, chances of con viction are too far fetched and bleak.
We do not think it is in public interest that the prosecution should proceed.
We may add that in a report under section 173(8) of the Code, the investigating agency has also indicated that adequate evidence has not been forthcoming to support the prosecu tion.
It is thus not necessary to examine the legal aspect canvassed in the special leave petitions and argued during hearing.
Both the petitions are dismissed.
S.R. Petitions dismissed.

summary/full:
In respect of certain incident dated 2.4.1974, the First Information Report has been registered suo motu by the Police after 3 1/2 years, on the basis of the report of Commission of Inquiry.
The victims of the injuries were also accused of criminal offences said to have taken place at the same point of time who were produced before the Judicial Magistrate of Bhiwani on 2.4.74 and were also medically examined.
They did not file any private complaint, though released on bail.
Based on the report of the Investigating Agency under section 173(8) of the Code of Criminal Proce dure Code, the Public Prosecutor filed an application under section 321 of the Code for withdrawal of the prosecution case which was granted by the Chief Judicial Magistrate, Bhiwani.
The High Court also affirmed the said order.
Hence the Special Leave Petitions.
Dismissing the petitions, the Court, HELD: In the facts and circumstances of the case, it is in public interest that the Prosecution should not proceed with the prosecution.
A report under section 173(8) of the Code of Criminal Procedure by the investigating agency indicated that adequate evidence has not been forthcoming to support the prosecution which was commenced suo motu on the basis of a report of the Commission of Inquiry on whose finding no conviction can lie.
The victims themselves who were the accused of criminal offences said to have taken place at the same point of time did not complain before the Magistrate concerned and did not file private complaints.
The pica that one of the accused persons was the son of a political figure wielding influence did not deter the Magis trate in ordering release the victims in the earlier case.
Further chances of conviction are too far fetched and bleak.
[378E, B]


judgement:
Appeal No. 1622 of 1985 From the Judgment and Order dated 26.9.1984 of the Allahabad High Court in Writ Petition No. 5892 of 1983.
R.B. Mehrotra for the Appellant.
Raja Ram Agarwal, D.N. Mukharjee and M.M. Kashtriya for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
In the administration of justice process often makes a mockery of the purpose.
This appeal is an example of the same.
This appeal by special leave arises out of the judgment and order of the High Court of Allahabad dated 26th Septem ber, 1984.
The question involved in this appeal is whether the appellant is entitled to take advantage of the procedure under section 24 C of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction), Act, 1972 as amended from time to time (hereinafter called the said Act) in respect of the First floor of House No. 217 218 415 Machhli Bazar, Sadar, Meerut Cantonment, of which the appel lant is the owner and the landlord.
The first floor of the said building was in the tenancy of respondent No. 1 on a monthly rent of Rs. 60.
The appellant was at the relevant time posted as Superintendent, Military Farm, Meerut Canton ment.
In that capacity he was allotted Government quarter No. 47 belonging to the Union of India.
On 8th November, 1979 he was given a notice to vacate the Government quarter by the Deputy Assistant Director intimating that since the appellant had his own house at Meerut Cantonment, he should vacate the government quarter allotted to him by the order dated 8th August, 1979.
In view of that the appellant moved an application under section 24 C of the said Act.
It is the case of the appellant that he owns no other house except the one involved in the present appeal.
Section 24 B(1) of the said Act which gives the right to move under section 24 C of the said Act provides as follows: "S.24 B(1) Where a landlord who, being a person in occupation of any residential public building is required, by, or in pursuance of, any general or special order made by the Government or other authority concerned, to vacate such building, or in default, to incur certain obligations, on the ground that he owns, in the same city, municipality, notified area or town area, a residential building either in his own name or in the name of any member of his family, there shall accrue, on and from the date of such order.
to such landlord, a right to recover immediately possession of any building let out by him: Provided that nothing in this section shall be construed as conferring a right on a landlord owning, in the same city, municipality, notified area or town area, two or more dwelling houses, whether in his own name or in the name of any member of his family, to recover the possession of more than one dwelling house and it shall be lawful for such landlord to indicate the dwelling house, possession of which he intends to recover." In this appeal we are not concerned with other sub sections and other provisos of the said section.
The said application was contested by the tenant on number of grounds including the ground that the accommoda tion in the possession of the appellant was sufficient to accommodate his family members.
By an order dated 17th August, 1981, the application of the appellant was allowed by the Delegated Authority.
He held that the appellant was in the government service and he was due to retire on 30th June, 1980 and he had moved an application under the 416 provisions of section 24 B for getting his house vacated and getting possession of the same.
It was further held by him that in this house there was a joint latrine which created difficulty for the appellant.
Therefore the appellant had prayed that the possession of the first floor of the house in dispute should be delivered to him at an early date.
On this, notice having been given to the respondent, he stated in his counter that the application was not maintainable and had further contended that the present proceedings under section 24 C of the Act could not be taken, according to him, because the appellant did not need any residential accommodation whereas the tenant objector and respondent in this case was a poor man and had no other house.
It was contended before the Delegated Authority that the applicant landlord had two residential houses one in which the appellant landlord was living and the other in which the respondent/tenant objector was living.
It was the submission of the respondent tenant that the appellant landlord was in possession of residential accommodation and as such he had no right to get another residential accommodation vacated from the tenant.
The Delegated Authority observed as fol lows: "It is admitted by both the parties that the entire house is one and in its first floor tenant is living and the ground floor is in possession of the landlord.
Both the portions of the house are parts of one house and there fore there is no question of accepting it as a separate residential unit particularly when the tenant objector has himself in his own affidavit and objections stated that the bath room and the latrine is on the ground floor i.e it is situated in the portion of the landlord.
" It may be stated that respondent tenant had filed an affidavit showing his need.
The Delegated Authority who was the Addl.
District Magistrate held by his order dated 17th August, 1981 that the application of the appellant should be allowed and there should be an order for eviction.
There was an appeal from the said order before the Additional District Judge.
He, in his order, set out the facts referred to hereinbefore.
He also referred to a report dated 11th Decem ber, 1979 by the Inspector who supported the appellant 's case.
Before the appellate authority two points were urged namely, that the application was not maintainable under section 24 B or under section 24 C of the said Act, and secondly that the accommodation in the occupation of the landlord was sufficient for his need.
The tenant respondent contended before the learned District Judge that as the landlord was already in occupation of the ground floor of the house in question, he was not entitled to move an appli cation under the relevant sections.
Reliance was placed on the definition of 'building ' and the interpretation of the 'dwelling house '.
It was contended on behalf of the 417 landlord that the building as a whole had to be considered and not in part.
The Delegated Authority was unable to accept the contention urged on behalf of the tenant and held that the building meant a single structure and might be in occupation of more than one person.
It has also been held that the house having a common courtyard and a common en trance would be a single house and a landlord should not be forced to live with an outsider or with a person with whom he had no happy relations.
The Appellate Authority held that the building in question was just on the head of the portion of the ground floor in occupation of the landlord.
The tenant had to pass daily from the courtyard on the ground floor in order to attend the call of nature.
It was contended that no eviction of the landlord from the premises in his occupation had taken place but merely action had been indicated.
Therefore, recourse to section 24 B and section 24 C of the Act was unwarranted.
The learned District Judge was unable to accept those conten tions.
He accordingly dismissed the revision application.
An application was moved under Article 226 of the Con stitution before the High Court and the High Court by the impugned judgment and order has set aside the order of eviction.
It held that the building was situated within the Cantonment of Meerut.
The U.P. Act No. 28 of 1976 added Chapter IV A as to the question whether this Act would apply to buildings constructed and situated within the cantonment limit, it was observed that by the notification issued in exercise of the powers conferred by section 3 of the Canton ments, (Extension of Rent Control Laws) Act, 1957, the Central Government had extended to all the cantonments in Uttar Pradesh the provisions of the present Act in question as in force on the date of notification, and as a result of the issuance of the said notification Chapter IV A, became applicable to the building in question, according to the High Court.
It was, however, urged before the High Court on behalf of the respondent that Chapter IV A had been applied to the Cantonment areas on a subsequent date, i.e. 27th February, 1982, the Act being not applicable to the accommo dation in question in November, 1979 when the application under section 24 B of the Act was filed by the respondent and as such the same was liable to be dismissed.
It was, however, conceded by respondent that the revision order had been passed by the Additional District Judge on 27th April, 1983.
It was therefore submitted that the proper course in the circumstances of the instant case would have been to send back the case for fresh decision.
Reliance had been placed by the appellant on the decision in the case of Jai Singh Jairam Tyagi etc.
vs Mamanchand Ratilal/Igarwal and Ors., ; However, as the learned judge felt that on the second point the respondent was entitled to succeed, he did not decide this point taken in the writ petition by the respondent.
The second point urged before the learned judge was that as the appellant landlord was living in 418 the ground floor of the said house, section 24 B was not maintainable.
The learned judge found 'that the central idea of conferring the power on such a landlord to recover imme diately possession was that he was being evicted from his government quarter for residence.
The learned judge observed that the legislature did not want to leave such a person at the mercy of the laws delay.
Such a landlord was a class by himself and was entitled to take summary proceedings.
His case had to be urgently dealt with.
But, according to the High Court, if he had any house in the same, building then he would not come within the purview of section 24 B of the Act.
He was, however, not without a remedy.
He can take recourse to section 21(1A) of the said Act.
It was noted while chapter IV A which incorporated section 24 B and 24 C provided summary trial, the object of the two provisions namely section 21 on the one hand and section 24 B and 24 C of the said Act on the other differ from each other.
In this connection reliance was placed on certain decisions of this Court.
After referring to certain decisions, it was held that the expression "to recover immediately" indicated the ground where section 24 B could be applied there, there was consequential urgency to recover the possession of the building.
According to the learned judge, there would be no consequential urgency to recover if he was already in pos session of a dwelling house or where it could be made avail able to him at his choice.
The High Court accordingly al lowed the application under article 226 and set aside the orders of the delegated authority and the appellate authori ty.
Aggrieved by the said decision, the appellant has come up to this Court.
Two questions, therefore, arise in this appeal namely, firstly, whether the building with which we are concerned and which is situated in Cantonment of Meerut would be governed by the provisions of section 24 B and section 24 C of the Act, and secondly, whether in view of the facts and circumstances found, have the grounds been made out under section 24~B of the Act for eviction of the respondent from the premises in question in summary manner? It is not dis puted that the building in question is within the cantonment limits.
In the Act of 1972 (Act No. 13 of 1972), there was an amendment in 1976 and Chapter IVA was added by the U.P. Act.
No. 28 of 1976 with effect from 1976.
Section 24A, section 24 B and section 24 C are contained in the said chapter.
The said Amendment Act No. 28 of 1976 did not state whether the said chapter would be applicable to buildings constructed and situated within the cantonment limit.
The first question posed before the High Court but not answered by it was whether in view of the answer given to the second question, the provisions of those sections would be applica ble to the building in question.
By notification issued in the exercise of section 3 of the , the Central Government had 419 extended to all the Cantonments in Uttar Pradesh the provi sions of the Act in question, as in force on the date of that notification, in the State of U.P.
The said notifica tion being Notification No. S.R.O. 259 was issued in exer cise of the powers conferred by section 3 of the said Act and in supersession of the notification of the Government of India in the Ministry of Defence.
The said Notification extended to all the Cantonments in the State of Uttar Pra desh the Act (U.P. Act.
No. 13 of 1972), as in force on the date of the notification with certain modifications with which we are not concerned.
It was, therefore, contended that it could not have by virtue of that notification intro duced the provisions of Chapter IV A of the said Act to the Cantonment area which themselves were introduced by Amend ment Act No. 28 of 1976.
There was another notification dated 17th February, 1982 being Notification No. S.R.O. 47.
The said notification was also issued under section 3 of the aforesaid Act of 1957, mentioned hereinbefore and it stated that in supression of the previous notification, the Govern ment extended to all the cantonments in the State of Uttar Pradesh the provisions of the Act, with certain modifica tions with which we are not concerned in this case.
The 1957 Act authorises the Government to issue the notification as contemplated therein.
In the instant case, as noted hereinbefore, the appel lant had moved an application under section 24 C of the Act on 14th December, 1979 in respect of the premises in ques tion on receipt of notice to quit the government premises in his occupation.
The delegated authority made the order of release on 17th August, 1981.
There was a revision applica tion and it was disposed of by the Additional District Judge dismissing the revision on 27th April, 1983.
Therefore when the order was made in this case and the application was filed the building in the cantonment area did not come within the ambit of the Act in question.
When, however, the revisional order was passed by the Additional District Judge, the Act had come into operation and the building.
in question was within the purview of the operation of the Act.
In view of the ratio of Jai Singh Jairam Tvagi Etc.
vs Mamanchand Ratilal Agarwal and Ors.
(supra) it must be held that the provisions of Chapter IVA of the Act would be applicable.
The amending Act was passed for the express purpose of saving decrees which had already been passed.
Therefore action under section 24 C of the Act in this case was justified.
The High Court did not decide this point because it was of the opinion that the second point which we shall note presently, the High Court was in favour of the respondent.
We are, however, of the opinion that the first point urged on behalf of the respondent cannot be accepted in view of the position in law as discussed hereinbefore.
It was submitted on behalf of the respondent that section 24 B gave substantive rights to the appellant and section 24 C was the procedure for enforcing those substantive rights.
Therefore, these were not only procedural 420 rights.
Therefore, there was no question of retrospective operation to take away vested fight.
We are, however, of the opinion that it would be an exercise in futility if the application is dismissed on this ground it can be fried again and in view of the subsequent legislation as noted hereinbefore it was bound to succeed on this point.
In exercise of our discretionary power under article 136 of the Constitution it would not be proper to interfere in the facts and circumstances of the case on this ground.
In the premises in view of the ratio of the decision of this Court in Jai Singh 's case (supra) and reason mentioned hereinbe fore this contention urged on behalf of the respondent must be rejected.
The second question which is the substantial question in this appeal is, whether in view of the fact that respondent No. 3 was in occupation of the ground floor of premises No. 217 218 Machhli Bazar, Sadar, Meerut Cantt.
the first floor of which was in the tenancy of the appellant, the applica tion under section 24 B of the Act was maintainable? We have noted the provisions of section 24 B of the Act.
It may be mentioned that section 24 A of the Act indicated that the provisions of Chapter IV A or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained elsewhere in the Act or in any other law for the time being in force or in any contract (whether express or implied), custom or usage to the contrary.
The whole purpose behind section 24 A or section 14 A of the Delhi Rent Con trol, 1958 which are in pari materia is that when a landlord or a person is in occupation of a government accommodation and has to leave that accommodation and yet he has residen tial building in the area in his own name or in the name of any member of his family, then such a person or landlord will have a right accrued to him to recover immediate pos session of the building let out by him.
The rationale behind these provisions or similar provisions is that when a gov ernment servant lets out his house and is without residen tial premises then if he is the owner of any residential building either in his name or in the name of any member of his family then he has a fight to ask for immediate recovery of the said residential building.
It is an urgency provision to help the government servant to have residential accommo dation vacated if he is obliged to vacate his governmental residential accommodation.
The proviso to section 24 B deals with the situation where the landlord has more than one dwelling house, he will exercise a choice in respect of one.
This is not the situation in the instant case.
But it may be noted that sub section (1) of section 24 B uses the expres sion 'if the landlord owns residential building ' and the proviso uses the expression 'dwelling houses '.
Our attention was drawn to the definition of 'building ' and 'dwelling house ' appearing in some Acts.
In the Act in question, however, there is no definition provided, except that 'building ' is defined in clause (i) to section 3 which is not relevant for our present purpose.
It is therefore necessary to 421 determine what kind of a residential building or dwelling house must a landlord possess to be entitled to the urgency procedure of section 24 A to 24 C of the Act to recover immediate possession.
In this connection it will be neces sary to examine the type of 'building ' in question in this case.
Counsel for the appellant drew our attention to sec tion 3(i) and he further drew our attention to section 12(4), section 16(1)(b), section 21(1), section 21(1 A) of the Act in aid of the submission that whenever the legisla ture intended to mean part of the building the legislature has said so expressly.
Sarwan Singh & Anr.
vs Kasturi Lal, ; was dealing with the .
Dealing with section 14A of the Delhi Rent Act, this Court observed that section 14A provided that where the landlord who, being in occupation of residential premises allotted to him by the Central Government, was required to vacate such residential accommodation on the ground that he owns residential accommodation within the Union Territory, there shall accrue to such a landlord notwithstanding any thing contained in any other law for the time being in force fight to recover immediately possession of the premises.
In view of the facts in the case involved before us, where the landlord, the appellant was in possession of a par1 of the building in question which could be considered in certain circumstances to be a residential unit by itself, the obser vations made in that decision are not relevant for the present purpose.
In this case we are concerned with the question whether the type of accommodation which was in the possession of the landlord would constitute residential building or dwelling unit in order to disentitle him to seek recourse to the urgency procedure of section 24 A of the Act.
In Busching Schmitz Private Ltd. vs P.T. Menghani and Anr., ; section 14A of Delhi.
Rent Control Act,, 1958 came up for consideration.
This Court held in the said decision that section 2(i) of the Delhi Act covered any building or part of the building leased for use, residen tial, commercial or other.
To attract section 14A of that Act the landlord must be in occupation of residential prem ises allotted to him by the Central Government.
He must be required by order of that Government to vacate the said residential accommodation.
Residential premises are not only plots which are let out for residential purposes not do all kinds of structures where humans may manage to dwell are residential.
Use or purpose of the letting is no conclusive test.
Whatever is suitable or adaptable for residential use, even by making some changes.
can be designated residential premises.
We are of the opinion that law should take pragmatic view of the matter and respond to the purpose for which it was made and also take cognizance of the current capabili ties of technology and life style of the community.
It is well settled that the purpose of law provides a good guide to the interpretation of the 422 meaning of the Act.
We agree with the views of Justice Krishna Iyer in Busching Schmitz Private Ltd 's case (supra) that legislative futility is to be ruled out so long as interpretative possibility permits.
Residentiality depends for its sense on the context and purpose of the statute of the project promoted.
Our attention was drawn to the decision of the learned single judge of the Delhi High Court in Smt.
V.L. Kashyap vs R.P. Puri (Delhi), 1977 (1) Rent Control Reporter Vol.
9 page 449.
The decision was dealing with section 14A of the Delhi Rent Control Act, 1958 which is more or less similar to section 24 A to 24 C of the Act under consideration.
The learned judge observed that in respect of exercise of fight under section 14A of the Delhi Act, an important proviso had been inserted.
It was with the effect that fight of eviction under section 14A of the Delhi Act was confined only to one dwelling house and the landlord has no right to recover possession of more than one dwelling house in exercise of section 14A of the Delhi Act.
Reference has to be made to another decision under the Delhi Rent Control Act by a learned single judge of the Delhi High Court in S.S. Makhij ani vs V.K. dotwani, 1977 Rajdhani Law Reporter 207.
There the learned judge referred to another decision and expressed concurrence with the said decision where it was held that in order to determine whether two pans of a building consist of one or more dwelling houses, the tests to be applied were thus: (1)consider the building and see whether it constitut ed a whole house or a part of the house; (2)if one part was reasonably needed for convenient and comfortable occupation and enjoyment of the other part of the building then both the parts of the building constituted one dwelling house within the meaning of proviso to section 14A of Delhi Act.
To arrive at this finding, the learned judge observed that the relevant factors to be taken into consideration were (a)the situation; (b)entrance; (c)the Municipal Number; (d) the nature of the construction; (e) inter communication between the two parts; (f)completeness and independence of each unit; and (g) other relevant material circumstances.
None of these taken singly was decisive but the cumulative effect should be considered.
We are of the opinion that the tests indicated above provide workable guide.
Stroud in his "Judicial Dictionary" Vol. 2 at page 858 (4th Edition) noted that 'dwelling house ' is obviously a house with the super added requirement that it is dwelt in or the dwellers in which are absent only temporarily, having animus revertendi.
In this connection reference may be made to the meaning of 'dwelling house ' in Corpus Juris Secundum Vol, 28 pages 604 605 where dwelling place is mentioned.
See also in this connection 'dwelling ' or 'dwelling house ' where it was mentioned that the term was not free from ambiguity, multi ple meanings and many definitions have been given.
The meaning must suit the purpose and 423 the idea behind the statute in question in a particular case.
For the meaning of 'dwelling house ' it may be instruc tive to refer to the Words and Phrases Legally Defined Second Edition, Volume2 page 127 wherein it has been men tioned, inter alia, that 'dwelling House ' meant a building used or constructed or adapted to be used wholly or princi pally for human habitation and 'dwelling house ' included any part of a house where that part was occupied separately as a dwelling house.
Black 's Law Dictionary 1979 Edn.
(Fifth Edition) page 454 defines 'Dwelling ' as the house or other structure in which a person or persons live.
Narain Khamman vs Parduman Kumar Jain, ; , was dealing with section 14A of the Delhi Rent Control Act, 1958 which is more or less similar to the section involved in the present appeal.
At page 1032 of the report the position has been discussed.
There it was observed that if a person had, however, other premises which he owned either in his own name or in the name of his wife or depend ent child, which were available to him for residential accommodation or into which he had already moved in, he could not maintain an application under section 14A of the Delhi Rent Control Act.
We have considered the maps at Annexure 4 as well as at page 108 of the Paper Book.
It appears that there is a staircase in the front which leads to the first floor and one need not go to the ground floor.
There are two latrines in ground floor.
There is,; however, a common passage and in Order to come down to that passage, one has to use another staircase which is a common staircase.
In this context the question is whether the premises in question could be sepa rately used.
In our opinion, the High Court in the facts of this case was not in error in holding that the two pans could be separately enjoyed.
After 1962 the mother of the appellant resided in the portion in the occupation of the landlord now used separate ly and independently and the same is in occupation of the appellant and at that time when the mother of the appellant was alive the appellant used to occupy the said portion.
In our opinion the conduct of the parties is relevant in con sidering whether parts or portions of a building could be a dwelling house.
It may also be mentioned that after the death of the mother of the appellant the portion was sepa rately let out and a tenant used to occupy the said portion separately.
Here in the instant case, Shri Melhrotra, coun sel for the appellant however, stressed that in order to be a dwelling house or residential accommodation, it must be capable of being separately enjoyed and separately locked up.
, is true that without that facility, the concept of safe and separate dwelling gets hampered.
Yet in view of the fact that premises can be enjoyed with common facilities for dwelling purposes would constitute a separate and independ ent dwelling houses.
It has to be borne 424 in mind that in this case the issue is not whether the premises is sufficiently comfortable or whether the portion in question was sufficiently comfortable for dwelling or residence of the appellant or a party but the question is whether the house or the portion can be separately consid ered to be dwelling.
If the portion in the occupation of the appellant could not be separately dwelled in by the appel lant, it was only then that the extra ordinary provisions of section 24A, 24 B and 24 C could be resorted to.
Otherwise the owner or the landlord is entitled to take recourse to other provisions of Rent Act contending that the premises in question is reasonably required bona fide for the landlord 's use but in the situation like the present the landlord was not entitled to take recourse to the urgency provisions in section 24 A, 24 B and 24 C of the Act.
In our opinion to be the dwelling house or residential accommodation it must be capable of being separately enjoyed and whether or not the premises in question can be so enjoyed does not depend merely because that a portion cannot be locked up independ ently or separately.
In that view of the matter, having regard to the nature of the user, we are of the opinion that the High Court was right.
Therefore while we affirm the decision of the High Court, in terms of the observations made by this Court in Busching Schmitz Private Ltd. vs P.T. Menghani and Anr., (supra), we direct that the appellant if he so wants or desires can make arrangements for separation of the two units and to this the respondent tenant would not be enti tled to take any objection.
This, however, will not prevent the appellant to seek eviction by other provisions of the Act or by any other appropriate legal proceeding if he is otherwise entitled to.
In the premises this appeal fails with the aforesaid observations.
In the facts and in the circumstances of this case, the parties will pay and bear their own costs.
M.L.A. Appeal dismissed.

summary/full:
The U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act of 1972 was amended in 1976 and Chapter IV A was added.
Section 24A, section 24B and section 24C are contained in the said Chapter.
They provide for summary trim of eviction petitions in certain circumstances.
By a Notification dated 17th February, ' 1982 issued under s.3 of the Cantonments (Extension of Rent Control Laws) Act of 1957, the Government extended to all the cantonments in the State of Uttar Pra desh the provisions of the Rent Act.
The appellant a government servant, was in occupation of the government accommodation at Meerut.
He was also owner of a house situated in the cantonment area in Meerut.
The house had a ground floor and a first floor with common bathroom and latrine situated on the ground floor.
It had also a common courtyard and a common entrance.
The ground floor of the house was in his possession while the first floor had been let out to the respondent tenant.
Pursuant to a notice received by the appellant landlord to vacate the government quarter, he filed an eviction petition against the respondent tenant in respect of the first floor of the premises under section 24 C of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 on 14th December, 1979.
The respondent tenant contested the application on the ground that the appellant landlord had two residential houses one in which he was living and the other in which the respondent tenant was living and since the appellant landlord was in possession of a resi dential accommodation, he had no right to get another resi dential accommodation vacated from the tenant under the provisions of section 24B or 24C of the said Act.
The Delegated Authority 412 allowed the petition by its order dated 17th August, 1981 and its order was confirmed in revision by the Additional District Judge.
Aggrieved by the order of the Additional District Judge, the respondent tenant moved the High Court under Article 226 of the Constitution.
It was contended by the respondent tenant before the High Court that (i) Chapter IV A had been applied to the Cantonment areas on a subsequent date, i.e. 27th February, 1982, the Act being not applicable to the accommodation in question in November, 1979 when the appli cation under s.24B of the Act was filed by the respondent and as such the same was liable to be dismissed; and (ii) that as the appellant landlord was living in the ground floor of the said house, petition under s.24B was not main tainable.
The High Court upheld the second contention of the respondent tenant and set aside the order of eviction with out deciding the question as to whether the Act would apply to buildings constructed and situated within the cantonment limit.
Dismissing the appeal, this Court, HELD: 1(i) The whole purpose behind s.24A or s.14A of the Delhi Rent Control Act, 1958 which are in pari materia is that when a landlord or a person who is in occupation of a government accommodation and has to leave that accommoda tion and yet he has residential building in the area in his own name or in the name of any member of his family, then such a person or landlord will have a right accrued to him to recover immediate possession of the building let out by him.
The rationale behind these provisions or similar provi sions is that when a government servant lets out his house and is without residential premises then if he is the owner of any residential building either in his name or in the name of any member of his family then he has a right to ask for immediate recovery of the said residential building.
It is an urgency provision to help the government servant to have residential accommodation vacated if he is obliged to vacate his governmental residential accommodation.
The proviso to s.24B deals with the situation where the landlord has more than one dwelling house, he will exercise a choice in respect of one.
[420 E F] 1(ii) Subs.
(1) of s.24B uses the expression "if the landlord owns residential building" and the proviso uses the expression "dwelling houses".
In the Act in question, howev er, there is no definition provided except that 'building ' is defined in clause (i) to section 3 which is not relevant for the present purpose.
It is therefore necessary to determine what kind of a residential building or dwelling house must a landlord possess to be entitled to the urgency procedure of section 24A to 24C of the Act to recover immediate possession.
[420 G, H 421 A] 2(i) Law should take pragmatic view of the matter and re spond to the 413 purpose for which it was made and also take cognizance of the current capabilities of technology and life style of the community.
The purpose of law provides a good guide to the interpretation of the meaning of the Act.
The legislative futility is to be ruled out so long as interpretative possi bility permits.
[421 H 422 A] 2(ii) A dwelling house means a building used or con structed or adapted to be used wholly or principally for human habitation and dwelling house includes any part of a house where that part is occupied separately as a dwelling house.
Therefore, to be a dwelling house or residential accommodation it must be capable of being separately enjoyed and whether or not the premises in question can be so en joyed does not depend merely because that a portion cannot be locked up independently or separately.
Busching Schmitz Private Ltd. vs
P.T. Menghani and Anr., ; , relied upon.
Stroud 's "Judicial Dictionary.
" Vol. 2 at page 858 (4th Edition); Corpus Juris Secundum Vol.
28 pages 604 605, Words and Phrases legally defined, 2nd Edition, Vol.
2 page 127 and Black 's Law Dictionary 1979, 5th Edition page 454, referred to.
In order to determine whether two parts of a building consist of one or more dwelling houses, the tests to be applied are; (i) consider the building and see whether it constitutes a whole house or a part of the house; (ii) if one part is reasonably needed for convenient and comfortable occupation and enjoyment of the other part of the building then both the parts of the building constitute one dwelling house and to arrive at this finding the relevant factors to be taken in consideration are: (a) the situation; (b) en trance; (c) the Municipal Number; (d) the nature of the construction; (e) inter communication between the two parts; (f) completeness and independence of each unit; and (g) other relevant material circumstances.
None of these taken singly is decisive but the cumulative effect should be considered.
[422 D F] In the instant case, after the death of the mother of the appellant the portion was separately let out and a tenant used to occupy the said portion separately.
There fore, in view of the fact that the premises can be enjoyed with common facilities for dwelling purposes, it would constitute a separate and independent dwelling houses and the High Court in the facts of the case was not in error in holding that the two parts could be separately enjoyed.
If the portion in the occupation of the appellant could not separately dwelled in by the appellant, it was only then that the extraordinary provisions of section 24A, 24B and 24C could be resorted to.
Otherwise the owner or the landlord is entitled.to take recourse to other provisions of the Rent Act contending that the premises in 414 question is reasonably required bona fide for the landlord 's use but in the situation like the present, the landlord was not entitled to take recourse to the urgency provisions in section 24A, 24B and 24C of the Act.
[423 F 424 C] Jai Singh Jairam Tvagi etc '.
vs Mamanchand Ratilal Agarwal and Ors., ; , relied upon.
Sarwan Singh & Anr.
vs Kasturi Lal, ; , inap plicable.
V.L. Kashyap vs R.P. (Delhi), 1977 (1 ) Rent Con trol Reporter Vol.
9 page 449, S.S. Makhijaniv.
V.K. Jotwa ni, 1977 Rajdhani Law Reporter 207, and Narain Khamman vs Parduman Kumar Jain; , , referred to.
The provisions of Chapter IV A of the Act would be applicable.
When the order was, made in this case and the application was filed the building in the cantonment area did not come within the ambit of the Act in question.
When, however, the revisional order was passed by the Additional District Judge, the Act had come into operation and the building in question was within the purview of the operation of the Act.
[419 D F]