judgement:
Appeal No. 1321 of 1966.
Appeal by special leave ,from the judgment and order dated November 15, 1965 of the Punjab High Court in Civil Writ No. 878 of 1964.
Niren De, Attorney General and Naunit Lal, for the appellants.
Hardev Singh and R.N. Sachthey, for the respondents.
The Judgment of the Court was delivered by Grover, J.
This is an appeal by special leave from a judgment of the Punjab High Court dismissing a petition under articles 226 and 227 of the ConStitution which had been filed by the appellant Municipal Committee challenging the taking over by the State of all the schools which were being run by it together with all the buildings in which the schools were functioning and other movable and immovable properties connected with these institutions 378 which belonged to the Committee.
The order of the State for payment of an annual contribution which upto the date of the filing of the writ petition i.e. May 10, 1964 had reached the figure of 53 lakhs was also challenged.
The appellant Committee is a first class.
Municipal Committee and has been in existence from a long time.
It has been managing its local affairs through the elected representatives from the city who are called Municipal Commissioners.
It is constituted and functions under the provisions of the Punjab Municipal Act 1911.
A number of primary schools were being run by the Committee within the municipal limits of the town of Amritsar for which it was getting grant in aid from the Punjab Government.
It was, however, running schools upto the middle and high standards for girls and boys for which all the expenses were incurred by itself without any grant from the Government.
The primary liability, however, for incurring the extra expenditure even in connection with the aided schools was of the Committee.
The Punjab Government took an administrative decision.
to provincialise all the schools run by all local bodies in the State with effect from October 1, 1957.
This information was conveyed by means of a letter dated July 19, 1957 by the Secretary to the Government, Education Department, through the Deputy Commissioners in Jullundur and Ambala Divisions.
At a meeting of the appellant Committee held on July 31, 1957 a resolution was passed that a strong representation be made to the Government against the decision to provincialise the schools run by the local bodies.
On September 26, 1957 the Assistant Director of Schools wrote to the District Inspector that "as all the local body schools are being provincialised with effect from October 1, 1957 the tuition fees etc.
to be realized in such schools after that date should be credited to the Government in the treasury under the head . . " Without enacting any legislation the State took over all the schools run by the local bodies on October 1, 1957.
A memorandum from the Director of Public Instructions, Punjab to the District" Inspector of Schools sent on October 5, 1957 conveyed the following direction: "All the erstwhile Local Body Schools which have been provincialised with effect from the 1st October, 1957 will henceforth be known.
as Government High/ Middle/Primary Schools for Boys or Girls as the case may be".
The Executive Officer of the appellant Committee (appointed under the Punjab Municipal Executive Officers Act 1931) wrote to the Deputy Commissioner, Amritsar on November 21, 1957 that no formal orders had been received from the Government requiring the Committee to give up possession of the schools and it appeared 379 that no procedure had so far been devised in that behalf or for the settlement of terms and conditions on which the buildings, furniture, fittings and other materials were to be transferred.
He pressed for proper steps being taken.
The Secretary to the Government, Punjab, Health and Local Government Department sent a memorandum dated September 10, 1958 to all the Deputy Commissioners saying that the work of proper maintenance of the buildings of the provincialised schools of the local bodies would be entrusted to the Public Works Department, Buildings and Roads.
A letter was addressed by the same authority dated September 30,/October 4, 1958 to the Deputy Commissioners requesting them to supply immediate information showing the contributions actually deposited into the treasuries by the local bodies in respect of the provincialisation of the schools.
This was followed by the memorandum dated December 12, 1958 to the effect that all local bodies "be advised to execute the transfer notes in respect of the school buildings etc.
by their respective Engineering Establishments in favour of the Superintending Engineers concerned".
By means of another memorandum dated December 26, 1958 orders of the Government were conveyed that immediate steps should be taken for getting the contribution from local bodies and also for obtaining transfer of buildings and equipment.
Deputy Commissioners were? requested to get the requisite resolutions passed by the local bodies in the prescribed form.
The appellant Committee at its meeting held on January 10, 1959 decided not to pay any contribution for the time being.
It was also resolved that the Committee was not in favour of transferring the proprietary rights in movable and immovable property which was in possession of the schools.
It appears that up till June 17, 1959 the State continued the process of provincialisation of the schools mentioned before without any authority of law.
There was no statutory provision which entitled the State to take over the schools of the local bodies including the buildings in which the schools were being run as.
also furniture etc.
which belonged to the local bodies.
Moreover the extraordinary step of demanding annual contribution was also taken without any sanction or authority of law.
The appellant Committee which is one of the biggest Committees in the State seems to have resisted the attempt on the part of the Government to take over the schools and acquire or requisition its properties in the manner in which it was done.
Legislation was for the first time enacted in the shape of the Punjab Local Authorities (Aided Schools) Act 1959, (Act No. XXII of 1959), hereinafter called the Act.
It received the assent of the President on June 9, 1959.
According to the preamble the Act was enacted to provide for the management and control of local authorities ' schools receiving grants in aid from the.
State of Punjab.
By a deeming provision 380 the Act was to come into force with effect from October 1, 1957.
Section 2 gave the definition of "aided schools", "local authority".
and "school".
"School" has been defined to include land, buildings, play grounds and hostels of the school and the movable property such as furniture, books, apparatus, maps and equipment pertaining to the school.
The following provisions of the Act as amended may be reproduced: section 3 "Power of local authorities to transfer management and control of aided schools to State Government.
(1) A local authority may pass a resolution to transfer the management and control of aided school to the State Government and communicate the same to the State Government.
(2) On receiving such a resolution, the State Government may direct that the aided schools shall be taken over under its management and control and thereafter all rights and interests including the right of maintenance, management and control shall be transferred to and vest in the State Government and the rights and interests of the local authority in respect of such schools shall cease.
" section 4 "Power to withdraw grant in aid.
The State Government may withdraw the grant in aid from any local authority in respect of aided schools if the resolution mentioned in section 3, has not been passed and communicated to the State Government within a period of three months from the date on which this Act is published in the Official Gazette.
" section 5 "Power to take over aided schools where local authority neglects to perform duty. (1) Whenever the State Government is satisfied that a local authority has neglected to perform its duties in respect of aided schools or that it is necessary in public interest to take over their management for a period not exceeding ten years, it may after giving the local authority a reasonable opportunity for showing cause against the proposed action, make an order to take over the management: Provided that in cases of emergency, where the State Government is satisfied that such a course is necessary in the interests of the students, it may, without giving such notice, take over the management of such schools after publication _of a notification to that effect in the.
Official Gazette." : (2) & (3) . . . . . 381 section 6 "Amendment of Punjab Acts No. III of 1911 and No. XX of 1883.
Where a local authority has passed a resolution under section 3 or the State Government has taken over management of aided schools of a local authority under section 5, the Punjab Municipal Act, 1911, and the Punjab District Boards Act, 1883, shall be deemed to have been amended in the manner specified in the Schedule appended to this Act with effect from the 1st October, 1957.
" Section 52(1) of the Punjab Municipal Act relates to the setting apart of the municipal funds and apply the same for different purposes as mentioned in clauses (a) to (f).
By means of the Schedule to the Act after clause (f) of sub section
(1), cl.
(g) was added which is in the following terms: "(g) seventhly, such sum to be paid annually by the committee to the State Government by way of contribution as is equivalent to (i) the total provision made in the budget for the year 1957 58 under the main head 'Education ' excluding educational grants and the provision made for 'original works ' relating to schools; and (ii) a sum representing one per centum of the total income from its own resources for the year 1957 58, in lieu of the deductions made for 'original works ' made under clause (i): Provided that in respect of the financial year 1957 58 the committee shall make a payment to the State Government of the sums which have remained unexpended on 31st March, 1958, out of the provisions under the head 'Education ' in the budget of 1957 58".
Section 59 of the Punjab Municipal Act provides that the Committee may with the sanction of the State Government transfer to the Government any property vesting in the Committee under section 56 or section 57 but not so as to affect any trusts or public rights subject to which the property is held.
A proviso was added to the section by the Schedule which was as follows : "Provided that where a committee has passed a resolution under section 3 of the Punjab Local Authorities (Aided Schools) Act, 1959, or the State Government has taken over the management of aided schools of a committee under section 5 of that Act, all rights and interests in the establishment, maintenance and management of the aforesaid schools immediately before the Ist October 1957, including all interests in the lands, 382 buildings, play grounds, hostels of the said schools as also in the movable properties like furniture, books, apparatus, maps and equipment pertaining thereto shall be deemed to have been transferred to the State Government on that date, and all unspent balances in respect of grants and contributions received for the maintenance and promotion of these schools shall be deemed to have been surrendered to the State Government." After the promulgation of the above legislation the appellant Committee passed a resolution on February 24, 1960 reiterating the decision taken in the Local Bodies Conference held at Jullundur and its own decision to request the Punjab Government to restore the schools run by the local bodies to them.
At another meeting held on June 9, 1960 the appellant Committee decided not to pass the resolution under section 3 of the Act transferring its schools and property to the State Government.
The Punjab Government, however, issued a notification dated September 26, 1960 saying that the Governor was satisfied that it was necessary in the interests of the students to take over for a period of ten years the management of the schools specified in the schedule and administered by the Municipal Committee, Amritsar, and therefore in exercise of the powers conferred by the proviso to section 5 of the Act the Government took over for a period of ten years the management of the said schools.
The schedule contained the list of 42 such schools.
The question of the payment of the contribution which was being demanded by the Government came up for consideration at a meeting of the appellant Committee on January 3, 1962.
It was decided that the payment be made on the basis of a formal laid down by the State Government in that behalf with effect from October 1, 1957 but that the proprietary rights of the Committee in the school buildings be retained and the use of these buildings free of charge be allowed to the Government for the purpose of running the schools.
At a subsequent meeting held on March 28, 1963, the appellant Committee, however, revised its previous decision in view of a resolution passed in the meeting of the Standing Committee of Urban Local Bodies Conference held on June 21, 1962.
It was decided that the State Government was not entitled to charge contributions from the Municipal Committee.
On April 10, 1964 the Deputy Commissioner, Amritsar, made an order in exercise of the powers vested in him under section 234(1) of the Punjab Municipal Act requiring the appellant Committee to pay an amount of Rs. 53,66,146/ on account of contribution for the maintenance of the provincialised schools for the period 1957 58 to 1963 64 failing which realization was to be made under sub section
(2) of that section.
Thereupon the petition under articles 226 and 227 of the Constitution was filed by the appellant Committee in which apart from other matters the validity and constitutionality of the Act were challenged.
In the 383 return filed on behalf of the State reliance was placed on the pro visions of the Act, the resolution passed by the Committee itself on.
January 3, 1962 agreeing to pay the contribution and allow the use of school buildings to the Government free of charge and the notification which had been issued under section 5 of the Act on September 26, 1960 whereby the management of the schools of the: Committee had been taken over for a period of 10 years.
The High Court was of the view that since the Government had taken over the control and management of the aided schools it was considered necessary that the property in possession of these institutions should also be taken over and managed for a limited period.
of 10 years.
Since no compensation was being paid for what may be called compulsory acquisition the legislation could be struck down as being in contravention of article 31(2) of the Constitution.
In the present case, however, the management of the property in possession of the schools was being taken over for a period of 10 years in the public interest by virtue of the provisions of article 31A(1)(b), and the contravention of article 31(2) was of no consequence.
The argument raised on behalf of the State that the resolution of the appellant Committee dated January 3, 1962 consenting to the payment of the contribution with effect from October 1, 1957 had been passed m terms of section 3 of the Act was refuted.
As regards the notification issued on September 26, 1960 under the Act the High Court was of the opinion that although it did not contain any provision for retrospective operation it should be considered that it had retroactive effect since the Act itself had been enforced from October 1, 1957.
It was conceded before the High ' Court that the notification did not apply to.
those schools which did not receive any aid from the Government.
The learned Attorney General for the appellant Committee, raised the following main contentions: (1) The material provisions of the Act were ultra vires article 31 (2) of the Constitution (2) The taking over of movable and immovable property of the Committee could not possibly fail within article 31A(1)(b) and such action was in direct contravention of article 31(2).
(3) The notification dated September 26, 1960 could not have been issued under the proviso to section 5 because there was no question of any emergency nor such an emergency has been pleaded or proved by the State.
(4) The said notification could not and did not validate the action taken prior to the date when it was issued nor section 6 of the Act could be attracted which effected amendments of the provisions of the Punjab Municipal Act as per the Schedule.
(5) The annual contributions which were being demanded from the appellant Committee were wholly illegal and could not be levied on account of legislative incompetence.
Now the scheme of the Act is that it is initially left to the local.
authority to pass a resolution to transfer the management and con 384 trol of aided schools to the State Government.
In order to employ compulsive persuasion the State Government can withdraw the grant in aid from any local authority in respect of aided schools if such authority does not pass a resolution in terms of section 3 within a period of three months from the date of enactment of the Act (vide section 4).
Section 5 gives the power to the State Government to take over aided schools where the local authority neglects to perform the duty but that can be done only after the local authority has been given a reasonable opportunity for showing cause against the proposed action and also if it is considered necessary in public interest to take over the management for a period not exceeding 10 years.
The proviso, however, arms the State Government with powers in case of emergency and in the interests of students to take over the management straightaway after publication of a notification to that effect.
The amendments which are effected in sections 52 and 59 of the Punjab.
Municipal Act enable the State Government to get an annual contribution from the local bodies and further to vest in the State not only the management of the school taken over but also all interests in the lands, buildings etc.
of the school along with the movable properties pertaining thereto which shall be deemed to have been transferred to the State.
There is no provision whatsoever for an automatic retransfer of these properties after a lapse of a period of 10 years for which the taking over of the schools can be effective.
This means that once action is taken under section 5 which can be done pursuant to a resolution passed under section 3 or after giving a notice to the local authority or without giving such notice in case of emergency all the properties movable and immovable belonging to the local body pertaining to the schools.
taken over become the property of the State.
This is nothing short of compulsory acquisition within the meaning of article 31(2) of the Constitution.
Under that Article no ' property can be so acquired or requisitioned unless it is under an authority of law which either fixes the amount of compensation or specifies the principles on which and the manner in which the compensation is to be determined and given.
There is No. provision in the Act or in the amendment of section 59 of the Punjab Municipal Act made by the Act for payment of any compensation.
On the assumption that taking over of the property for a period of 10 years would be an act of requisitioning, the requirements of article 31(2) must be satisfied to sustain the validity of the law.
The High Court entertained no doubt that under that Article property could not b.e acquired or requisitioned without complying with its provisions but it fell into an error in applying article 31(A)(1)(b) to the provisions under consideration.
Under the above Article.
it is only the management of any property which can be taken over for a limited period either in the public interest or in order to secure its proper management.
Ac 385 cording to the High Court the Committee was indisputably the: owner of the property which was being taken over by the State: but P.C. Pandit J, who delivered the judgment of the division bench proceeded to say : "In the present case, the management of the property in possession of the schools was being taken over for ten years in public interest and, as such, by virtue of the provisions of Article 31 A ( 1 )(b ), the contravention of article 31(2) was of No. consequence.
Learned Counsel for the petitioner submits that article 31A(1)(b) does not apply to the facts of the instant case, because here the management and control of an institution namely, the school, was being taken over by the Government, whereas this Article applied where the management of any property was being taken over by the Government for a limited period in the public interest.
This argument is without any merit, because the property may belong to anybody, whether it be an individual, or a Committee or an industrial or commercial undertaking or any kind of other institution.
In all these cases, where the management of the property is taken over for a limited period in public interest, this Article would be attracted and the legislation would not be hit by the provisions of Article 31 of the Constitution".
Clause (b) in article 31A(1) came to be inserted for the first time by the Constitution (Fourth Amendment) Act 1955.
It was intended apparently to counteract the effect of the decisions in the two Sholapur cases, Charanjit Lal Chowdhuri vs The Union of India & Ors.(1) and Dwarkadas Shrinivas of Bombay vs The Sholapur Spinning & Weaving Co. Ltd., & Ors.(2).
The purpose.
therefore, of inserting this provision was to remove any legislation from the pate of attack on the ground of contravention not only of article 3 but also of articles 14 and 19.
Although management and control of the aided schools under the impugned legislation could be taken over for a limited period in the public interest it is not possible to understand how even the proprietary interests in the movable and immovable property pertaining to the schools, which have been found to belong to the Committee, could have been acquired under clause (b) of article 31 A(1).
With all deference to the High Court we have not been able to.
properly appreciate the decision on this point given in the paragraph extracted above.
The High Court did not consider the true import and effect of the amendment made in section 59 of the Punjab Municipal Act by virtue of which all rights and interests in the lands, buildings, playgrounds, hostels of the schools as also in the movable property like furniture, books, apparatus, maps and equipment pertaining thereto (1) ; (2) [1954] S.C.R.476.
386 shall be deemed to have been transferred to the State Government with effect from October 1, 1957.
We are, therefore, unable to uphold the view which leads to the result that property can be acquired while taking over management and control under article 3l A (1)(b) in complete negation and contravention of article 31(2) of the Constitution.
The next question is whether there was due compliance with the provisions of the proviso to section 5 of the Act.
In the notification which was issued on September 26, 1960 there is no indication that the management of the schools was being taken over because of certain emergency having arisen.
If any emergency existed it was the creation of the government itself which had proceeded to take over management and control of the aided schools along with the properties pertaining to them without any authority of law prior to the enactment of the Act.
That was the reason why the Act had to be given retrospective operation.
According to the High Court the moment the State Government was satisfied that it was in the interest of the students to take over the management of the schools it became a case of emergency.
It also relied on the principle that it was not necessary to mention the actual emergency which had arisen in the notification itself or to make a recital that an emergency had arisen.
The State could not show by placing material before the court that it was a case of emergency justifying the action under the proviso to section 5 because no foundation in this behalf had been laid in the writ petition.
The third point pressed by the learned Attorney General, therefore, cannot be acceded to.
The fourth point of the.
learned Attorney General may now be considered.
There was some argument before the High Court and the same has been repeated before us on behalf of the State that the question of validity of the notification and the action taken thereunder did not arise because.
the Committee itself had passed a resolution on January 3, 1962 which should be regarded as having been passed under the provisions ' of section 3 transferring the management and control of the schools to the Government and agreeing to pay the contribution with effect from October 1, 1957.
The High Court has rightly pointed out that a reading of the resolution would show that the Committee agreed to the payment of contribution with effect from October 1, 1957 in accordance with the formula laid down by the State Government.
It was, however, made clear that the proprietary rights of the Committee in the movable and immovable property pertaining to the schools would be retained by it.
The Committee had subsequently passed several resolutions which had the effect of almost rescinding the previous resolution.
The submission on behalf of the State that the resolution dated January 3, 1962 passed by the Committee fell within the first part of section 3 of the Act is wholly devoid of merit and has rightly not been accepted.
387 As regards the notification having retrospective operation we are unable to agree with the High Court that any such effect could be given to it.
There is nothing to indicate in the notification that it was intended to operate retroactively.
The mere fact that the Act in terms was retrospective would not make the notification issued under the proviso to section 5 retrospective in the absence of express words or appropriate language from which retrospectivity would be implied.
All that the notification says is that the Governor of Punjab is taking over for a period of 10 years.
the management of the schools of the Committee.
in exercise of the powers conferred by the proviso to section 5 of the Act.
This clearly means that the management is taken over from the date of the notification and not from any prior date.
It would follow that whatever was done before the date of the notification regarding the assumption of management and vesting of the Committee 's properties was wholly void and illegal.
Under s.6 of the Act it is only after the local authority has passed a resolution under s.3 or the State Government has taken over management of the aided schools under s.5 that sections 52 and 59 of the Punjab Municipal Act would be deemed to have been amended in the manner specified in the schedule with effect from October 1, 1957 or from the date aided schools are taken over as the case may be.
If the notification dated September 26, 1960 could not be given retrospective operation the amendments in the aforesaid provisions of the Punjab Municipal Act would be effective only after the date of the notification and not for the prior period.
Thus even on the assumption that the provisions of the Act are valid the State could not ask for any contribution from the committee for the period prior to the date of the notification.
But, the addition of cl.(g) after cl.(f) in sub s.(1) of s.52 of the Punjab Municipal Act is void and wholly ineffective for the reasons which will be presently noticed.
Chapter IV of the Punjab Municipal Act relates to municipal fund and property.
Section 51 deals with the constitution of the municipal fund.
Section 52 provides for the application of the fund.
Before the amendment made by the Act sub s.(1) had six clauses containing the provisions for the application of the fund.
It is noteworthy that although the State Government has been empowered to require the Committee to make contributions but in each case that is confined to an eventuality or a situation where certain cost has been incurred by the Government which had to be defrayed by the Committee, e.g., clauses (b), (d) and (f).
According to clause (e), however, the Committee may be required by the State Government to contribute towards the maintenance of pauper lunatics or lepers sent from any place in the State to mental hospitals or public asylums 388 whether in or outside the State.
Sub section (2) says that subject to the charges specified in sub section
(1 ) the municipal fund shall be applicable to the payment of the matters set out in clause (a) to (1 ).
Clause (c) is in these terms: "the constitution; establishment and maintenance of schools, hospitals and dispensaries, and other institutions for the promotion of education or for the benefit of the public health . . . . " In the context of s.52 it is difficult to envisage that the municipal fund of a particular Committee could be diverted to such institutions which had no connection with the Committee.
We are, however, not called upon to pronounce upon the true scope, ambit and validity of all the provisions in section 52.
Clause (g) which has now been inserted by means of section 6 of the Act has to be tested by the guarantees in Part Ill of the Constitution.
By asking the Committee to make contributions from its funds to the cost of the schools which have been taken over by the State part of its funds are being compulsorily acquired by the State.
This is something which could not be done except in accordance with the provisions contained in article 31(2) of the Constitution.
In Writ Petition No. 295 of 1968, Municipal Committee, Amritsar vs State of Punjab(1) in which the provisions of the Punjab Cattle Fairs (Regulation) Act 1968 came up for examination, it was laid down by this Court that the State was incompetent to declare land belonging to the Municipal Committee as falling within the fair area and to take possession of that land in exercise of the power conferred by the Act without providing for payment of compensation guaranteed by article 31(2).
Clause (g), therefore, which has been inserted in section 52 of the Punjab Municipal Act is void and illegal as it contravenes article 31 (2) of the Constitution.
It may be mentioned that the learned Attorney General has also pointed out that the State legislature did not have the competence, under any of the entries in List II of the Seventh Schedule, to enact legislation of the nature embodied in clause (g) which was inserted in section 52 relating to compulsory contribution by the Committee to the State Government.
Counsel for the State has sought to rely on entries 5 and 1 l in List II which relate to local government and education.
It is unnecessary to decide this matter since it has been held by us that the impugned provisions with regard to contribution contravene Art, 31 (2) of the Constitution.
We may now determine the provisions of the Act which are unconstitutional and invalid.
There is nothing in sections 3(1), 4 and 5 of the Act per se which would bring them into conflict with the constitutional provisions, particularly, in view of article 31 A ( 1 )(b) (1) ; 389 under which the management of the schools could be taken over by the State for a limited period in public interest.
But the difficulty arises about sections 3(2) and 6 which have to be read together.
When the State Government makes a direction under section 3(2) that the aided schools shall be taken over.
all rights and interests of the Committee including the right of maintenance, management and control shall be transferred to and vest in the State Government.
This essentially has reference to proprietary and ownership rights apart from the rights pertaining to management and control.
Section 6 comes into operation as soon as a local authority has passed a resolution under section 3 or the State Government has taken over management under section 5.
Then the provisions relating to acquisition of property of the Committee as also of its funds by way of contribution come immediately into operation by virtue of the amendments effected in sections 52(1) and 59 of the Punjab Municipal Act.
These provisions are clearly unconstitutional as they contravene article 31 ( 2 ) of the Constitution.
In the result the appeal is allowed with costs and the judgment of the High Court is set aside.
It is declared that section 3(2) of the Act and the amendments which would become operative under section 6 in respect of sections 52(1) and 59 of the Punjab Municipal Act are void and unconstitutional.
The orders by which the movable and immovable property of the Committee have been transferred to the State are hereby quashed and such transfers are declared to be wholly void.
The respondents are further directed not to recover any contribution in accordance with clause (g) of section 52 of the Punjab Municipal Act as also the sum of Rs. 53 lakhs mentioned in the order of the.
Deputy Commissioner dated April 10, 1964.
from the appellants Committee.
Appropriate writs and directions.
shall issue in this behalf.
V.P.S. Appeal allowed.

summary/full:
The appellant Committee was constituted under the Punjab Municipal Act 1911, and was running a number of municipal schools, for some of which it was getting grant in aid from the respondent State.
The respondent took an administrative decision, without any statutory authority, to provincialise all the schools run by the local bodies in the State with effect from October 1, 1957, and till June 1959, various steps in the process of provincialisation were taken.
In June 1959.
the Punjab Local Authorities (Aided Schools) Act, 1959.
was passed after obtaining the assent of the President.
The Act was deemed to have come into force with effect from October 1, 1957.
The scheme of the Act is that it is initially left to the local authority to pass a resolution to transfer the management and control of aided schools to the State Government.
In order to employ compulsive persuasion the State Government can withdraw the grant in aid in respect of the aided schools if such authority does not pass a resolution in terms of .s. 3 within a period of 3 months from the date of the enactment of the statute.
Section 5 gives power to the State Government to take over aided schools where the local authority neglects to perform its duty or if it is considered necessary in public interest to take over the management for a period not exceeding ten years, but only after giving the local authority a reasonable opportunity for showing cause.
The proviso to the section arms the State Government with powers, in case of emergency and in the interests of students, to take over the management straight away after publication of a notification to that effect.
There is no provision, however, for an automatic retransfer of the property after lapse of the period o.f 10 years.
Section 6 introduces amendments in sections 52 and 59 of the Punjab Municipal Act.
Clause (g), introduced in section 52(1), enables the State Government to get an annual contribution from the local bodies, and the amendments to section 59, vest in the State not only the management of the schools taken over but also the interests in the movable and immovable properties pertaining thereto.
As the appellant decided no.t to.
pass the resolution under section 3 the respondent issued a notification on September 26, 1960.
taking over for a period of 10 year 's, the management of the aided schools specified in the schedule tO the notification.
On the question of payment of the contribution it was resolved on January 3, 1962, that the payment be made with effect from October 1, 1957, while retaining the proprietary rights in the schools; but the appellant subsequently passed several resolutions practically rescinding this resolution with respect to the payment of any 376 contribution.
On April 10, 1964, the appellant was required by order to pay about Rs. 53 lakhs on account of the contribution for the maintenance of the provincialised schools for the period 1957 58 to 1963 64.
Thereupon, the appellant filed a petition under articles 226 and 227 in the High Court, challenging the orders and the constitutional validity of the Act.
The petition was dismissed.
In appeal to this Court it was contended: (1 ) The taking over of the movable and immovable property of the appellant did not fall within article 31A(1)(b) and the action was in direct contravention of article 31(2); (2) The notification dated September 26, 1960, was not protected by the proviso to section 5, because, there was no question of any emergency, nor was such emergency pleaded or proved by the respondent; (3) The notification could not and did not validate the action prior to the date when it was issued; (4) Section 6 of the Act which effected amendments of the provisions of the Punjab Municipal Act could not be attracted; and (5) Section 3(2) and the amendments which would become operative under section 6 in respect of sections 52(1) and 59 of the Punjab Municipal Act, are void and unconstitutional.
HELD: (1) Under article 31A(1)(b) it is only the management and control of the aided schools, that could be taken over for a limited period in the public interest or in order to secure their proper management, but proprietary interests in movable and immovable properties pertaining to the schools and belonging to the appellant could not be acquired.
In the present case in view of the terms of the resolution of January 3, 1962 and the subsequent resolutions of the appellant it could not be said that the resolution fell within the first part of section 3 and that action was taken by the State pursuant to such resolution.
The action was taken by the respondent only under section 5 and when once action was so.
taken all the properties, movable and immovable, belonging to the local body pertaining to the schools taken over, became the property of the State, by virtue of the amendments made in section 59 of the Punjab Municipal Act.
When the proprietary interest in the movable and immovable property pertaining to the schools and belonging to the Committee is thus acquired, the action is not protected by article 31A(1)(b) as it is nothing short of compulsory acquisition within the meaning of article 31(2) of the Constitution and is in violation of that .Article when there is no provision for payment of compensation.
[386; A F; 387 F G] (2) In the notification there was no indication that the management of the schools was being taken over because any emergency existed.
The State could not show by placing material before the court that it was a case of emergency justifying the action under the proviso, to section 5.
when no foundation in that behalf had been laid, in the writ petition.
[388 B C; D E] (3) The mere fact that the Act in terms was retrospective would not make the notification issued under the proviso.
to section 5, retrospective, in the absence of express words or appropriate language from which retroactivity would be implied.
The notification only meant that the management was taken over from the date of the notification and not from any prior date.
Therefore.
whatever was done before the date of the notification regarding the assumption of management and vesting of the Committee 's property was void and illegal.
[389 A C] (4) Under section 6 of the Act it is only after the local authority has passed a resolution under section 3 or the State Government has taken over management of the aided schools under section 5, that sections 52 and 59 of the ' Punjab Municipal Act would be deemed to have been amended in the 377 manner specified in the Schedule with effect from October 1, 1957.
If the notification in the present case, could.
not be given retrospective operation, the amendments in the Punjab Municipal Act would be effective only after the date of the notification and not for the prior period.
Thus, even on the assumption that the provisions of the Act are valid the State could not ask for any contribution from the Committee for the period prior to the date of the notification.
[389 D F] (5) By asking the Committee to make contributions from its funds under the newly introduced el.
g in section 52(1), to the cost of the schools which have been taken over by the State, part of its funds are being compulsorily acquired by the State, which could not be done except in accordance with the provisions contained in article 31(2).
[390 C D, E F] When the State Government makes a direction under section 3(2) that the aided schools shall be taken over, the proprietary and ownership rights of the Committee also vest in the State Government.
Further, section 6 comes into operation as soon as a local authority has passed a resolution under section 3 or the State Government has taken over management under section 5, and the provisions relating to acquisition of property of the Committee as also of its funds by way of contribution, come immediately into operation by virtue of the amendments effected in sections 52(1) and 59 of the Punjab Municipal Act.
[391 A D] Since there is No. provision for compensation in the Aided Schools Act or section 59 of the Municipal Act, section 3(2).of the Aided Schools Act and the amendments in sections 52(1) and 59 of the Punjab Municipal Act are void and unconstitutional.
[391 D] Hence, the order by which, the movable and immovable property of the Committee has been transferred to the State contribution was sought be recovered, and the sum of Rs. 53 lakhs was demanded, is illegal, [391 D E] Municipal Committee, Amritsar vs State o! Punjab; , , followed.


judgement:
iminal Appeals Nos.
145 to 156 of 1968.
Appeals by special leave from the judgment 'and order dated September 6, 1967 of the Kerala High Court in Criminal Appeals Nos. 114 to 124 of 1967.
R.H. Dhebar, Lily Thomas for S.P. Nayar, for the appellant (in all the appeals).
A. section Nambiar, for the respondent (in all the appeals).
The Judgment of the Court was delivered by Bhargava, J.
These twelve connected appeals arose out of twelve prosecutions instituted by the .appellant, Provident Fund Inspector, Trivandrum, against the respondent, Secretary, N.S.S. Co operative Society, Changanacherry, for offences punishable under the Employees ' Provident Funds Act, 1952 (hereinafter referred to as "the Act") on the ground of contravention of the provisions of the Employees ' Provident Fund Scheme, 1952 (hereinafter referred to as "the Scheme").
The specific charges related to the .failure of the respondent (1 ) to pay to the Employees ' Provident Fund the employees ' and the employer 's 'share of contribution together with administrative charges for the twelve quarters comprised between May, 1961 and February, 1964; (2) to submit the returns in Forms 5 and 10 for the same twelve quarters; (3) to send statements of recoveries of contributions in Form.
12 for the same 12 quarters; and (4) to send the initial return in Form 9 showing the particulars as on 30 4 1961 along with Form 2 in the manner specified in the Scheme.
The pay 483 ment of the employer 's and employees ' contribution to the Provident Fund, and the question of sending the various statements arose in respect of a Press which was purchased by the N.S.S. Co operative Society on the 21st March, 1961 from the Travancore Cochin Central Printing and Publishing Co operative Society, Ltd. According to the appellant, this establishment of the Printing Press had 'been set up in the year 1946 and it continued in existence even subsequently when, in March, 1961, the Press was purchased by the N.S.S. Co operative Society.
Until the purchase by the N.S.S. Co operative Society, the establishment was employing only 9 workmen; but, after the N.S.S. Co operative Society started working the Press, the number of workmen increased beyond 20, so that the Act became applicable to this establishment.
The case was that, since the Act became applicable w.e.f. April; 1961, it was the duty of the respondent to comply with the requirements of the Act and pay the contribution and send the various returns which the respondent failed to do On trial, the Magistrate recorded the finding that the establishment as run by the N.S.S. Co operative Society after 1961 could not be held to be an old establishment set up in the year 1946, had emerged as a new establishment in 1961, and, consequently, for a period of three years from April, 1961, the provisions of the Act would not apply to this establishment because of the provision contained in section 16(1)(b) of the Act.
On this view, the Magistrate acquitted the respondent in all the cases.
The respondent appealed to the High Court of Kerala.
The High Court disagreed with the Magistrate and held that, even though there was change of management, change of workers and change of machinery.
when the N.S.S. Co operative Society purchased the Press in 1961, the business that was carried on was the same as it was at the time of purchase, so that it could not be held that a new establishment had come into existence different from the one which existed before the purchase.
The High Court, however, took the view in law that, under section 16(1)(b) of the Act, an establishment is given exemption for a period of 3 years from the date on which it came within the purview of the Act, treating the establishment as an infant establishment standing in need of protection.
The High Court, therefore, held that this establishment was protected from the applicability of the Act for a period of 3 years from 21st March, 1961 which would cover the period in respect of which prosecutions were launched by the appellant.
On this ground, the High Court upheld the orders of acquittal passed by the Magistrate.
The appellant has now come up in these appeals against this decision of the High Court by special leave granted by this Court.
It is quite clear that on the question of law decided by the High Court in favour of the respondent, that decision cannot be 484 upheld in view of the decision of this Court in R. Ramakrishna Rao vs State of Kerala(1) where it was held that, under section 16(1)(b), in the case of 'a new establishment, the period of five years (laid down by subsequent amendment) is counted forward from the date the establishment is set up, but, in the case of an existing establishment, from the date the establishment "has been" set up In the present case, since the establishment was first set up in the year 1946, the period of exemption for purposes of applying section 16(1)(b) of the Act would run from the date on which the establishment had been set up and could not be counted from April, 1961 when the Act became applicable to this establishment.
In view of that decision of this Court, the acquittal of the respondent on the ground given by the High Court cannot be maintained.
However, on behalf of the respondent, it was argued that, on the evidence in this case, the High Court was not justified in recording the finding that this establishment as set up in the year 1946 continued to exist as it was before, even after the purchase by the N.S.S. Co operative Society in 1961.
It was urged that, on facts, the correct finding that should have been recorded was that the old establishment ceased to exist and an entirely new one was set up in the year 1961.
In support of this plea, we were taken by learned counsel for the parties through the evidence which was tendered during the trial before the Magistrate and, after going through it, we are.
inclined to accept the submission made on behalf of the respondent.
The burden of proving that the old establishment had continued and that a new establishment was not set up in the year 1961 was on the appellant, as the appellant had filed criminal cases for prosecution of the respondent.
The first prosecution witness was the Provident Fund Inspector, Raghunathan, but most of his evidence relates to facts discovered by him and not in his personal knowledge.
It is he who made a report for the prosecution of the respondent and in that report itself he admitted that the strength of the establishment was less than 20 till 16th April, 1961 when it was purchased by the N.S.S. Co operative Society.
Headded that there were only 9 employees 'at the date of purchase of these 9 employees, 6 were reemployed by the purchasers.
Significance attaches to the word "reemployed" which implies that there was no continuity of employment even of those 6 employees.
That witness also admitted that, after the purchase, the Press was removed from its original place and additional machineries were purchased and added to the Press.
According to him, he also received information that compensation due to the workers till the date of sale was disbursed by the previous owner, T.C: Central Co operative Printers and publishers.
He added that the (1)[1968] 2 S.C.R.819.
485 persons working in the Press at the time of his evidence were all persons who had been appointed by the N.S.S. Co operative Society.
Thus, his evidence does not prove that the establishment run by the N.S.S. Co operative Society was the same as the establishment which was being run by the previous owner of the Press.
The owner changed, me machinery changed, the location of the Press was altered, and even the employees were not the same as before.
In fact, none of the employees, according to his evidence, was continued in service.
Th`e only witness on whom reliance could be placed on behalf of the appellant to prove continuity of the business was P.W. 2, Sadasivan Nair, who claimed to be one of the employees in this Press of the previous employer and who stated mat he continued to be employed by the N.S.S. Co operative Society.
His evidence has rightly been criticised on the ground that he is a disgruntled person who lost his service some years later when the press was being run by the N.S.S. Co operative Society.
Further, he stated on oath that the Press was taken over with all its workers which is clearly a wrong statement and is contradicted by P.W. 1, the Provident Fund Inspector himself.
It is also significant that, according to the Provident Fund Inspector, compensation was paid to the previous employees by the previous employer which clearly shows that the previous employees were not continued in service, and that they were paid compensation for termination of their services on transfer of the Press presumably in accordance with the provisions of section 25FF of the Industrial Disputes Act.
The prosecution could have easily produced the accounts of the previous owner to show that there were at least some employees who were continued in service and who were not paid compensation, but no such attempt was made on behalf of the appellant.
Even the sale deed in favour of the N.S.S. Co operative Society has not been put in the paper book before us and its absence is significant in view of the statement made by D.W. 1, one of the Directors of the N.S.S. Co operative Society, who stated that the N.S.S. Co operative Society neither purchased the establishment ' as a going concern, nor did it continue to run the same establishment.
According to D.W. 1.
after the purchase of the Press, there was a closure.for a period.of about 3 months and a new business was started in June or July, 1961 when a new establishment was set up.
The workmen employed by the previous owner were not taken over on their old conditions of service.
Fresh appointments were made and all workers were newly recruited, though, at the time of this recruitment, some of the old employees were also taken in service.
This evidence would clearly show that a new establishment was set up by the N.S.S. Co operative Society after the purchase of the press by it from the previous owner and that there was no continuity of the old establishment.
As we have L2SupCI/70 19 486 said earlier, the appellant could have summoned the accounts of the previous owner to show that these facts alleged by D.W. 1 are not correct.
Even the N.S.S. Co operative Society is maintaining accounts and registers; and no attempt was made on behalf of the prosecution to seize or summon those registers.
It is true that the respondent himself,f, on his own initiative, did not produce those registers in defence but, in a criminal case, such a circumstance cannot justify raising a presumption that the registers would have contradicted the evidence of D.W. 1.
D.W. 1 also stated that there was a specific provision in the sale deed that none of the workers, who were working in the press purchased, were to be taken in service and nobody was, in fact, taken.
This statement could easily have been challenged before us if the saledeed had been included in the Paper:book.
In the absence of the sale deed, which has not been brought to our notice, we see no reason to disbelieve the statement of D.W. 1 and we consider that his evidence is decidedly preferable to that of P.W. 2 whose evidence we have mentioned above.
The only other prosecution witness who need be mentioned is P.W. 3 who also employed by the N.S.S. Co operative Society in this Press after the purchase.
He was, however, not an employee in this press before its purchase by N.S.S. Co operative Society.
He was employed in another press which was also purchased by this Co operative Society, so that his evidence about continuity of his service cannot indicate that this particular establishment was a continuation of the old establishment set up by the previous owner.
On a discussion of the entire evidence and in view of the fact that the burden of proof lay on the appellant, we think that the conclusions of fact which must be accepted are; that, at the time of the purchase, a new owner came in place of the previous owner; the work of the Press was stopped on sale and was restarted after a 'break of about three months; the machinery in the Press was also, altered; the persons employed previously were not continued in service, while a fresh recruitment of employees took place amongst whom Only six happened to be previous employees; and compensation was paid to the workmen 'at the time of the sale by the previous owner.
On these facts, no other conclusion can be drawn, except that the old establishment was completely closed when the transfer of ownership took place and an entirely new establishment was set up three months later, so that, in this case, the benefit of non applicability of the Act under s.16(1) (b) of the Act for a period of three years was available to the respondent from June or July, 1961 when the new establishment was set up.
In this connection, learned counsel appearing for the appellant drew our attention to a few decision, including one of this Court ' to urge that we should not hold that this establishment was newly set up in the year 1961.
The first of these decisions is Lakshmi 487 Rattan Engineering Works vs Regional Provident Fund Commissioner, Punjab, and others(1) in which this Court held that a change in location of an establishment or a change in the line of business would not have the effect that a new establishment has been set up, provided there was continuity of working.
That case cannot apply to the facts as found by us in the present case where there was no continuity of the business and there were the additional factors of termination of services of 'all the workmen and a new establishment being set up by ,fresh recruitment of workmen, in addition to alteration in machinery in the Press.
The decisions in Jamnaclas Agarwalla and Another vs The Regional Provident Fund Commissioner, West Bengal & Others,(2) and Messrs Bharat Board Mills Ltd. vs The Regional Provident Fund Commissioner and Others(3), are also inapplicable to the facts before us in the present case.
A good deal of reliance was placed on a decision of 'a learned single Judge of the Madras High Court in Devi Press vs Regional Provident Fund Commissioner, Madras and Another;(4) but even in that case the facts were different.
One of the prominent facts before the Judge was that the particular business transferred was being run under licences and those licences were also transferred by the seller to the purchaser.
In view of this transfer, the learned Judge held that it was a case of sale of a going concern and there was continuity of business.
Without expressing any opinion as to whether the learned Judge was correct in holding that there was continuity of business in that case, the very fact that he held the establishment not to have been newly set up on the ground that it was a case of a transfer of a going concern distinguishes that case from the case before us.
In the present case, the facts established show that the old business was close and was restarted as a new business after recruiting new workmen.
The principle to be applied in arriving at a decision in such a case appears to us to have been rightly explained in a decision of a learned single Judge of the Madras High Court in Vithaldas Jogannathadas and/Another vs Regional Provident Fund Commissioner and Another(5).
The learned Judge held : "If in a particular case, it appears that the new establishment is not genuinely such, but is only ,an old one formally resuscitated in order to avoid the legal obligation, it is always open to the Court to hold that it is the old establishment which is substantially continuing, and that the liability to contribute must be affixed to the apparently new form also.
But where, in reality, the old establishment has come to an end and there is a new establishment, this establishment is entitled to infancy (1) (2) (3) (4) A.I.R. 1965 Mad.
(5) L2SupCI/70 20 488 protection in its own right, even if it happens by coincidence to have employed a large part of the personnel of the previous establishment.
" This principle, applied to the facts of the present case, can only lead ' to the conclusion that the N.S.S. Co operative Society had set up a new establishment and the provisions of section 16(1)(b) of the Act have to be applied on the basis that the new establishment was set up in June or July, 1961, so that there was no liability tO pay.
Provident Fund contributions or to file the various returns during the period to which the prosecutions related.
The acquittal of the respondent was, therefore, fully justified.
The appeals are dismissed.
G.C Appeals dismissed.

dataset_name: IN-Abs

summary/full:
The respondent cooperative society purchased a Press.
from another cooperative society on 21st March 1961.
The establishment had been set up by the vendor originally in 1946 and at the time of purchase by the respondent only 9 workmen were employed therein.
As the number of workers employed by the respondent went beyond 20 the Employees ' Provident Fund Act, 1952 and the Employees ' Provident Fund Scheme 1952 became applicable to the: respondent 's establishment with effect from April 1961.
For not complying with the provisions of the aforesaid Act and Scheme the Provident Fund Inspector, Trivandrum (appellant herein) launched prosecutions against the respondent.
The specific charges related to the failure, of the respondent (i) to pay to the Employees ' Provident ' Fund the employees ' and the employer 's share of contributions together with administrative charges 'for the twelve quarters comprised between May 1961 and February 1964; (ii) to submit the returns in Forms 5 and 10 for the same twelve quarters; (iii) to send statements of recoveries of contributions in Form 12 for the same quarters; and (iv) to send the; initial return in Form 9 showing the particulars as on 30 4. 1961 along with Form 2 in the manner specified in the SCheme.
On trial the Magistrate recorded the finding that the establishment as run by the respondent after 1961 could not be held to be an old establishment set up in the 1946, it had emerged as a new establishment in 1961, and consequently for a period of three years from April 1961, the provisions of the Act would not apply to.
this establishment because of the provisions.
contained in section 16(1)(b) of the Act.
On this view the respondent was acquitted.
The High Court in appeal did no,t agree with the Magistrate that a new establishment came into being in 1961, but nevertheless upheld the acquittal on the ground that under section 16(1)(b) of the Act an establishment is given exemption for a period of 3 years from the date on which it came within the: purview of the Act.
On appeal to this Court by special leave, HELD.
: (i) In view of the decision of this Court in R. Ramakrishna Rao 's case the finding of the High Court that the exemption under section 16(1)(b) of the Act was available for the first three years from the date when the Act became applicable to an establishment, was wrong [486 A C] R. Ramakrishna Rao vs State of Kerala, ; , applied.
(ii) However the acquittal of the respondent must be upheld.
The burden of proving that the old establishment had continued was on the appellant.
The evidence showed: that, at the time of the purchase a new owner came in place of the previous owner; the work of the Press was stopped on sale and was restarted after a break of about three 482 months; the machinery in the Press was also altered; the persons employed previously were not continued in service, while= a fresh recruitment of employees took place amongst whom only six happened to be previous employees; and compensation was paid to the workmen at the time of the sale.
by the previous owner.
On these facts, no other conclusion could be drawn except that the old establishment was completely closed when the transfer of ownership took place and an entirely new establishment was set up three months ' later, so that in this case the benefit of the Act under section 16(1)(b) of the Act for a period of three years was available to the respondent from June or July 1961 when the new establishment was set up,.
[488 E G] Lakshmi Rattan Engineering Works vs Regional Provident Fund Commissioner, Punjab & Ors.
Jamanadas Agarwalla & Anr.
vs The Regional Provident Fund Commissioner, West Bengal & Ors. , M/s. Bharat Board Mills Ltd. vs The Regional Provident Fund Commissioner & Ors., and Devi Press vs Regional Provident Fund Commissioner, Madras & Anr.
A.I.R. , distinguished.
Vittaldas Jagannathadas & Anr.
vs Regional Provident Fund Conmissioner & Anr. , applied.


judgement:
Appeal No. 1461 of 1969.
Appeal by special leave from the judgment and decree dated January 24, 1969 of the Delhi High Court in S.A.O. No. 203 D of 1966.
B.C. Misra and R.P. Aggarwal, .for the appellant.
Hardev Singh and S.K. Gambhir, for the respondent.
The Judgment of the Court was delivered by Shah, J.
Man Mohan Chawla was since before l958 tenant in certain premises in Delhi belonging to J.S. Sethi.
The contractual rent of the premises was Rs. 160 per month.
Sethi filed petition under section 14(1) of the Delhi Rent Control Act, 1958 for 392 an order in ejectment against Chawla on the plea that the latter had committed default in paying rent for seven months consecutively.
Pursuant to a direction of the Rent Controller, Chawla deposited the rent claimed, and the amount deposited was paid over to Sethi and the proceeding was disposed of.
Chawla again committed default for three consecutive months, and Sethi commenced another proceeding under section 14(1) of the Delhi Rent Control Act for an order in ejectment.
Chawla denied the claim that he had committed default in payment of rent.
He pleaded that he had on March 19, 1963 sent to Sethi Rs. 320 by a postal money order which Sethi had refused to accept.
Sethi denied that a money order sent by Chawla was brought to him by the postal peon.
Chawla also pleaded that the contractual rent was excessive and that the rent of the premises let to him could not exceed Rs. 50 per month and prayed that standard rent may be fixed by the Controller.
The Controller rejected that contention of Chawla and passed an order in ejectment.
The order of ejectment passed by the Controller was confirmed in appeal by the Rent Control Tribunal, and a second appeal to the High Court was also unsuccessful.
Chawla has appealed to.
this Court with special ,leave.
In support of the appeal counsel for Chawla contended: (i) that the Controller was bound to determine the standard rent of the premises in the proceeding instituted by Sethi, and since the Controller failed to do so the order in ejectment was illegal; (ii) the Courts below were in error in holding that Chawla could not obtain the benefit of section 14(2) of the Delhi Rent Control Act, 1958; (iii) that the legal presumption arising from the despatch of a postal money order for Rs. 320 addressed to Sethi had been ignored by all the courts; and (iv) that Chawla had made a deposit of rent for three months and if that deposit be taken into account Chawla was not in arrears for three consecutive months at the date of the initiation of the proceeding.
Not much need be said about contentions (iii) and (iv).
The fourth plea was not raised before the Rent Controller and the Rent Control Tribunal; it was sought to be urged for the first time before the High Court and the High .Court declined to entertain that plea.
We have not permitted counsel to raise that plea, for its determination depends upon proof of facts which were never proved.
All the Courts have held that Chawla had failed to prove his case that a postal money order for Rs. 320 sent by Chawla was duly addressed to Sethi and that Sethi refused to accept the postal money order when it was tendered to him.
The only evidence in support of that case was a postal receipt for despatch of a money order for Rs. 320 to Sethi.
It did not bear the residential address 393 of Sethi.
Sethi deposed that no one had tendered to him the postal money order.
His testimony has been believed.
The third contention must therefore fail.
We may now turn to the first and the second contentions it is necessary to bear in mind that under the Delhi Rent Act, a proceeding for recovery of rent does not lie before the Controller; lies in the civil court.
The Controller is authorised to try a proceeding for ejectment or for determination or for determination of standard rent, or for determination of fair rent in respect of a hotel and lodging house.
The relevant provisions of the Delhi Rent Control Act, 1958 which have a bearing on the two contentions remaining to be determined may first be noticed: Section 2(k) defines "standard rent" as meaning in relation to any premises, "the standard rent referred to in section 6 or where the standard rent has been increased under section 7, such increased rent.
Chapter II deals with the quantum and the procedure for determination of standard rent, and related matters.
Section 6 of the Act deals with the quantum of standard rent.
Insofar as it is relevant, it provides: "(1) subject to the provisions of sub section (2), 'standard rent ', in relation to any premises means (A) in the case of residential premises (1) where such premises have been let out at any time before the 2nd day of June 1944 (a) if the basic rent of such premises per annum does not exceed six hundred rupees the basic rent; or (b) if the basic rent of such premises per annum exceeds six hundred rupees, the basic rent together with ten per cent of such basic rent; (2) where such premises have been let out at, any time on or after the 2nd day of June 1944 (a) in any case where the rent of such premises has been fixed under the Delhi and Ajmer Merwara Rent Control Act, 1947, or the Delhi and Ajmer Rent Control Act, 1952 (i) if such rent per annum does not exceed twelve hundred rupees, the rent so fixed; or 394 (ii) if such rent per annum exceeds twelve hundred rupees, the rent so fixed together with ten per cent of such rent; (b) in any case, the rent calculated on the basis of seven and one half per cent per annum of the aggregate amount of the reasonable cost of construction and the market price of the land comprised in the premises on the date of the commencement of the construction: Provided that where the rent so calculated exceeds twelve hundred rupees per annum, this clause shall have effect as if for the words "seven and one half per cent", the words "eight and one fourth per cent" has been substituted: Section 7 provides for lawful increase of standard rent in certain cases and for recovery of other charges.
Section 9 authorises the Controller to fix the standard rent of the premises.
In so far as it is relevant, it provides: "(1) The Controller shall, on an application made to him in this behalf, either by the landlord or by the tenant, in the prescribed manner, fix in respect of any premises (i) the standard rent referred to in section 6; or (ii) the increase, if any, referred to in section 7; (2) In fixing the standard rent of any premises or the lawful increase thereof, the Controller shall fix an amount which appears to him to be reasonable having regard to the provisions of section 6 or section 7 and the circumstances of the case.
(3) (4) (5) the standard rent shall in all cases be fixed for a tenancy of twelve months: Provided that where any premises are let or re let for a period of less than twelve months, the standard rent for such tenancy shall bear the same proportion to the annual standard rent as the period of tenancy bears to twelve months.
(6) 395 (7) In fixing the standard rent of any premises under this section, the Controller shall specify a date from which the standard rent so fixed shall be deemed to have effect; Provided that in no case the date so specified shall be earlier than one year prior to the date of the filing of the application for the fixation of the standard rent.
" Section 10 provides for fixation of interim rent in an application for determination of standard rent.
That section states: "If an application for fixing the standard rent or for determining the lawful increase of such rent is made under sect,ion 9, the Controller shall, as expeditiously as possible, make an order specifying the amount of the rent or the lawful increase to be paid by the tenant to the landlord pending final decision on the application and shall appoint the date from which the rent or lawful increase so specified shall be deemed to have effect".
Section 12 insofar as it is relevant provides: "Any landlord or tenant may file an application to the Controller for fixing the standard rent of the premises or for determining the lawful increase of such rent, (a) in the case of any premises which were let, or in which the cause of action for lawful increase of rent arose before the commencement of this Act, within two years from such commencement; (b) in the case of any premises let after the commencement of this Act, (i) where the application is made by the landlord, within two years from the date on which the premises were let.
to the tenant against whom the application is made; (ii) where the application is made by the tenant, within two years from the date on which the premises were let to the tenant; and (c) in the case of any premises in which the cause of action for lawful increase of rent arises after the commencement of this Act, within two years from the date on which the cause of action arises: Provided that the Controller may entertain the application after the expiry of the said period of two years, 396 if he is satisfied that the applicant was prevented by sufficient cause from filing the application in time".
An application for fixation of standard rent must be made within two years of the date of the commencement of the Act if the premises were let before the date of the commencement of the Act, and if the premises were let after the commencement of the Act within two years from the date of letting.
The Controller is authorised to entertain the application after expiry of the period of two years if he is satisfied that the applicant was prevented by sufficient cause from filing the application in time.
Section 4 modifies the contract for payment of rent.
It provides: "(1) Except where rent is liable to periodical increase by virtue of an agreement entered into before the 1st day of January 1939, no tenant shall, notwithstanding any agreement to the contrary, be liable to pay to his landlord for the occupation of any premises any amount in excess of the standard rent of the premises, unless, such amount is a lawful increase of the standard rent in accordance with the provisions of this Act.
(2) Subject to the provisions of sub section (1), any agreement for the payment of rent in excess of the standard rent shall be construed as if it were an agreement for the payment of the standard rent only".
By section 5 it is provided: "(1) Subject to the provisions of this Act, no person shall claim or receive any rent in excess of the standard rent, notwithstanding any agreement to the contrary.
Section 14 which is in Ch.
III deals with protection of tenant against eviction.
Insofar as it is relevant the section provides: "(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant: Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only; namely : (a) That the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a 397 notice of demand for the arrears of rent has been served on him by the landlord in the manner provided in section 106 of the ; (2) No order for the recovery of possession of any premises shall be made on the ground specified in clause (a) of the proviso to sub section (1), if the tenant makes payment or deposits as required by section 15: Provided that no tenant shall be entitled to the benefit under this sub section, if, having obtained such benefit once in respect of any premises, he again makes a default in the payment of rent of those premises for three consecutive months.
Section 15, insofar as it is relevant, provides: "(1) In every proceeding for the recovery of possession of any premises on th e ground specified in clause (a) of the proviso to sub section (1) of section 14, the Controller shall, after giving the parties an opportunity of being heard, make an order directing the tenant to pay to the landlord or deposit with the Controller within one month of the date of the order, an amount calculated at the rate of rent at which it was last paid for the period for which the arrears of the rent were legally recoverable from the tenant including the period subsequent thereto upto the end of the month previous to that in which payment or deposit is made and to continue to pay or deposit, month by month, by the fifteenth of each succeeding month, a sum equivalent to the rent at that rate.
(2) (3 ) If, in any proceeding referred to in sub section (1), or sub section (2), there is any dispute as to the amount of rent payable by the tenant, the Controller shall, within fifteen days of the date of the first hearing of the proceeding, fix an interim rent in relation to the premises to be paid or deposited in accordance with the provisions of sub section (1) or sub section (2), as the case may be, until the standard rent in relation thereto is fixed having regard to the provisions of this Act, and the amount of arrears, if any, calculated on the basis of the standard rent shall be paid or deposited by the tenant within one month of the date on which the standard rent 398 is fixed or such further time as the Controller may allow in this behalf.
(4) (5) (6) If a tenant makes payment or deposit as required by sub section (1) or sub section.
(3), no order shah be made for the recovery of possession on the ground of default in the payment of rent by the tenant, but the Controller may allow such costs as he may deem fit to the landlord.
(7) If a tenant falls to make payment or deposit as required by this section, the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application".
Counsel for Chawla maintained that the period of limitation prescribed by section 12 only applies to petitions made to the Controller by a landlord or a tenant for fixing standard rent, but it has no application to a defence raised to a petition for ejectment filed by a landlord under section 14 that the contractual rent exceeds the standard rent and requests that the standard rent be determined.
Counsel contends that since in the present case the Controller failed, though expressly requested by Chawla by his written statement to enquire into the standard rent payable the proceedings were.
vitiated and the order made by the Controller was illegal.
It is common ground that the written statement was filed more than two years after the date on which the tenancy commenced and if an application under section 12(a) or(b) was made on that date it would be barred by the law of limitation.
But counsel said that in terms section 12 applies to a substantive application and not to a defence.
He relied in respect of his contention to various indication, which he contends, are to be found in the Act.
Counsel says that by virtue of the provisions of sections 4 and 5 recovery of rent by a landlord in excess of the standard rent is prohibited.
But in our judgment the prohibition in sections 4 and 5 operates only after the standard rent of premises is determined and not till then.
So long as the standard rent is not determined by the Controller, the tenant must pay the contractual rent: after the standard rent is determined the landlord becomes disentitled to recover an amount in excess of the standard rent from the date on which the determination operates.
We are unable to agree that standard rent of a given tenement is by virtue of section 6 of the Act a fixed quantity, and the liability for payment of a tenant is circumscribed thereby even if the standard rent is not fixed by order of the Controller.
Under the scheme of the Act standard rent of a given tenement is that amount only which the Controller determines.
Until the standard rent is 399 fixed by the Controller the contract between the landlord and the tenant determines the liability of the tenant to pay rent.
That is clear from the terms of section 9 of the Act.
That section clearly indicates that the Controller alone has the power to fix the standard rent, and it cannot be determined out of court.
An attempt by the parties to determine by agreement the standard rent out of court is not binding.
By section 12 in an application for fixation of standard rent of premises the Controller may give retrospective operation to his adjudication for a period not exceeding one year before the date of the application.
The scheme of the Act is entirely inconsistent with standard rent being determined otherwise than by order of the Controller.
In our view, the prohibition against recovery of rent in excess of the standard rent applies only from the date on which the standard rent is determined by order of the Controller and not before that date.
Counsel contends that by section 15(3) it is expressly contemplated that a request may be made ' for determination of standard rent as a defence to an action in ejectment, and since the Legislature has provided no time for making such a defence, the bar of limitation prescribed by section 12 has no application.
But the Legislature has provided for making an application for determination of standard rent and has prescribed a period of limitation in that behalf.
Section 14 enables the landlord to file a petition in ejectment before the Controller on the ground that the tenant has failed to pay or tender the arrears of rent legally recoverable from him within two, months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord In such a case under section 15(1) where the rate of rent is accepted but there is a dispute as to the payment of rent, the Controller will proceed to determine.
whether payment according to the contract has been made.
By sub section (1 ) of section 15 it is provided that the Controller shall make an order directing the tenant to pay to the landlord or deposit with the Controller within one month of the date of the order, an amount calculated at the rate at which rent was last paid.
But the clause in terms provides that this has to be done after giving the parties an opportunity of being heard.
If the Controller was obliged to pass an order calling upon the tenant to pay to the landlord, or to deposit in his Court the amount of rent calculated ' at the rate at which it was last paid for the period for which the arrears of rent were legally recoverable from the tenant, there would be no scope for a hearing to be given to the tenant and it would put a premium upon false claims by landlords.
Even though the expression "shall" is used, it is, in our judgment, directory.
The tenant is entitled to show that he has paid the rent claimed ' from him.
If he proves that he has paid the rent, the demand for deposit of arrears under sub section (1) of section 15 cannot be made.
Sub section (3) of section 15 refers to cases in which there is a dispute 400 as to the amount of rent payable by the tenant.
In that case the Controller has to fix within fifteen days of the date of the first hearing of the proceeding, interim rent for the premises to be paid or deposited in accordance with the provisions of sub section (1) until the standard rent in relation thereto fixed having regard to the provisions of the Act.
The determination of interim rent will be for the period after the date of the application and also for arrears.
Counsel for Chawla contended that the expression "dispute as to the amount of rent payable by the tenant" in sub section
(3) of section 15 means a dispute raised by the tenant as to the "standard rent payable".
We are unable to agree.
The dispute, referred to in section 15(3) is the dispute about contractual rent payable.
When such a dispute is raised the Controller has, within fifteen days of the date of the first heating of the proceeding, to fix interim rent payable by the tenant in accordance with the provisions of sub section
(1) including the arrears, and such payment has to be made until the standard rent in relation thereto is fixed "having regard to the provisions of the Act".
Sub section
(3) provides that "interim rent" is to be paid at the rate at which it was last paid tilt standard rent is determined, but thereby it is not implied that standard rent is to be determined as an issue arising in the action for ejectment: the clause only means that when there is a dispute relating to the rate of contractual rent payable the Controller shall within fifteen days of the date of the first hearing of the proceeding fix the interim rent, and the amount so fixed shall be paid by the tenant until the standard rent in relation to the premises is fixed in an appropriate proceeding under the Act.
The expression "having regard to the provisions of this Act" has in our judgment reference to sections 9 and 12.
Payment of arrears and standard rent under sub section
(3) must be made within one month of the date on which the standard rent is fixed, or within such further time as the Controller may allow in that behalf.
The scheme of sub section
3 of section 15 is only that the interim rent will be paid at the rate ordered by the Controller, and before the proceeding is disposed of standard rent of the premises is fixed by the Controller in an application under section 12, then in order to.
obtain benefit of section 6 the tenant must pay the arrears calculated on the basis of the standard rent within one month from the date on which the standard rent is fixed or within such further time as the Controller may allow.
If in a proceeding under section 14(1)(a) the tenant raises by way of defence a contention that the standard rent be determined the Controller may treat that as an application under section 12 and deal with it according to law.
But the Act, confers no power under section 15(3) upon the Controller.
The power to determine standard rent is exercisable under section l 2 only.
401 Our attention was drawn to a number of decisions of the Punjab and the Delhi High Courts in which it was held that the Rent Controller has in a petition in ejectment jurisdiction to determine, the standard rent payable by the tenant.
In Jiwan Industries Private Ltd. vs Santosh & Company(1).
Bedi, J., held that the Rent Controller could fix the standard rent in a proceeding in ejectment even after the application of the landlord for ejectment of the tenant had been dismissed.
In Messrs Suraj Balram Sawhney & Sons.
vs Dr. D. Kiri(2) Gurdev Singh, J., held that the Controller had jurisdiction under section 15(3) to determine the standard rent in an application for ejectment based on the plea of non~payment of rent, if the tenant raised a contention that the contractual rent is in excess of the standard rent.
The learned Judge was of the view that the language of sub section
(3) of section 15 covers even those cases in which an application for fixation of standard rent it made independently would be barred by time prescribed under section 12 of the Act, since the limitation prescribed under section 12 applies only to an application made for fixation of standard rent and not to a plea taken up by the tenant in defence to an action for his eviction under proviso (a) to sub section
(1) of section 14 of the Act.
If the tenant deposits the arrears of rent, observed the learned Judge, but at the same time contends that the rent claimed from him is in excess of the standard rent the Controller has to go into the question of standard rent and he cannot order payment of the entire arrears of rent deposited unless he finds that the arrears so deposited are not in excess of the arrears calculated at the rate at which, the standard rent is fixed.
In S.K. Chatterjee and Anr.
J.N. Ghoshal(3) S.K. Kapur J., held that the words "any dispute as to the amount of rent payable by the tenant" in sub section
(3) of section 15 refers to the dispute arising between the parties on account of claim of a party for fixation of standard rent.
The learned Judge further held that section 15 (3 ) in terms confers powers to order payment or deposit of arrears at the interim rate of rent.
If the disagreement between the parties be both as to agreed rent and the standard rent, the power will be exercised under section 15(3) because the standard rent will prevail over the agreed rent.
He also held that section 15 provides a code by itself as to the nature of enquiry, the Controller has to fix an interim rent within 15 days of the date of the first hearing of the proceeding.
If this has to be done after a fullfledged enquiry compliance with section 15(3) would become impossible.
This by itself indicates that the authorities constituted under the Act are to makean enquiry in a summary manner.
(1) (2) (1965) 67 P.L.R. (3) (1966) P.L.R. (Delhi Section) 354.
402 V.S. Deshpande, J., in Chander Bhan vs Nand Lal and Anr.(1) observed that his observation in the case which is under appeal in this case that the expression "having regard to the provisions of this Act" used in section 15 (3 ) seemed to refer inter alia to sections 9 and 12 of the Act, and that observation was "not strictly necessary for the decision of that case" inasmuch as there was no dispute as to the rate of rent in that case and hence section 15(3) was not attracted at all.
The learned Judge also observed that there were two distinct provisions in the Act for fixation of standard rent the first in section 9 under which an application for the fixation of standard rent is made, for which limitation is provided by section 12 of the Act; the other is in section 15(3) of the Act, and that applies only when there is "a genuine dispute" between the parties regarding the rate and the amount of rent.
These observations prompt the comment that if the view expressed be correct the period of limitation prescribed by section 12 is rendered practically nugatory.
If a written statement filed in an application for ejectment under section 14(1)(a) raises no defence on the merits and contains a request for determination of standard rent, it would be illogical to hold that if made in a substantive petition it would be barred, but because it is a request made in a written statement in answer to a claim for ejectment it is free of the limitation prescribed by section 12.
It is to be noticed that under section 12 standard rent may be given retrospective operation for not more than one year.
But if a tenant is in arrears for more than one year, on the contention advanced by counsel for Chawla the tenant would be liable to pay arrears at the rate of standard rent determined for a period longer than one year before the date on which he made a claim in his written statement for determination of standard rent and may be entitled to reopen closed transactions.
The legislature could not have intended that the tenant in default should be entitled to evade the statutory period of limitation prescribed by the expedient of refusing to make an application so as to obtain an advantage to which he is not entitled if he moves the Controller in a substantive application for determination of standard rent.
In our view the expression "having regard to the provisions of this Act" occurring in sub section
(3) of section 15 means "having regard to sections 9 and 12 and other relevant provisions of the Act.
In our view Deshpande, J., in the judgment under appeal was right in the view that he took, and that the refinement he sought to introduce in the latter judgment in Chandrabhan vs Nand Lal and Anr.(1) cannot be accepted as correct.
The judgments to which our attention was invited appear to have proceeded upon earlier judgments of the Punjab High Court in Lala Manohar Lal Nathan Mal vs Madan Lal Murari Lal(2) (1)[1969] All India Rent Control Journal 623.
(2) A. I. R. 403 and Smt.
Radhey Piari vs
section Kalyan Singh(1).
But both these cases were decided on the interpretation of sections 8 to 11 of the Delhi and Ajmer Rent Control Act 38 of 1952 in which it was expressly provided that the standard rent shall be fixed on an application made to the Court for that purpose or in an application in any suit or in any proceeding.
We need express no opinion whether the cases under the Delhi and Ajmer Rent Control Act 38 of 1952 were correctly decided.
But the difference in the phraseology used in the Delhi Rent Control Act 59 of 1958 does not appear to have been noticed in the judgments cited at the Bar in support of the contention that to a written statement filed by a tenant when an application is made under section 14(1)(a) the conditions of section 12 do not apply.
We are of the view that the Rent Controller, the Rent Control Tribunal and the High Court were right in the view they have expressed.
The second contention is also without substance.
The tenant had made no attempt to pay the rent which was demanded of him.
Sub section (2) of section 14 enacts that the Controller shall not pass an order for recovery of possession of any premises if the tenant makes payment or deposit as required by section 15.
The bar to the jurisdiction of the Controller arises when the tenant pays or deposits interim rent as required by section 15(3) and an application for fixation of standard rent is not payment or deposit required by section section 15.
In any event by virtue of the proviso to sub section (2) of section 14 Chawla is not entitled to the benefit of sub section
(2) for he had earlier committed default in payment of rent in respect of the premises and a proceeding was instituted against him for recovery of possession.
That proceeding was disposed of after he deposited the amount of rent due by him.
By depositing the amount in court in the previous proceeding, Chawla clearly obtained the benefit under section 14(2) in respect of the premises occupied by him as a tenant.
Thereafter he made another default in payment of rent for three consecutive months.
Chawla was, therefore, not entitled to claim the protection of sub section
(2) of section 14 for he made no payment as required by section 15 and also because he had previously obtained the benefit of sub section
(2) by making a deposit in the earlier proceeding.
The contention of counsel for Chawla that the proceeding started by Sethi against him was dismissed and that Chawla had not obtained any benefit in respect of the premises under sub section
(2) of section 14 does not require serious consideration.
Chawla obtained an order of disposal of the proceeding by depositing the amount ordered to be deposited by him under section 15.
That was clearly a 404 benefit which he obtained under section 14(2).
The plea that "no tenant shall be entitled to the benefit under this sub section" is only directory is without substance.
In any event the High Court was of the view that having regard to the conduct of Chawla he having committed default previously and having obtained the benefit of sub section
(2) in respect of the premises he was not entitled to the same benefit in this proceeding.
Assuming that the proviso to sub section
(2) of section 14 is not mandatory on that question we express no opinion we are clearly of the view that the High Court having declined to grant the benefit of sub section
(2) of section 14 to Chawla, no case is made out for our interference.
The appeal fails and is dismissed with costs.
Appeal dismissed.

summary/full:
The appellant was the tenant since before 1958 of certain premises in Delhi belonging to the respondent.
The latter filed a proceeding for electing the appellant under section 14(1) of the Delhi Rent Control Act, 1958, on the plea of non payment of rent for seven months.
Persuant to the direction of the Rent Controller the appellant paid the arrears under section 141.2) of the Act and the proceeding was disposed of.
The appellant again committed default in payment of rent for three consecutive months and the respondent again filed a fresh proceeding for his ejectment under section 14(1).
In his written statement the appellant asked the Rent Controller to fix the standard rent of the premises and further to give him again the benefit of 14(2).
The Rent Controller rejected these pleas and passed an order ' in ejectment.
Appeals before the Rent Control Tribunal and the High Court failed.
In appeal by special leave before this Court the appellant contended that the order of the Rent Controller was illegal because he failed to fix the standard rent as claimed by the appellant.
He also contended that the limitation period prescribed in section 12 of the Act for an application for fixation of standard rent did not apply where the claim made as a defence in a suit for ejectment under section 14(/)(c), and that in any event he was entitled to the benefit of section 14(2).
HELD: (i) The appellant 's plea that the Rent Controller was to fix the standard rent when the appellant asked for its fixation in his written statement must be rejected.
(a) The prohibition in ss 4 and 5 of the Act operates only after the standard rent has been fixed and not before.
Until the Rent Controller has fixed the standard rent under section 9.
the contract between the landlord and tenant determines the liability.
Section 6 cannot be interpreted to mean that standard rent can be regarded as fixed without an order the Controller.
[400 F H] (b) When section 15(3) refers to a ease in which there is a "dispute as to amount payable by the tenant" the dispute referred to is about contractual rent payable and not about the standard real.
The "having regard to the.
provisions of the Act" has reference to sections 9 and 12.
The scheme of sub section
(3) of s 15 is that the interim rent will be paid at the rate ordered by the Controller and if before the proceeding is disposed of standard rent is fixed by the Controller in an application under s.12 then in order to obtain the benefit of s.6 the tenant must pay the arrears calculated on the basis of the standard rent within one month from the date on which the standard rent is fixed or within such further time as the Controller may allow.[402 B G] 391 If in a proceeding under section 14(1)(a) the tenant raises by way of defence a contention that the standard rent be determined the Controller may treat that as an application under section 12 and deal with it according to law.
But the Act confers no power under section 15(3) upon the Controller.
The power to determine standard rent is exercisable under section 12 only.
[402 H] (e) Acceptance of the appellant 's contention would lead to anomalous results.
Under section 12 standard rent may be given retrospective operation for not more than one year.
But if a tenant is in arrears for more than one year, on the contention of the appellant, the tenant would be liable to pay arrears at the rate of standard rent determined for a period longer than one year before the date on which he made a claim in his written statement for determination of standard rent and may be entitled to reopen closed transactions.
The legislature could not have intended that the tenant in default should be entitled to evade the statutory period of limitation prescribed by the expedient of refusing to make an application so as to obtain an advantage to which he is not entitled if he moves the Controller in a substantive application for &.termination of standard rent.
[404 E F] M/s. Suraj Balram Sawhney & Sons vs Dr. D. Kid, , 8.
K. Chatterjee & Anr.
J.N. Ghoshal, (1966) P.L.R. (Delhi Section) 354 and Chander Bhan vs Nand Lal & Anr. , disapproved.
Jiwan Industries Private Ltd. vs Santosh & Company, , Lala Manohar Led Nathan Mal vs Medal Lal Murari Lal, A.I.R. , and Smt.
Radhey Piari vs section Kalyan Singh, A.I.R. 1959 Punjab, 508, referred to. (ii) The earlier proceeding against the appellant was disposed of on his payment of arrears of rent for seven months.
Thereby the appellant had on the earlier occasion obtained the benefit of section 14(2).
Having again made default in payment of rent and not having made any payment under section 15, he was not entitled for a second time to the benefit of section 14 (2).
The words "no tenant shall be entitled to the benefit under this sub section in the proviso sub section
(2) of section 14 are not directory.
Even on the assumption that the proviso is not mandatory there was no justification for interfering with the finding of the High Court that the appellant was not entitled to the benefit of section 14(2).
[405 E G]