judgement:
Appeal No. 765 of1964.
Appeal by special leave from the judgment and order, dated April 23, 1963, of the Madhya Pradesh High Court in First Appeal No. 24 of 1963.
N.C. Chatterjee, V. section Sawhney, section section Kanjuja and Ganpat Rai, for the appellant.
G.S. Pathak and Dipak Datta Chaudhry, for respondent No. 1.
The Judgment of the Court was delivered by Gajendragadkar, C.J.
This appeal by special leave arises out of an Election petition filed by respondent No. 1, Harikishan 878 Singh, challenging the validity of the election of the appellant, Bhaiyalal, in a reserved seat in the Berasia Constituency in the district of Sehore in Madhya Pradesh.
The election in question was held in February, 1962; at this election the appellant, respondent No. 1, and three others offered themselves as candidates.
The appellant was declared duly elected on the 26th February, 1962 since he had polled the highest number of votes.
His next rival was respondent No. 1.
By this petition, respondent No. 1 challenged the validity of the appellant 's election on the ground that the appellant belonged to the Dohar caste and was not a Chamar.
The appellant had filed his nomination paper on the 19th January, 1962 before the Returning Officer at Sehore and had declared that he was a member of the Chamar scheduled caste of the State of Madhya Pradesh in relation to Sehore district.
This declaration was accepted by the Returning Officer.
Respondent No. 1 contended that Dohar caste was not recognised as the scheduled caste for the district of Sehore and Raisen, and so, the Returning Officer bad improperly and illegally accepted the declaration of the appellant as one belonging to the Chamar scheduled caste.
Since the appellant did not belong to the scheduled caste in question, he was not entitled to stand for election for the reserved seat in respect of the said Constituency.
This is the basis on which the validity of the appellant 's election was challenged by respondent No. 1.
On the other hand, the appellant urged that the election petition filed by respondent No. 1 was not maintainable inasmuch as he had not deposited the security of Rs. 2,000 in the manner prescribed by the statutory rules.
On these pleadings, the Election Tribunal framed appropriate issues.
The first four issues covered the principal contention raised by respondent No. 1 against the validity of the appellant 's nomination as a member belonging to the Chamar scheduled caste, whereas the fifth issue related to the appellant 's contention about the incompetence of the election petition filed by respondent No. 1.
Both parties led evidence in support of their pleas on the principal point of dispute between them.
The Election Tribunal con sidered the oral evidence adduced by the parties, examined the documents on which they respectively relied, and found in favour of respondent No. 1.
In regard to the plea raised by the appellant against the competence of the election petition, the Tribunal found against him.
In the result, the election petition was allowed and the appellant 's election declared invalid.
Against this decision of the Election Tribunal, the appellant preferred an appeal to the Madhya Pradesh High Court.
Before 879 the High Court, the same two points were urged.
The High Court has confirmed the finding of the Election Tribunal on both the points.
It has held that the election petition filed by respondent No. 1 was valid and the security deposit was made by him in accordance with the statutory requirements.
On the merits of the, controversy as to whether the appellant was a Chamar by caste and as such was entitled to be elected for the reserved seat in the, Constituency in question, the High Court, in substance, has agreed with the conclusion of the Election Tribunal.
In consequence, the appeal preferred by the appellant was dismissed on the 23rd April, 1963.
It is against this decision that the appellant has come to this Court by special leave.
On behalf of the appellant Mr. Chatterjee has contended that the High Court was in error in confirming the finding of the Election Tribunal in regard to the caste to which the appellant belonged.
It appears that the appellant 's case was that he was a Dohar Chamar which according to him is a sub caste of the Chamar scheduled caste.
He urged that the said sub caste was also called 'Mochi '.
In support of this plea, the appellant examined witnesses and produced documents, and a, we have just indicated, respondent No. 1 also produced witnesses and examined documents to show that the Dohar caste was distinct from and independent of the Chamar caste and Dohars could not, therefore, claim to be Chamars within the meaning of the Presidential Order.
Thus, the question which arose between the parties for decision in the present proceedings is a question of fact and on this question both the Tribunal and the High Court have made concurrent findings against the appellant.
It is true that in reaching their conclusion on this point, the Tribunal as well as the High Court had to consider oral as well as documentary evidence; but in cases of this kind where the Tribunal and the High Court make concurrent findings on questions of fact, this Court does not usually interfere; and after hearing Mr. Chatterjee we see no reason to depart from our usual practice in this matter.
Respondent No. 1 examined 13 witnesses belonging to the caste of the appellant.
All of them asserted that they did not belong to the Chamar caste.
According to their evidence, the Dohar caste was different from the Chamar caste.
There was no intercaste marriage nor even inter caste dinners between the members of the said two castes.
This evidence shows that Chamars and Mochis of Sehore district lived in mohallas different from the mohallas in which the Dohars lived.
Amongst the witnesses examined by respondent No. 1, the High Court has attached considerable significance to the evidence of Kishanlal, P. W. 4., 880 He was the Secretary of the Dohar Samaj started by the appellant himself.
The appellant was then the Sirpanch of that Samaj.
It is true that the Samaj did not function for long; but the documents produced by respondent No. 1 to show the constitution of the Samaj clearly indicate that the appellant had taken a prominent part in that matter.
Kishanlal 's evidence is absolutely clear and unambiguous.
He has stated on oath that the Dohar and the Chamar castes are entirely different.
The Chamars, according to him, take off skins from dead animals, prepare shoes and do leather work; the Dohar, said the witness, is not the sub caste of Chamar caste; there is no relationship of inter dining and intermarriage between the two.
He denied that the Dohars are called Mochis.
Mr. Chatterjee has not been able to show any reason why the evidence of this witness should not have been believed by the High Court.
The witness belongs to the same caste as the appellant and there is no motive shown why he should take a false oath in respect of a matter which to persons of his status has great significance.
It is not likely that a person like Kishanlal would make false statement about his own caste.
In support of his oral evidence, respondent No. 1 produced certain documents, Exts.
P. , P. 4 and P. 5.
These are all signed by the appellant and they relate to the year 1956.
In these documents, the appellant has described himself as Dohar; in none of them has he mentioned his caste as Chamar.
Similar is the effect of other documents on which respondent No. 1 relied; they are P. , P. , P. , P. , P. , to P. 27.
In rebuttal the appellant examined himself and his witnesses.
This oral evidence was intended to show that the Dohar caste is the same as Mochi caste and it is a sub caste of the Chamar caste.
In addition to the oral evidence, the appellant produced 22 documents.
It is true that some of these documents which had been discarded by the Election Tribunal as unworthy of credence or as irrelevant, have been accepted by the High Court as relevant and genuine.
Even so, the High Court has come to the conclusion that these documents do not show satisfactorily that the Dohar caste is a sub caste of the Chamar caste.
In that connection, the High Court has pointed out that the documents relied upon by the appellant do not support his case that the Dohar caste is a sub caste of the Chamar caste, and in that sense, they are not consistent with the plea made by the appellant in the present proceedings.
We allowed Mr. Chatterjee to take us through the material evidence; and on considering the said evidence in the 881 light of the criticism made by Mr. Chatterjee, we are satisfied that there is no reason to interfere with the concurrent finding recorded by the Tribunal and the High Court on the main question of fact.
We must, accordingly, hold that the appellant does not belong to the Chamar caste and as such was not qualified to contest the reserved seat for the scheduled caste of Chamars in the Constituency in question.
Incidentally, we may point out that the plea that the Dohar caste is a sub caste of the Chamar caste cannot be entertained in the present proceedings in view of the Constitution (Scheduled Castes) Order, 1950.
This Order has been issued by the President under Article 341 of the Constitution.
Article 341 (1) provides that the President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races, or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be.
Sub Article (2) lays down that Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.
It is thus clear that in order to determine whether or not a particular caste is a scheduled caste within the meaning of article 341, one has to look at the public notification issued by the President in that behalf.
In the present case, the notification refers to Chamar, Jatav or Mochi, and so, in dealing with the question in dispute between the parties, the enquiry which the Election Tribunal can hold is whether or not the appellant is a Chamar, Jatav or Mochi.
The plea that though the appellant is not a Chamar as such, he can claim the same status by reason of the fact that he belongs to the Dobar caste which is a sub caste of the Chamar caste, cannot be accepted.
It appears to us that an enquiry of this kind would not be permissible having regard to the provisions contained in article 341.
In the case of B. Basavalingappa vs D. Munichinnappa & Others,(1) this Court had occasion to consider a similar question.
The question which arose for decision in that case was whether respondent No. 1, though Voddar by caste, belonged to the scheduled caste of Bhovi mentioned in the Order, and while holding that an enquiry into the said question was permissible, the Court has elaborately referred to the special and unusual (1) ; 882 circumstances which justified the High Court in holding that Voddar caste was the same as the Bhovi caste within the meaning of the Order; otherwise the normal rule would be : "it may be accepted that it is not open to make any modification in the Order by producing evidence to show, for example, that though caste A alone is mentioned in the Order, caste B is also a part of caste A and, therefore, must be deemed to be included in caste A." That is another reason why the plea made by the appellant that the Dohar caste is a sub caste of the Chamar caste and as such must be deemed to be included in the Order, cannot be accepted.
Whilst we are referring to this aspect of the matter, we may point out that the Order has taken good care to specify different castes under the same heading where enquiry showed that the same caste bore different names, or it had sub castes which were entitled to be treated as scheduled castes for the purposes of the Order.
In the district of Datia, for instance, entry 3 refers to Chamar, Ahirwar, Chamar Mangan, Mochi or Raidas.
Similarly, in respect of Maharashtra, Item 1, entries 3 and 4 refer to the same castes by different names which shows either that the said castes are known differently or consist of different sub castes.
Likewise, item 2, entry 4 in the said list refers to Chamar, Chamari, Mochi, Nona, Rohidas, Ramnami, Satnami, Surjyabanshi or Surjyaramnami.
It is also remarkable that in Maharashtra in certain districts Chambhar and Dhor are included in the list separately.
Therefore, we do not think that Mr. Chatterjee can seriously quarrel with the conclusion of the High Court that the appellant has not shown that he belongs to the Chamar caste which has been shown in the Order as a scheduled caste in respect of the Constituency in question.
Mr. Chattejee attempted to argue that it was not competent to the President to specify the lists of Scheduled Castes by reference to different districts or sub areas of the States.
His argument was that what the President can do under article 341(1) is to specify the castes, races or tribes or parts thereof, but that must be done in relation to the entire State or the Union territory, as the case may be.
In other words, says Mr. Chatterjee, the President cannot divide the State into different districts or subareas and specify the castes, races or tribes for the purpose of article 341(1).
In our opinion, there is no substance in this argument.
The object of article 341(1) plainly is to provide additional protection to the members of the Scheduled Castes having regard to the economic and educational backwardness from which they suffer.
It is obvious that in specifying castes, races or tribes, 883 the President has been expressly authorised to limit the notification to parts of or groups within the castes, races or tribes, and that must mean that after examining the educational and social backwardness of a caste, race or tribe, the President may well come to the conclusion that not the whole caste, race or tribe but parts of or groups within them should be specified.
Similarly, the President can specify castes, races or tribes or parts thereof in relation not only to the entire State, but in relation to parts of the State where he is satisfied that the examination of the social and education are backwardness of the race, caste or tribe justifies such specification.
In fact, it is well known that before a notification is issued under article 341(1), an elaborate enquiry is made and it is as a result of this enquiry that social justice is sought to be done to the castes, races or tribes as may appear to be necessary, and in doing justice, it would obviously be expedient not only to specify parts or groups of castes, races or tribes, but to make the said specification by reference to different areas in the State.
Educational and social backwardness in regard to these castes, races or tribes may not be uniform or of the same intensity in the whole of the State; it may vary in degree or in kind in different areas and that may justify the division of the State into convenient and suitable areas for the purpose of issuing the public notification in question.
Therefore, Mr. Chatterjee is in error when he contends that the notification issued by the President by reference to the different areas is outside his authority under article 341 (1).
The result is, the appeal fails and is dismissed with costs.
Appeal dismissed.

summary/full:
The appellant 's election was challenged inter alia, on the ground that he belonged to the Dohar caste which was not recognised as a Scheduled Caste for the district in question and so his declaration that he belonged to the Chamar caste which was a Schedule Caste was improperly and illegally accepted by the Returning Officer.
The Election Tribunal declared the election invalid.
The finding was confirmed on appeal by the High Court.
In appeal to the Supreme Court.
HELD : (i) The plea that though the appellant is not a Chamar as such, he can claim the same status by reason of the fact that he belonged to Dohar Caste which is a sub caste of the Chamar caste cannot be accepted.
An enquiry of this kind would not be permissible having regard to the provisions contained in article 341 of the Constitution.
[881 F G] Basavalingappa vs D. Munichinnappa, ; , referred to.
(ii)In specifying castes, races or tribes under article 341 of the Constitution, the President has been expressly authorised to limit the notification to parts of or groups within the castes, race or tribe, the President may well come to the conclusion that not the whole caste, race or tribe but parts of or groups within them should be specified.
Similarly the President can specify castes, races or tribes or parts thereof in relation not only to the entire State, but in relation to the parts of the State where he is satisfied that the examination of the social and educational backwardness of the race, caste or tribe justifies such specification.
[882 H 883 C]


judgement:
ivil Appeal No. 875 of 1964.
Appeal by special leave from the judgment and order dated April 10, 1964, of the Calcutta High Court in Civil Rule No. 4439 of 1962.
N.C. Chatterjee and D. Goburdhan, for the appellants.
P.K. Chatterjee and D.N. Mukherjee, for the respondent.
The Judgment of the Court was delivered by Gajendragadkar, C.J.
Appellant No. 1, Kaluram Onkarmal, was let into possession of the premises described as holding No. 182H, G.T. Road, Asansol as a monthly tenant under Harbhajan Singh Wasal who was the owner of the said premises.
The rent agreed to be paid was Rs. 35 per month payable according to the English Calendar.
It appears that in 1953, the Calcutta National Bank Ltd. (now in liquidation) sued the owner Wasal on the original side of the Calcutta High Court on a mortgage.
In the said suit, a preliminary decree was passed and in due course, it was followed by a final decree.
During the proceedings of the said suit, Mr. K.K. Ghose was appointed Receiver of the mortgaged properties, including the premises in the present suit.
On February 18, 1960, the Receiver put the mortgaged properties to sale and the respondent, Baidyanath Gorain, purchased them.
The said sale was confirmed by the Calcutta High Court on March 1, 1960.
That is how the respondent became the owner of the suit premises along with other properties under mortgage.
After he acquired title to the suit premises in this manner, the respondent informed appellant No. 1 about the same by his letter dated the 2nd April, 1960.
On December IL 1961, the respondent sued appellant No. 1, and appellant No. 2, Kaluram Bajranglal in the First Court of the Muns if at Asansol for ejectment.
He claimed vacant possession of the premises let out to appellant No. 1 on several grounds.
He urged that he reasonably required the premises for rebuilding them after .demolishing the existing structure.
According to him, the existing structure had become very old and was in a dilapidated condition.
He also alleged that appellant No. 1 had unlawfully sublet the suit premises to appellant No. 2, and that he had failed to pay or deposit the rents for the last three years in accordance with law.
The claim for ejectment thus made by the respondent was disputed by appellant No. 1 on several grounds.
Appellant No. 1 denied that the respondent required the suit premises for rebuilding, and also disputed his allegation that he had sublet the said 36 premises unlawfully.
In regard to the averment made by the respondent that appellant No. 1 had failed to pay or deposit the rents due for the last three years, appellant No. 1 made a detailed dental.
He urged that the rents had been regularly paid to the owner in tune before August, 1960, and he pleaded that since the month of August, 1960 when he found that the owner was not prepared to accept the rents from him, he deposited them with the House Rent Controller, Asansol, from month to month.
It was his case that notice had been served on the owner in respect of these deposits from month to month as provided by section 21(3) of the West Bengal Premises Tenancy Act, 1956, (Act XII of 1956) (herematter called 'the Act ').
The written statement further averred that the deposit of the monthly rent continued to be made regularly under section 21 and that the rent for March, 1962 had been duly deposited on April 10, 1962.
This written statement was filed on April 11, 1962.
During the pendency of this suit, the respondent made an application under section 17(3) of the Act and claimed that the defence of appellant No. 1 against delivery of possession should be struck out, because he had failed to deposit or pay the amount in Court as required by section 17(1) of the Act.
This application was strenuously opposed by appellant No. 1 on the ground that section 17(3) could not be invoked against him in view of the fact that he had been depositing the rent from month to month under section 21.
and he urged that the deposit of rent thus made by him amounted to payment of rent by him to the respondent under section 22(3) and, therefore.
no default had been committed by him at all.
This dispute raised the question about the true scope and effect of the provisions of section 17(3) and section 22(3) of the Act.
The learned trial Judge held that notwithstanding the fact that appellant No. 1 had been depositing the rent from month to month under section 22 with the Rent Controller, having regard to the provisions contained in section 17(1) his failure to deposit the relevant amount in Court incurred the liability to have his defence struck out under section 17(3).
In coming to this conclusion, the learned Judge followed a decision of the Division Bench of the Calcutta High Court in Abdul Majid vs Dr. Samiruddin(1).
Having held that section 17(3) applied, the learned Judge directed that the defence raised by appellant No. 1 against the claim of the respondent for delivery of possession of the suit premises must be struck out.
This order was challenged by both the appellants by preferring a revision application before the Calcutta High Court.
Before this revision application reached the stage of hearing, the question raised by it had already been concluded by a majority decision of the Special Bench of the Calcutta High Court in Siddheswar Paul vs Prakash Chandra Dutta(2).
The learned single Judge who heard this (1) (2) A.I.R. 1964 Cal.
37 revision application was naturally bound by the said majority decision, and applying the said decision, he held that the order passed by the learned trial Judge striking out the defence of appellant No. 1 under section 17(3) of the Act was justified.
It is this order which is challenged by Mr. N.C. Chatterjee on behalf of the appellants in the present appeal which has been brought to this Court by special leave.
Mr. Chatterjee contends that the majority decision of the Special Bench in Siddheswar Paul 's case(1) is erroneous and has proceeded on a misconstruction of the tone, scope and effect of the two relevant section of the Act sections 17 & 22.
That is how the short question which falls for our decision in the present appeal is: what is the true scope and effect of the provisions prescribed by sections 17 and 22 of the Act? It appears that the Special Bench in Siddheswar Paul 's case was .divided on this issue; the three learned Judges have taken the view that section 22(3) does not apply to cases falling under section 17(1), whereas two other learned Judges have come to the conclusion that if a tenant had made a deposit with the Rent Controller to which section 22(3) applies, section 17(3) cannot be invoked against him.
The separate judgments delivered by all the learned Judges who constituted the Special Bench have dealh with the point at great length and each one has subjected the said two provisions to a close analysis and examination.
In the present appeal, we propose to consider the matter in a broad way and will confine ourselves to some general considerations which flow from the construction of the two relevant provisions and which.
in our opinion, support the view taken by the majority of the Judges in the Special Bench.
Before addressing ourselves to the main point in dispute between the parties, it is necessary to refer broadly to the scheme of the Act and its main provisions.
The Act was passed in 1956 and superseded the earlier Act XVII of 1950.
The Act consists of seven Chapters.
I deals with definitions; Ch.
II contains provisions regarding rent; Ch.
III coveys suits and proceedings for eviction; Ch.
IV has reference to deposit of rent; Ch.
V considers the question of appointment of the Controller and other Officers, their powers and functions; Ch.
VI provides for appeals, revision and review; and Ch.
VII deals with penalties and miscellaneous provisions.
Section 2(b) defines a "Controller"; section 2(c) defines "fair rent"; section 2(d) defines a "landlord"; and section 2(h) defines a "tenant".
A tenant, according to section 2(h), includes any person by whom or on whose account or behalf, the rent of any premises is, or but for a special contract would be payable and also any person continuing in possession after the termination of his tenancy, but shall not include any person against whom any decree or order for eviction has been made by a Court of competent jurisdiction.
Section (1) A.I.R. [1964] Cal.
38 4(1) provides that a tenant shall, subject to the provisions of the Act, pay to the landlord: (a) in cases where fair rent has been fixed for any premises, such rent; (b) in other cases, the rent agreed upon until fair rent is fixed.
Section 4(2) lays down that rent shall be paid within the time fixed by contract or in the absence of such contract, by the 15th day of the month next following the month for which it is payable; and under section 4(3), any sum in excess of the rent referred to in sub section
(1) shall not be recoverable by the landlord.
These provisions are in conformity With the pattern which is usually adopted by Rent Restriction Acts.
The rest of the provisions of Chapter II deal with the fixation of standard rent; with the said provisions, we are not concerned in the present appeal.
Chapter III which deals with suits and proceedings for eviction contains section 17 which falls to be considered in the present appeal.
Section 13 which affords protection to tenants against eviction, lays down that notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of my premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the grounds specified by clauses (a) to (k).
Amongst these clauses, it is clause (i) which deals with a case where the tenant has made default in the payment of rent for two months within a period of twelve months or for two successive periods in cases where rent is not payable monthly.
Section 14 imposes a restriction on subletting.
Section 15 prohibits a tenant from receiving any sum or consideration for relinquishment of tenancy; and section 16 provides that the creation and termination of sub tenancies shall be notified in the manner prescribed by it.
That takes us to section 17.
Section 17(1) reads thus : "On a suit or proceeding being instituted by the landlord on any of the grounds referred to in section 13, the tenant shall, subject to the provisions of sub s (2), within one month of me service of the writ of summons on him deposit in Court or pay to the landlord an amount calculated at the rate of rent at which it.was last paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate of eight and one third per cent, per annum from the date when any such amount was payable up to the date of deposit and shall thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate." Section 17(2) deals with cases where there is a dispute as to the amount of rent payable by the tenant.
This provision is not relevant for our purpose.
Section 17(3) provides that if a tenant fails to 39 deposit or pay any amount referred to in sub section
(1) or sub section (2), the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit.
It is under this sub section that the impugned order has been passed.
Section 17(4) lays down: "If a tenant makes deposit or payment as required by sub section
(1) or sub section
(2), no decree or order for delivery of possession of the premises to the landlord on the ground of default in payment of rent by the tenant shall be made by the Court but the Court may allow such costs as it may deem fit to the landlord: Provide that a tenant shall not be entitled to any relief under this sub section if he has made default in payment of rent for four months within a period of twelve months.
Reading section 17(1)by itself, it is clear that when a landlord institutes a suit to recover possession of the rent, though it is not described as such by section 17(1).It is thus clear that whatever may be the cause on which the landlord 's claim for eviction is based, section 17(1) provides that subject to the provisions of sub section
(2), within one month of the service of the writ of summons on him, the tenant is required to deposit in Court the amount in the manner prescribed by it.
If he fails to comply with the requirements of section 17(1), section 17(3) steps in and ' enables the landlord to claim that the defence of the tenant against delivery of possession should be struck out.
If section 17(1) and (3) are read by themselves, there is no doubt that appellant No. 1 has failed to comply with section 17(1), and so, section 17(3) can be legitimately invoked against him.
He, however, contends that m applying section 17(3).
the Court must take into account not only 40 section 17(1)but also section 22(3), and his argument is that if he has deposited the amount of rent under section 21 and the deposit is otherwise valid, then the deposit itself amounts to payment of rent by him to the landlord and as such, no order can be passed against him under section 17(3), because, in law, he has not committed a default in the payment of rent at all; and it is this contention which makes it necessary to consider the impact of the provisions of section 22 on the application of section 17(3) against appellant No. 1.
Let us.
therefore, read section 22 and attempt to decide what is the effect of section 22(3) on cases falling under section 17(1).
As we have already pointed out, section 22 occurs in Chapter IV which deals with deposit of rent.
This Chapter begins with section 21.
Section 21 (1) provides that where the landlord does not accept any rent tendered by the tenant within the time referred to in section 4.
or where there is a bona fide doubt as to the person or persons to whom the rent is payable.
the tenant may deposit such rent with the Controller in the prescribed manner.
Section 21(2) lays down that the deposi shall be accompanied by an application which should set forth "the particulars prescribed by clauses .(a) to (d).
Section 21 (3) requires that the said application shall be accompanied by the prescribed number of copies thereof.
Section 21(4) requires the Controller to send a copy of the application received by him from the tenant to the landlord.
Under section 21(5).
the Controller is authorised to allow the landlord to withdraw the rent deposited with him.
Section 21(6) empowers the forfeiture of the deposit to Government, subject to the conditions prescribed by clauses (a) & (b) of the said sub section.
There are three other sub sections to section 21 which are not relevant for our purpose.
That takes us to section 22 it reads thus: "(1) No rent deposited under section 21 shall be considered to have been validly deposited under that section for purposes of clause (i) of sub section (1) ors.
13, unless deposited within fifteen days of the time fixed by the contract in writing for payment of the rent or, in the absence of such contract in writing, unless deposited within the last day of the month following that for which the rent was payable.
(2) No such deposit shall be considered to have been validly made for the purpose of the said clause if the tenant wailfully or negligently makes any false statement in his application for depositing the rent, unless the landlord has withdrawn the amount deposited before the date of institution of a suit or proceeding for recovery, or possession of the premises from the tenant.
(3) If the rent is deposited within the time mentioned in sub section (1).
and does not cease to be a valid deposit for the reason mentioned in sub section (2), the deposit 41 shall constitute payment of rent to the landlord as if the amount deposited has been valid legal tender of rent if tendered to the landlord on the date fixed by the contract for payment or rent when there is such a contract, or, in the absence of any contract, on the fifteenth day of the month next following that for which rent is payable." Mr. N. C. Chatterjee for the appellants contends that the effect of section 22(3) is that the deposit made by appellant No. 1 shall beheld to constitute payment by him to the landlord, and so, there can be no scope four invoking section 17(3) against him inasmuch/the basis of section 17(3), in substance, is that the tenant whose defence is sought to be struck out has committed a default in the payment of rent.
The object of section 17(1) is to secure the payment of rent by the tenant to the landlord and since that object has been satisfied by the deposit duly made by appellant No. 1 under section 21(1), it would be unreasonable to allow section 17(3) to be invoked against him.
It is common ground that the deposit of rent has been made by appellant No. 1 in compliance with the provisions of section 21 and that it is not rendered invalid under section 22(2).
In other words, Mr. N.C. Chatterjee is entitled to urge his point on the assumption that appellant No. 1 has made a valid deposit under section 21 and is entitled to the benefit of section 22(3).
Can a valid deposit made under section 21 be permitted to be pleaded by a tenant when an application is made against him under section 17,(3)?; that is the question which arises for our decision in the present appeal.
The answer to this question necessarily depends upon the determination of the true scope and effect of the provisions contained respectively in section 17 and section 22.
As a matter of common sense, Mr. N.C. Chatterjee 's argument does sound to be prima facie attractive.
If, in fact, appellant No. 1 has deposited the rent from month to month, it does appear harsh and unreasonable that his defence should be struck out on the ground that he has deposited the rent not in the Court where the suit is pending, but with the Controller.
When appellant No. 1 began to deposit the rent with the Controller, he was justified in doing so; but on the other hand, it is urged against him by Mr. P. K. Chatterjee that as soon as the suit is filed under section 17 and the period prescribed by it has expired, it was obligatory on appellant No. 1 to pay the amount in Court and stop depositing it with the Rent Controller; in other words, his failure to pay the amount in Court incurs the penalty prescribed by section 17(3) notwithstanding the fact that he may have deposited the same amount with the Controller.
The requirements of section 17(1) cannot be said to be satisfied by taking recourse to the provisions of section 22(3); that in substance is the argument for the respondent.
The question thus raised for our decision no doubt lies within a very narrow compass and its answer depends upon a proper construction of sections 17 and 22; but, as we have already indicated, this narrow 42 question has given rise to a sharp conflict of opinion in the Calcutta High Court.
It appears plain that appellant No. 1 finds himself in the present difficult position presumably because, acting upon the view expressed in some of the judgments of the Calcutta High Court, he was advised to deposit the rent with the Controller even after he was sued by the respondent and section 17(1) began to operate against him.
In dealing with this vexed problem, it is relevant to remem her that the two competing provisions occur in two different Chapters and apparently cover different fields.
Chapter IV deals with the question of deposit of rent in general, whereas section 17 in Ch III makes a provision for the payment of the amount mentioned by it in Court after a suit or proceeding has been instituted by the landlord against the tenant.
It is common ground that the Rent Controller is not Court within the meaning of section 17(1).
Prima facie.
a general provision for the deposit of rent prescribed by section 21 would not apply to special cases dealt with by section 17.
The provisions of section 21 and 22 which are general in character, would cover cases which are not expressly dealt with by the special provision prescribed by section 17.
In other words, though a tenant may deposit rent with the Controller under the provisions of sections 21 and 22, as soon as a suit is brought against him by the landlord, section 17 which is a special provision, comes into operation and it is the provision of this special section that must prevail in cases covered by it: that is the first general consideration which cannot be ignored.
Section 17 deals with suits or proceedings in which the landlord claims eviction on any of the grounds referred to in section 13; and as we have already noticed, section 13 which affords protection to the tenant 's eviction, permits the landlord to claim eviction only if he can place his claim on one or the other of the clauses (a) to (k); that is to say, it is 'only if one or other of the conditions prescribed by the said clauses is proved that the landlord can claim to evict his tenant.
Default in the payment of rent is one of these clauses, but there are several other clauses referring to different causes of action on which eviction can be claimed by the landlord, and it is to all these cases that section 17(1) applies.
It is thus clear that normally, when a suit is brought for eviction, the tenant would have to comply with the requirements of section 17(1).
It is only where owing to the refusal of the landlord to accept the rent tendered by the tenant, or where there is a bona fide doubt as to who is entitled to receive the rent.
that the provisions of section 21 empower the tenant to deposit the rent with the Controller.
In a11 other cases, if the tenant was paying rent to the landlord and is faced with a suit for eviction, section 17(1) will unambiguously apply and the amount of rent will have to be paid in Court as required by it.
It is also dear that if a tenant has been depositing the rent validly and properly under section 21, a suit against him under section 13(1)(i) cannot be filed.
Section 13(1)(i) authorises the landlord to claim eviction of his 43 tenant on the ground that he has made a default in the payment of rent as described by it.
But such a default cannot be attributed to a tenant who has been depositing the rent with the Controller properly and validly under section 21.
Such a valid payment amounts to payment of rent by the tenant to the landlord under section 22(3), and so a tenant who has been making these deposits cannot be sued under section 13(1)(i).
It is true that the complication of the present kind arises where a tenant who has been making a valid deposit under section 21 is sued for ejectment on grounds other than section 13(1)(i), and section 17(1) comes into operation against him.
In such a case, if the special provisions prescribed by section 17(1) apply to the exclusion of sections 21 & 22 the fact that a deposit has been made by the tenant can be no answer to the application made by the landlord under section 17(3) In this connection, it is necessary to bear in mind the fact that section 17(1) is really intended to give a benefit to the tenant who has committed a default in the payment of rent.
The first part of section 17(1) allows such a tenant to pay the defaulted amount of rent together with the prescribed interest in Court within the time prescribed, and such a tenant would not be evicted if he continues to deposit the amount in Court, during the pendency of the suit as required by the latter part of section 17(1).
In our opinion, the scheme of section 17(1) is a complete scheme by itself and the Legislature has intended that in suits or proceedings to which section 17(1) applies, the payment of rent by the tenant to landlord must be made in the manner prescribed by section 17(1).
Even in cases Where the tenant might have been depositing the rent with the Controller under section 21, he has to comply with section 17(1) before the period prescribed by section 17(1) has elapsed.
It is significant that the requirement to deposit the amount in Court comes into force within one month of the service of the writ of summons on the tenant.
In other words,appellant No. 1 was justified in depositing the rent even after the present suit was filed until one month from the service of the writ of summons of the suit had elapsed.
The Legislature has taken the precaution of giving the tenant one month 's period after the service of the writ of summons on him before requiring him to deposit the amount in Court.
The object obviously appears to be that when a suit or proceeding has commenced between the landlord and the tenant for ejectment, and the tenant has received notice of it,the payment of rent should be made in Court to avoid any dispute in that behalf.
It is also relevant to remember that in the matter of payment of rent in Court, section 17(1) has provided that the amount to be paid in future shall be paid by the 15th of each succeeding month, and that means that the date for the payment of the amount has been statutorily fixed which is distinct from the requirement of section 4.
Section 4(2) provides for the payment of rent within the time fixed 44 by contract, but section 17(1) requires the payment to be made by the 15th of each succeeding month whatever may be the contract.
If, according to the contract, rent was payable quarterly, or six monthly, or even annually, section 17(1) supersedes that part of the contract and requires the rent to be paid, month by month, by the 15th of each succeeding month.
The position under sections 21 & 22 is, however, substantially different on this point.
Section 21 (I) in terms requires the deposit to be made within the time referred to in section 4, and that means where there is a contract made by the parties in relation to the time for the payment of rent, it is on the contracted date that the rent has to be deposited under section 21.
The scheme of the three clauses of section 22 clearly is integrally connected with section 21.
These clauses deal with deposits made under section 21.
In fact it would be ,difficult to read section 22(3) independently of section 22(1) and (2); all the three clauses of section 22 must be read together, and so, the time for making the deposit for the purpose of section 22(3) would be the time prescribed by contract and not the statutory time provided by section 17(1).
It is clear that the deposit of rent made before the Controller under section 21 is based on the contractual obligation of the tenant to pay the rent,and he makes the deposit because the landlord is not receiving the rent or there is a dispute as to who the real landlord is.
On the other hand, the deposit of rent made in Court under section 17(1) is the result of a statutory obligation imposed by the said sub section; no doubt, the amount required to be deposited may be the amount for which the parties may have entered into a contract, but the manner and the mode in which the deposit is required to be made in Court are the result of the statutory provision, and in that sense they constitute a statutory obligation.
That is another feature which distinguishes the deposits covered by sections 21 and 22 from the deposits prescribed by section 17(1).
Mr. N.C. Chatterjee argued that if the majority view of the Calcutta High Court is upheld, it may lead to some anomalies.
As an illustration, he asked us to consider the case of a suit failing under section 17(1) which ultimately fails and is dismissed.
In such a suit, the rent would have to be deposited in Court by the tenant as required by section 17(1); but if the suit fails, what happens to the rent? Would the tenant be treated as being a defaulter, or would the tenant who is required to make a deposit in Court as required by section 17(1) be compelled as a precaution, to make another deposit with the Controller in cases where the .landlord had refused to accept rent before he flied the suit? We are not impressed by this argument.
In our opinion, if the tenant had deposited the rent in Court as required by section 17(1), he could not be treated as a defaulter under any provision of the Act.
Payment in Court made by the tenant under the statutory obligation imposed on him would, in law, be treated as payment of rent made by him to the landlord.
45 Mr. N.C. Chatterjee also relies on the fact that section 24 in terms provides that the acceptance of rent in respect of the period of default in payment of rent by the landlord from the tenant shall operate as a waiver of such default, when there is no proceeding pending in Court for the recovery ,of possession of the premises.
The argument is that where the Legislature intended to confine the operation of a specified provision to cases where there is no proceeding pending in Court, it has expressly so stated.
In our opinion.this argument is not well founded.
Section 24 merely indicates that the Legislature thought that it was necessary to make that provision in order to avoid any doubt as to whether acceptance of rent would amount to waiver or not in cases where no proceeding was pending in Court.
On the other hand, from the wording of section 24 it may be permissible to suggest that the Legislature did not think of providing for the consequence of acceptance of rent after the commencement of a proceeding for the recovery of possession.
because it knew that the said matter would be covered by section 17(1).
Besides, section 22(2) gives some indication that the provisions of section 22 are not intended to be applied when suits or proceedings have commenced between the landlord and the tenant.
It would be noticed that section 22(2) says that No. deposit shall be considered to have been validly made for the purposes of section 22(1) if the tenant wailfully or negligently makes any false statement in his application for depositing the amount unless the landlord has withdrawn the amount deposited before the date of institution of a suit or proceeding for recovery of possession ,of the premises from the tenant.
This last clause may suggest that the provisions of all the clauses of section 22 may not be applicable after the suit or proceeding has commenced.
As we have already pointed out, the question raised for our decision in the present appeal really centers round the determination of the areas covered by section 17 on the one hand, and sections 21 and 22 on the other; and though it may be conceded that the words used in the respective sections are not quite clear, on the whole the scheme evidenced by them indicates that the Legislature wanted section 17(1) to control the relationship between the landlord and the tenant as prescribed by it once a suit or proceeding for ejectment was instituted and a period of one month from the service of the writ of summons on the defendant had expired.
We have carefully considered the reasons given by the two.
learned Judges who delivered the minority judgments in the Siddheswar Paul 's(1) case, but we have come to the conclusion that the majority view on the whole correctly represents the true scope and effect of section 17, as distinguished from sections 21 and 22.
In the result, the appeal fails and must be dismissed.
There would be no order as to costs.
(1)A.I.R. L/B(D)2SCI 5 46 Before parting with this appeal, however, we would like to add that appellant No. 1 has to submit to the penalty prescribed by section 17(3) apparently because.
acting upon the opinion expressed by some of the learned Judges of the Calcutta High Court, he was advised to continue to deposit the rent with the Controller even after the present suit was filed against him.
We do not know whether there are many other cases of the same type.
In case there are several other cases of this type, that would really mean unjust hardship against tenants who, in substance, have not committed default in the matter of payment of rent, and yet would be exposed to the risk of ejectment by virtue of the application of section 17(3).
In our opinion, such tenants undoubtedly deserve to be protected against ejectment.
We trust the Legislature will consider this matter and devise some means of giving appropriate relief to this class of tenants.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The appellant and respondent were the tenant and owner respectively of premises to which the West Bengal Premises Tenancy Act, 1956, applied.
The respondent filed a suit, under section 13 of the Act, for the eviction of the appellant on various grounds.
The appellant denied the allegations and contested the suit.
Before the suit was filed, the appellant was depositing the rent for the premises with the Rent Controller under section 21 of the Act, because, the respondent was not prepared to accept the rent.
The appellant continued to deposit the rent with the Rent Controller even after the suit was filed and the summons was served.
Alleging that as soon as the suit was filed and a period of one month from the date of service of the summons on the appellant had expired, it was obligatory on the appellant under section 17(1), to pay the amount in court and not with the Rent Controller, the respondent filed an application for striking out the defence of the appellant in the suit.
The application was allowed by the trial court.
The appellant 's revision petition to the High Court was dismissed, following the decision of a Special Bench of the High Court in Siddheswar Paul vs Prakash Chandra Dutta, A.I.R. 1964, Cal. 105.
In the appeal to this Court it was contended that the majority view in Siddheswar Paul 's case that section 22(3) does not apply to cases falling under section 17(1) was wrong, because, the deposit made by the appellant under section 21 with the Rent Controller constituted payment of rent by him to the landlord.
under section 22(3); and therefore, there was no scope for invoking section '17(3) against the appellant inasmuch as the basis of section 17(3) was that the tenant whose defence was sought to be struck out had committed a default in the payment of rent.
HELD: Section 17(1) is a complete scheme by itself and the legislature has intended that in suits or proceedings to which the section applies the payment of rent by the tenant to the landlord must be made in the manner prescribed by the section.
The legislature wanted the section to control the relationship between the landlord and the tenant as prescribed by it.
once a suit or proceeding for ejectment was instituted and a period of one month from the date of service of the writ or summons on the defendant had expired.
Even in cases where the tenant might have been depositing the rent with the Controller under section 21, he has to comply with section 17(1) before the period prescribed by the section had elapsed, because, as soon as a suit is filed against the tenant by the landlord for eviction, section 17 which is a special provision, comes into operation, and it is the provisions of that special section that must prevail in cases governed by it.
The object is.
when a suit or proceeding has commenced between the landlord and the tenant for ejectment and the tenant had received notice of it, the payment of rent should be made in court to avoid any disputes in that behalf.
The majority view in Siddheswar Paul 's case correctly represents the true scope and effect of section 17.
as distinguished from sections 21 and 22.
[42E; 431 F; 45G H] 35 Therefore, even the valid deposit made under section 21 could not be permitted to be pleaded by the tenant when the application was made against him under section 17(3).


judgement:
ppeal No. 652 of 1964, Appeal from the judgment and order dated May 7, 1963 of the Rajasthan High Court in D.B. Civil Misc.
Writ Petition No. 157 of 1962.
G.C. Kasliwal, Advocate General for Rajasthan.
K.K. Jain, for the appellants.
M.D. Bhargava and B.D. Sharma, for the respondent.
The Judgment of the Court was delivered by Siki, J.
This appeal by certificate of fitness granted by the Rajasthan High Court is directed against its judgment dated May 7, 1963, quashing the order of assessment dated March 5, 1962, made by the Sales Tax Officer, Jodhpur City, in so far as it levied sales tax on the turnover of Rs. 23,92,252.75 np.
The respondent, M/s Shiv Ratan G. Mohatta, which is a partnership firm having its head office at Jodhpur, hereinafter referred to as the assessee, claimed before the Sales Tax Officer that they were not liable to be assessed to sales tax in respect of the above turnover because, firstly, the assessee was not a dealer within section 2(f) of the Rajasthan Sales Tax Act (Rajasthan Act XXlX of 1954) with respect to this turnover, and secondly, because the sales were in the course if import within article 286 (1)(b) of the Constitution.
Although the Sales Tax Officer set out the facts of the case relating to the second ground, he deemed it sufficient to assess this turnover on the ground that the assessee was a dealer within section 2(f) of the Rajasthan Sales Tax Act, without adverting to the second ground.
The facts on which the assessee had relied upon to substantiate his second ground were these.
The Zeal Pak Cement Factory, Hyderabad (Pakistan), hereinafter called the Pakistan Factory, manufactured cement in Pakistan.
The Pakistan Industrial Development Corporation, hereinafter called the Pakistan Corporation, entered into an agreement with M/s Milkhiram and Sons (P) Ltd., Bombay, for the export of cement manufactured in Pakistan to India.
The State Trading Corporation of India entered into an agreement with the said M/s Milkhiram & Sons for the purchase of, inter alia, 35,000 long tons of cement to be delivered to it F.O.R. Khokhropar in Pakistan, on the border of Rajasthan.
The State Trading Corporation appointed the assessee as its agent, broadly speaking, to look after the import and the sale of the imported cement.
The modus operandi adopted by the assessee for the sale of the cement was as follows.
It would obtain from a buyer in Rajasthan an order under an agreement, a sample of which is on the record 73 The agreement fixed the price and the terms of supply.
By one clause the assessee disclaimed any responsibility regarding delay in dispatch and non receipt of consignment or any loss, damage or shortage in transit due to any reason whatsoever.
The agreement further provided that "all claims for loss, damage or shortage, etc., during transit will lie with the carriers and our payments are not to be delayed on any such account whatsoever.
" It was further provided in the agreement that the dues were payable in advance in full, or 90% in advance and the balance within 15 days of billing plus sales tax and other local taxes.
Clause 6 of the agreement is in the following terms: "A Post Card Loading Advice will be sent to you by the Factory as soon as the wagons are loaded in respect of your orders, and it will be your responsibility to arrange for unloading the consignment timely according to Railway Rules.
Ourselves.
and the suppliers will not be responsible for demurrage etc.
on any account whatsoever.
If the consignment reaches earlier than the Railway Receipt, it is the responsibility of buyer to arrange for and get the delivery timely against indemnity bond etc.
All the Railway Receipts etc. will be sent by registered post by the Suppliers in Pakistan.".
After this agreement had been entered into, the assessee would send despatch instructions to the Pakistan Corporation.
These instructions indicated the name of the buyer consignee and the destination, and provided that the railway receipt and D/A should be sent by registered post to the consignee.
These instructions were sent with a covering letter to the Pakistan Corporation requesting that these instructions be passed on to the Pakistan Factory for necessary action.
The Pakistan Corporation would then forward these despatch instructions to the Zeal Pak Cement Factory.
Later, the Pakistan Factory would advise the consignee that they had "consigned to the State Bank of India, Karachi, the particular quantity as per enclosed railway receipt and invoice.
" The State Bank of India, Karachi, would endorse the railway receipt in favour of the consignee and send it to him by post.
The consignee would take delivery either by presentation of the railway receipt or by giving indemnity bond to the Station Master undertaking to deliver the railway receipt on its receipt.
The Sales Tax Officer did set out most of these facts and the contentions of the assessee in the assessment order but disposed of the case with the following observations: "All the above went to prove that the assessee was an Agent of the non resident dealer for the supplies in the State.
The Assessee was an importer and hence submitted an application to the Custom Authority for the same.
It booked orders and issued sale bills.
Under the terms of an agreement of appointment of Agent, sale was to be effec 74 ted by the Agent.
Again while obtaining orders from the buyers under condition 5 Sales Tax was to be paid by the buyers to the assessee.
Thus to all intents and purposes the assessee is a dealer who is liable for payment of Sales Tax to the State.
They have rightly collected this amount from the buying dealers and retained with them.
This should come to the Government.".
We can find no discussion in the order on the question raised by the assessee that the sales were made in the course of import within article 286(1)(b) of the Constitution.
The assessee then filed a petition under article 226 of the Constitution and raised two contentions before the High Court, namely, (1) that the Sales Tax Officer failed to consider the impact and the effect of article 286(1)(b) on the facts of the case, and (2) that the Sales Tax Officer illegally held that the petitioner for all intents and purposes was a dealer liable to pay sales tax.
The State raised an objection to the maintainability of the petition on the ground that the petitioner should have availed of the alternative remedy of appeal provided under the Rajasthan Sales Tax Act, but the High Court overruled this objection on the ground that "the contention of the petitioner is that in view of article 286(1)(b) of the Constitution, the respondent had no jurisdiction to assess the petitioner to pay the sales tax on the sale of goods in the course of the import into the territory of India", and that even if there was no total lack of jurisdiction in assessing the petitioner to pay sales tax.
the principle enunciated in A.V. Venkateswarn v Ram chand Sobharaj Wadhwani (1) applied, and it was a case which should not be dismissed in litnine.
Then the High Court proceeded to deal with the merits of the case.
It first dealt with the question whether the petitioner was a dealer within the meaning of section 2(f) of the Rajasthan Sales Tax Act, and came to the conclusion that the petitioner must be deemed to be a dealer within the said section 2(f).
Then it proceeded to deal with the question whether the sales had taken place in the course of import.
The High Court held that in the circumstances of the case these sales had not occasioned the movement of goods but it was the first sale made by M/s Milkhiram and Sons to the State Trading Corporation which had occasioned the movement of goods.
Secondly, it held that in the circumstances of the case "the property in goods after the delivery had been taken by the petitioner on behalf of the State Trading Corporation passed to the State Trading Corporation and simultaneously to the ultimate buyers.
Thus the property in the (1) ; 75 goods passed to the ultimate buyers in Rajasthan when the goods had not reached the territory of India and were in course of import.
In view of the authority of their Lordships of the Supreme Court in J. V. Gokal and Co. (Private) Ltd. vs The Assistant Collector of Sales Tax (Inspection) & Others, ( '), it must be taken that the sale took place when the goods were in the course of the import and they should not be liable to the payment of the Sales Tax by virtue of article 286(1)(b).".
In the result, the High Court quashed the order of assessment in so far as it sought to levy tax on the turnover in dispute.
The Sales Tax Officer, Jodhpur, and the State of Rajasthan having obtained certificate of fitness from the High Court filed this appeal.
The learned Advocate General has raised two points before us: First, on the facts of this case the High Court should have refused to entertain the petition, and secondly, that it has not been established that the cement was sold in the course of import within article 286(1)(b).
Regarding the first point, he urges that an appeal lay against the order of the Sales Tax Officer; no question of the validity of the Sales Tax Act was involved and the taxability of the turnover depended on where the property passed in each consignment.
This involved consideration of various facts and, according to him.the crucial facts had not been brought on the record by the assessee on whom lay the onus to establish that the sales were in the course of import.
He says that the assessee should have proved that each railway receipt was endorsed by the State Bank of India, Karachi, to the buyer before each consignment crossed the frontier.
We are of the opinion that the High Court should have declined to entertain the petition.
No exceptional circumstances exist in this case to warrant the exercise of the extraordinary jurisdiction under article 226.
It was not the object of article 226 to convert High Courts into original or appellate assessing authorities whenever an assessee chose to attack an assessment order on the ground that a sale was made in the course of import and therefore exempt from tax.
It was urged on behalf of the assessee that they would have had to deposit sales tax, while filing an appeal.
Even if this is so.
does this mean that in every case in which the assessee has to deposit sales tax, he can bypass the remedies provided by the Sales Tax Act? Surely not.
There must be something more in a case to warrant the entertainment of a petition under article 226, something going to the root of the jurisdiction of the Sales Tax Officer, something to show that it would be a case of palpable injustice to the assessee to force him to adopt the remedies provided by the Act.
But as the High Court chose to entertain the petition, we are not inclined to dismiss the petition on this ground at this stage.
(1)[1960] 2 S.C.R. 852.
76 Regarding the second point, the learned Advocate General .argues that the onus was on the assessee to bring his case within article 286(1)(b) of the Constitution in respect of the sales to the various consignees.
He says that there is no evidence on record as to when the State Bank of India endorsed the railway receipt in favour of the ultimate buyer in respect of each consignment and without this evidence it cannot be said that the title to the goods passed to the ultimate buyer at Khokhropar or in the course of import.
He further urges that it would have to be investigated in each case as to when the State Bank endorsed the railway receipt and when the goods crossed the customs barrier.
He says that it is not contested that the ultimate buyer took delivery of goods without producing the railway receipt by virtue of special arrangements entered into with the railway, and according to him.
it is only when the delivery was taken by the buyer in Rajasthan that the title passed.
By that time, according to him, the course of import had ceased.
We do not think it necessary to consider the various arguments addressed by the learned Advocate General or the soundness of the view of the High Court on this point, because we are of the opinion that the High Court should not have gone into this question on the facts of this case.
The Sales Tax Officer had not dealt with the question at all, and it is not the function of the High Court under article 226, in taxing matters, to constitute itself into an original authority or an appellate authority to determine questions relating to the taxability of a particular turnover.
The proper order in the circumstances of this case would have been to quash the order of assessment and send the case back to the Sales Tax Officer to dispose of it according to law.
Under the Rajasthan Sales Tax Act, and other Sales Tax Acts, the facts have to be found by the assessing authorities.
If any facts are not found by the Sales Tax Officer, they would be found by the appellate authority.
and it is not the function of a High Court to find facts.
The High Court should not encourage the tendency on the part of the assesses to rush to the High Court after an assessment order is made.
It is only in very exceptional circumstances that the High Court should entertain petitions under article 226 of the Constitution in respect of taxing matters after an assessment order has been made.
It is true, as said by this Court in A. V. Venkateswarn vs Ramchand Sobharaj Wadhwani(1) that it would not be .desirable to lay down inflexible rules which should be applied with rigidity in every case, but even so when the question of taxability depends upon a precise determination of facts and some of the facts are in dispute or missing, the High Court should decline to decide such questions.
It is true that at times the assessee alleges some additional facts not found in the assessment order and the State, after a fresh investigation, admits these facts, but in a petition under article (1)[1962] 1 S.C.R. 753. 77 226 where the prayer is for quashing an assessment order, the High Court is necessarily confined to the facts as stated in the order or appearing on the record of the case.
In this case, as already indicated, we have come to the conclusion that the High Court should not have decided disputed questions of fact, but should merely have quashed the assessment order on the ground that the Sales Tax Officer had not dealt with the question raised before him and remanded the case.
Accordingly.
we allow the appeal, set aside the order of the High Court, quash the assessment order in so far as it relates to the. turnover of Rs. 23,92.252.75 up, and remit the case to the Sales Tax Officer to decide the case in accordance with law.
He will find all the facts necessary for the determination of the question and come to an independent conclusion untrammeled by the views expressed by the High Court.
We may make it clear that we are not expressing any view whether the finding of the High Court that the property in the goods passed simultaneously at Khokhropar to the State Trading Corporation and the ultimate buyer is correct or not.
There would be no order as to costs in this appeal.
Appeal allowed.

summary/full:
The Sales Tax Officer rejected the assessed 's claim that he was not liable to be assessed to sales tax in respect of certain .sales of cement imported from Pakistan because (i) he was not a. dealer within the meaning of s.2(f) of the Rajas than Act 29 of 1954, and (ii) the sales in question were in the course of the import within the meaning of article 286(1)(b) of the Constitution.
In the order of assessment, there was no discussion of the question of applicability of article 286(1) (b).
The assessee therefore filed a petition under article 226 challenging the assessment order on the grounds taken before the Sales Tax Officer and also claiming that the latter had failed to consider the impact and effect of article 286(1)(b)on the facts of the case.
The State objected to the maintainability of the petition on the ground that the petitioner should have availed of the alternative remedy of appeal provided under the Rajasthan Sales Tax Act, but the High Court overruled this objection for the reason, inter alia, that the petitioner had challenged the appellant 's jurisdiction to assess him to.
sales tax in view of the.
provisions of article 286(1) (b).
Upon dealing with the merits of the case, the High Court held that on the facts of the case it was clear that the sales in question took place when the goods were in the course of import and therefore, by virtue of article 286(1)(b) were not liable to sales tax.
The court therefore quashed the order of assessment.
On appeal to this Court, it was contended on behalf of the State that the High Court should have refused to entertain the petition as many of the crucial facts had not been brought on the record by the respondent, and further more, it was not established that the cement was sold in the course of import into India.
HELD: The High Court should not have decided the disputed questions of fact, but should merely have quashed the assessment order on the. ground that the Sales Tax Officer had not dealt with the question raised before him and remanded the case.
[77 B] OBITER: The High Court should have declined to entertain the petition, as in this case there were no exceptional circumstances to warrant the exercise of the extraordinary jurisdiction under article 226.
It was not the object of article 226 to convert High Courts into original or appellate assessing authorities whenever the assessee chose to attack an assessment order on the ground that a sale was made in the course of import and was therefore exempt from tax.
The fact that an assessee might have to deposit sales tax when filing an appeal could not in every case justify his bypassing the remedies provided by the Sales Tax Act.
There must be something more in a case to warrant the entertainment of a petition under article 226, something going to the root of the jurisdiction of the Sales 72 Tax Officer, something to show that it would be a case of palpable injustice to the assessee to force him to adopt the remedies provided by the Act.
[75 G, H] A.V. Venkatesweran vs Ramchand Sobhraj Wadwani, A.I.R. , referred to.


judgement:
Appeal No. 865 of 1964.
930 Appeal by special leave from the judgment and order dated February 14, 1964 of the Bombay City Civil Court at Bombay in Appeal No. 86 of 1963.
M. C. Setalvad, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant.
B. K. Bhattacharjee and section N. Mukherjee, for the respondent.
The Judgment of the Court was delivered by Hidayatullah, J.
In this appeal by special leave against the judgment and order of the Principal Judge, City Civil Court, Bombay dated February 14, 1964, the only question is whether the delegation by the Commissioner, Municipal Corporation of his functions under sections 105B to 105E to certain officers of the Corporation was valid and proper.
This question arises in the following circumstances : One Govind Hari was a monthly tenant of room No. 23 of a chawl at Chandanwadi.
After his death in 1961 the tenancy devolved on his widow Anusuyabai, who took in a boarder.
The chawl belonged to the Municipal Corporation and proceedings were taken to eject Anusuyabai and the boarder under Chapter VI A of the Municipal Corporation Act.
These proceedings were initiated by one of the officers to whom the powers of the Commissioner were delegated by him under section 68 of the Act.
After due enquiry the officer passed an order evicting these persons.
An appeal was filed under section 105F of the Act before the Bombay City Civil Court.
In that appeal it was held that the delegation was not proper inas much as the judicial functions of the Commissioner under sections 105B to 105E had been delegated to be exercised under the Commissioner 's control and subject to his revision.
The learned Judge pointed out that judicial or quasi judicial power could not ordinarily be delegated and, in any event, it could not be delegated so that the control over the decision was kept by the Commissioner.
He, therefore, held that the officer who had passed the order was not properly invested with jurisdiction and the order was thus a nullity.
The Bombay Municipal Corporation Act is an Act of 1888 and it has been amended frequently.
Section 68 is one of the original sections and it provides as follows : "68.
Municipal officers may be empowered to exercise certain of the powers, etc.
of the Commissioner.
931 (1) Any of the powers, duties or functions conferred or imposed upon or vested in the Commissioner by any of the sections, sub sections or clauses mentioned in sub section (2) may be exercised, performed or discharged, under the Commissioner 's control and subject to his revision and to such conditions and limitations, if any, as he shall think fit to prescribe, by any municipal officer whom the Commissioner generally or specially either by name or by virtue of office, empowers in writing in this behalf; and in each of the said sections, sub sections and clauses the word "Commissioner" shall, to the extent to which any municipal officer is so empowered, be deemed to include such officer.
(2) The sections, sub sections and clauses of this Act referred to in sub section (1) are the following namely Section 105B. " 105C. " 105D. " 105E. A reference to sections 105B, 105C, 105D and 105E was inserted by the Maharashtra Act XIV of 1961.
These sections are in Chapter 6A which was also newly added by the same Act.
It is not necessary to refer to these sections, except a portion from section 105B which brings into prominence the action taken by the Corporation against the respondents : "105B. Power to evict person from corporation premises.
(1) Where the Commissioner is satisfied (a) that the person authorised to occupy any corporation premises has, whether before or after the commencement of the Bombay Municipal Corporation (Amendment) Act, 1960, (i) 932 (ii) sub let, contrary to the terms or condi tions of his occupation, the whole or any part of such premises; or the Commissioner may notwithstanding anything contained in any law for the time being in force, by notice order that person, as well as any other person who may be in occupation of the whole or any part of the premises, shall vacate them within one month of the date of the service of the notice.
" It will be noticed that section 68 was originally intended to cover very different matters because Chapter 6A could not have been in contemplation.
When Chapter 6A was added and a reference to sections 105B to 105E was included in section 68, the wording of that section became applicable to the powers exercisable under sections 105B to 105E, even though that wording, taken literally, is somewhat inapt to cover delegation of judicial power.
No question has been raised that any of the amendments is ultra vires so the words of section 68 must be reasonably construed.
It goes without saying that judicial power cannot ordinarily be delegated unless the law expressly or by clear implication permits it.
In the present case the amendment of section 68 by inclusion of delegation of the functions of the Commissioner under sections 105B to 105E does indicate the intention that the judicial or quasi judicial powers contained in Chapter VIA were expressly intended to be delegated.
To the delegation as such there can be no objection.
What is objected to is the provision, both in the section as well as in the order of delegation, that the exercise of the function is to be under "the Commissioner 's control" and "subject to his revision".
These words are really appropriate to a delegation of administrative functions where the control may be deeper than in judicial matters.
In respect of judicial or quasi judicial functions these words cannot of course bear the meaning which they bear in the delegation of administrative functions.
When the Commissioner stated that his functions were delegated subject to his control and revision it did not mean that he reserved to himself the right to intervene to impose his own decision upon his delegate.
What those words meant was that the Commissioner could control the exercise administratively as to the kinds of cases in which the delegate 933 could take action or the period or time during which the power might be exercised and so on and so forth.
In other words, the administrative side of the delegate 's duties were to be the subject of control and revision but not the essential power to decide whether to take action or not in a particular case.
This is also the intention of section 68 as interpreted in the context of the several delegated powers.
This is apparent from the fact that the order of the delegate amounts to an order by the Commissioner and is appealable as such.
If it were not so the appeal to the Bombay City Civil Court would be incompetent and the order could not be assailed.
The order of the delegate was the order of the Commissioner and the control envisaged both in section 68 and the order of delegation was not control over the decision as such but over the administrative aspects of cases and their disposal.
No allegation has been made that the Commissioner intervened in the decision of the case or improperly influenced it.
In these circumstances the order impugned in the appeal cannot be sustained.
We allow the appeal and set aside the order of the Bombay City Civil Court and restore the order of the officer who exercised powers under section 105B of the Act, but make no order about costs.
Appeal allowed.

summary/full:
One C a tenant of a Chawl belonging to the Municipal Corporation of Bombay died, and his widow on whom the tenancy devolved, took in a boarder.
Proceedings by the Corporation under Chapter VI A of the Municipal Corporation Act for their ejectment were initiated by an officer to whom the commissioner had delegated his powers under section 68 of the Act.
After due enquiry the officer passed an order evicting C 's widow and her boarder.
In an appeal filed under section 105F of the Act before the Bombay City Civil Court it was held that the delegation of the Commissioner 's power was not proper inasmuch as the judicial functions of the Com missioner under sections 105B to 105E had been delegated to be exercised under the Commissioner 's control and subject to his revision, and consequently the order of ejectment was without jurisdiction.
The Corporation appealed, by special leave, to the Supreme Court.
No question as to the validity of the law was raised.
It was only contended that judicial power was delegated with administrative control over the delegates decision.
HELD :(i) Section 68 was originally intended to cover very different matters because Chapter VI A could not then have been in contemplation.
When Chapter VI A was added and a reference to sections 105B to 105E was included in section 68, the wording of that section became applicable to the powers exercisable under sections 105B to 105E, even though that wording, taken literally, is somewhat inapt to cover delegation of judicial power.
[932 D] (ii) To the delegation of judicial power as such there can be no objection when the law either expressly or by necessary implication permits it.
In the present case the amendment of section 68 by inclusion of the delegation of the function of the Commissioner under sections 105B to 105E does indicate the intention that the judicial and quasi judicial powers contained in Chapter VI A were expressly intended to be delegated.
The words "the Commissioner 's control" and "subject to his revision" in section 68, as well as in order of delegation, are really appropriate to a delegation of administrative functions.
They must be reasonably construed.
In respect of judicial or quasi judicial functions these words cannot bear the meaning which they bear in the delegation of administrative functions.
When the Commissioner stated that his functions were delegated subject to his control and revision it did not mean that he reserved to himself the right to intervene to impose his own decision upon his delegate.
The control envisaged was not control over the decision as such but over the administrative aspects of cases and their disposal and the delegation was valid.
[932 F 933 B] The order of the Bombay City Civil Court could not therefore be sustained.