judgement:
ivil Appeal No. 1369 of 1990.
From the Judgment and Order dated 16.6.1989 of the Bombay High Court in W.P. No. 2513 of 1989.
Anil B. Diwan, Y.R. Naik, section Thananjayan and K.R. Choud hary for the Appellant.
Dr. Y.S. Chitale, Y.T. John, C.V. Francies, C.V. Rappai, 3.
Prakash and V.K. Purwani for the respondents.
The Judgment of the Court was delivered by AHMADI, J.
Special leave granted.
Can a licensee occupying a flat in a tenant co partner ship society be evicted therefrom under Sub Section (1) of Section 91 of the Maharashtra Co operative Societies Act, 1960 (Act No. XXIV of 1961), hereinafter called 'the Socie ties Act ', notwithstanding the protection extended by Sec tion 15A of the Bombay Rents, Hotels & Lodging House Rates Control Act, 1947 ( 'Act No. LVII of 1947), hereinafter called 'the Rent Act ', as amended by Act XVII of 1973 or whether such proceedings would be governed by Section 28 of the Rent Act? That is the question which arises for our determination in he context of the fact that the appellant licensee claimed to be in actual possession of the flat on 1st February, 1973, under a subsisting licence, albeit without the express permission of the society.
The actual matrix in which this question needs to be answered may be briefly stated as under: The Vishwa Co operative Housing Society Ltd., respondent No. 1, hereinafter called 'the Society ', was registered sometime in 1948 ruder the provisions of the Bombay Co operative Societies Act, 1925 and is deemed to be registered by virtue of Section 166(2) under the present Societies Act.
On 2nd March, 1949 one Laxmi Devi Kejriwal was admitted to the membership of the society and was allotted Flat 865 No. 25 of the multi storeyed building known as 'Vishwa Mahal ' situate on "C" Road, Churchgate, Bombay 20.
The said Laxmi Devi gifted her interest as the allottee member of the society to her brother Ambica Prasad Sharma of Udaipur.
One D.P. Kejriwal who was looking after this flat inducted the appellant therein w.e.f.
1st June, 1957 under a leave and licence agreement on a licence fee of Rs.400 per month.
While the appellant was in actual occupation of the flat, the allottee member Ambica Prasad Sharma transferred his interest therein to his brother Hari Kumar Sharma, respond ent No. 2, sometime in July 1967.
The said respondent was admitted to the membership of the society on 15th July, 1967.
It appears that even after this transfer D.P. Kejriwal continued in management of the flat and collected and re ceived the licence fee from the appellant till the middle of 1979 when he received a letter from respondent No. 2 claim ing onwership of the flat.
The appellant then filed an interpleader suit in the Court of Small Causes, Bombay, seeking a direction to whom he should pay the rent for the flat occupied by him.
This interpleader suit was disposed of on 21st June, 1983.
Immediately thereafter respondent No. 2 deposited Rs.5,500 on 28th June, 1983 with respondent No. 1 society towards the society 's cost to initiate proceedings for eviction of the appellant from the flat in question under Section 91(1) of the Societies Act.
Two days later the respondent No. 2 filed a suit for the eviction of the appel lant from the flat in the Court of Small Causes, Bombay.
After respondent No. 2 deposited Rs.5,500, the society passed a resolution on 5th July, 1983 to initiate proceed ings under Section 91(1) of the Societies Act for the evic tion of the appellant from the flat in question.
Thereupon the society served the appellant with a notice to quit dated 11th July, 1983 and thereafter instituted the action under Section 91(1) of the Societies Act.
The appellant raised several defences, two of which may be noticed.
He firstly contended that the so called document of leave and licence in fact created a lease and, therefore, the proceeding under Section 91(1) of the Societies Act was not competent.
Secondly he contended that even if it is assumed that the relationship was of a licensor and a licen see under the deed, since he was in actual occupation and possession of the flat in question under a subsisting li cence right from 1957 to 1st February, 1973 he was a statu tory tenant under Section 15A of the Rent Act and was, therefore, entitled to protection from eviction till a competent court granted eviction on any of the grounds set out in Sections 12 or 13 of the Rent Act.
He, therefore, contended that the Cooperative Court had no jurisdiction under Section 91(1) of the Societies Act and the proper court to approach was 866 the one under Section 28 of the Rent Act, which the respond ent No. 2 had in fact approached.
The Cooperative Court came to the conclusion that the relationship created under the document of leave and licence was that of a licensor and a licensee.
On the question of tenancy under Section 15A the Court concluded as under: "So far as second part of the issue regarding opponent No. 2 contending to be tenant of opponent No. 1 is concerned, the opponent No. 1 in his evidence has mentioned to the effect that after his becoming a member of the society he initially accepted the opponent No. 2 as his licensee and allowed him to occupy the suit flat temporarily on his promise to vacate when required by opponent No. 1.
He has further stated that he filed the case in the Small Causes Court for ejectment of opponent No. 2 in his own right as advised by his Advocate in that case.
He has also stated that he accepted Opponent No. 2 as his tenant because after 1.2.1973 there is change in law and so he had to accept opponent No. 2 as his tenant.
In view of this evidence I have to give a finding in the affirmative in respect of part of the issue whether opponent No. 2 proves that he is a tenant of opponent No. 1".
In other words the Cooperative Court came to the conclusion that the appellant was a tenant of respondent No. 2 under Section 15A of the Rent Act since he was in occupation of the flat on 1st February, 1973.
After finding the appellant to be a tenant of respondent No. 2 under section 15A, the Cooperative Court proceeded to observe as under: "Now regarding the effect of findings on the parts of issue No. 2 as mentioned hereinabove, the position in law is quite clear that even though the non member occupant could at best be regarded as tenant of member, he cannot be deemed as tenant of the society because the society does not fall within the definition of the term landlord under the Rent Act".
The Cooperative Court, therefore, came to the conclusion that the society could maintain an action under Section 91(1) of the Societies Act notwithstanding the fact that the occupant was a tenant under Section 15A of the Rent Act qua the member allottee.
In this view, the 867 Cooperative Court passed an ejectment order against the appellant and ordered that the member shall personally occupy the flat in question within 15 days from the receipt of possession thereof.
The appellant feeling aggrieved by this order filed an appeal under Section 97 of the Societies Act to the Maha rashtra State Cooperative Appellate Court, Bombay, being Appeal No. 206 of 1988.
The said appeal was dismissed with costs on 22nd December, 1988.
The appellate court also took the view that regardless of the relations between the occu pant of the flat and the member allottee, the society was entitled to maintain an action under Section 91(1) of the Societies Act since there was not and there could not be any relationship of landlord and tenant between the society and the occupant.
It accordingly confirmed the order passed by the Cooperative Court.
Feeling aggrieved by the concurrent findings recorded by the said two courts, the appellant preferred writ petition No. 25 13 of 1989 in the High Court of Judicature at Bombay.
The said writ petition was summarily dismissed on 16th June, 1989 but by a speaking order.
The learned Singe Judge while dismissing the writ petition observed as under: "It has now been repeatedly held by the Supreme Court that the protection even though available to the occupier against member of the cooperative society, such protection cannot be claimed against a housing society.
A reference to the deci sion in O.N. Bhatnagar vs Rukibai Narsindas, reported in ; , is sufficient".
The decision of this Court in Hindustan Petroleum Corpora tion Limited vs Shyam Cooperative Housing Society, ; was distinguished as not laying down any proposition that a licensee is entitled to take advantage of Section 15A of the Rent Act even against the society.
So stating the learned Judge dismissed the writ petition.
That is how the appellant is before us by special leave.
Section 91(1) of the Societies Act insofar as relevant for our purposes reads as under: "Notwithstanding anything contained in any other law for the time being in force any dispute touching the constitu 868 tion, . . . management or business of a Society shall be referred by any of the parties to the dispute . . to the Cooperative Court if both the parties thereto are one or other of the following: (a) a society . . (b) a member, past member or a person claiming through a member, past member or a deceased member of the society Sub section (3) reads as under: "Save as otherwise provided under sub section (2) to Section 93, no court shall have jurisdiction to entertain any suit or other proceedings in respect of any dispute referred to in sub section (1)" Sub section (2) of Section 93 lays down that: "Notwithstanding contained in this Act the Cooperative Court may, if it thinks fit suspend any proceedings in respect of any dispute, if the question at issue is one involving complicated questions of law and fact, until the question has been tried by a regular suit instituted by one of the parties or by the society".
Sub section (1) of Section 99 which begins with a non ob stante clause gets attracted if there arises any dispute touching the business of a society.
Such a dispute can be referred to a Cooperative Court if both parties to the dispute are one or other of those enumerated in clauses (a) to (e) thereof.
These include a society, a member or a person claiming through a member or a past member or a deceased member.
The dispute in the present case is between the society, its member and appellant, a person stated to be one claiming through the present member or the past member.
The crucial question which arises is whether the dispute or controversy between the parties can be said to be one touch ing the business of the society.
If yes, the Cooperative Court alone will have jurisdiction since the jurisdiction of every other court is ousted by virtue of Sub section (3) of Section 91 except for the limited purpose stated in sub section (2) of Section 93 of the Societies Act.
869 Under bye law No. 2 the objects of the society are inter alia to carry on trade of building, buying, selling, hiring, letting and developing land on cooperative principles.
Regulation 4 in Form A provides that no tenant member shall assign, under let, vacate or part with the possession of the tenement or any part thereof without the previous consent in writing of the society.
Bye law 7A lays down that an outsid er non member can be allowed to take advantage of the mem ber 's flat only on production of a written confirmation of the member before the society and on the society thereupon admitting such member as a 'nominal ' member of the society.
Admittedly in the present case no written permission of the society was obtained either by the member or by the appel lant before the latter was put in possession of the flat in question nor was any request made to the society to admit the appellant as a nominal member.
It was, therefore, con tended on behalf of the society that the entry of the appel lant in the flat in question was clearly in violation of Regulation 4 and bye law 7A adverted to above and, there fore, the dispute was clearly one touching the business of the society attracting Section 91(1) of the Societies Act.
The appellant 's challenge as pointed out earlier can be said to be two fold, namely, (1) the dispute between the appel lant and the society cannot be said to be in any manner related to the business of the society and (2) since the jural relationship between the member and the appellant was admittedly of landlord and tenant, the jurisdiction of the Cooperative Court under the Societies Act was clearly barred by virtue of Section 28 of the Rent Act which is a special statute dealing with landlord tenant relationship.
The Rent Act was enacted to amend and consolidate the law relating to the control of rents and repairs of certain premises, of rates of hotels and lodging houses and of evictions and also to control the charges for licence of premises, etc.
Section 15A which was inserted by amending Act 17 of 1973 provides as under: "15A(1) Notwithstanding anything contained in this Act or anything contrary in any other law for the time being in force, or in any contract, where any person is on the 1st day of February, 1973 in occupation of any premises, or any part thereof which is not less than a room, as a licensee he shall on that date be deemed to have become for the purposes of this Act, the tenant of the landlord, in respect of the premises or any part thereof, in his occupation".
The expression 'licensee ' is defined in sub section (4A) of Section 5 as under: 870 '5(4A) licensee ', in respect of any premises or any part thereof.
means the person who is in occupation of the prem ises or such part, as the case may be, under a subsisting agreement for licence given for a licence fee or charge; and includes any person in such occupation of any premises or part thereof in a building vesting in or leased to a co operative housing society registered or deemed to be regis tered under the Maharashtra Co operative Societies Act, 1960); but does not include a paying guest, a member of a family residing together, a person in the service or employ ment of the licensor, or a person conducting a running business belonging to the licensor, for a person having any accommodation for rendering or carrying on medical or para medical services or activities in or near a nursing home, hospital or sanatorium, for a person having any accommoda tion in a hotel, lodging house, hostel, guest house, club, nursing home, hospital, sanatorium, dharmashala, home for widows, orphans or like premises, marriage or public hall or like premises, or in a place of amusement or entertainment or like institution, or in any premises belonging to or held by an employee or his spouse who on account of the exigen cies of service or provision of a residence attached to his or her post or office is temporarily not occupying the prem ises, provided that he or she charges licence fee or charge for such premises of the employee or spouse not exceeding the standard rent and permitted increases for such premises, and any additional sum for services supplied with such premises, or a person having accommodation in any premises or part thereof for conducting a canteen, creche, dispensary or other services as amenities by any undertaking or insti tution; and the expressions 'licence ', 'licensor ' and 'pre mises given on licence ' shall be construed accordingly".
The definition of a 'landlord ' in Section 5(3) includes in respect of a licensee deemed to be a tenant by Section 15A, the licensor who has given such licence.
Similarly the expression 'tenant ' as defined by Section 5(11) includes such licensees as are deemed to be tenants by Section 15A. Section 14(2) may also be noticed which reads as under: "Where the interest of a licensor who is a tenant of any 871 premises is determined for any reason, the licensee, who by .
Section 15A is deemed to be a tenant, shall, subject to the provision of this Act, be deemed to become the tenant of the landlord, on the terms and conditions of the agree ment consistent with the provisions of this Act".
The Courts below have come to the conclusion that the appel lant was a tenant of respondent No. 2 by virtue of Section 15A of the Rent Act since he was in actual occupation of the flat on 1st February, 1973.
Having recorded the relationship of landlord and tenant between the member, respondent No. 2, and the occupant appellant, the courts below took the view that as there was no such jural relationship between the society and the occupant, the society was entitled to evict the occupant from the flat in question by taking recourse to Section 91(1) of the Societies Act as the dispute between the society, its member and the occupant claiming through the member was essentially one touching the business of the society.
In other words according to the courts below while the member could not evict the occupant except through proceedings initiated under the Rent Act, the society was free to evict the occupant, without dis continuing the membership of the licensor, by virtue of Section 91(1) of the Societies Act.
There is, according to the courts below, no conflict between Section 91(1) of the Societies Act and Section 28 of the Rent Act because in order to attract the latter provision it must be shown that the relationship between the society and the occupant is that of a landlord and a tenant or a licensor and a licensee who is entitled to the benefit of Section 15A of the.
Rent Act.
Unless such a relationship is established, the society cannot be precluded from initiating eviction action under Section 91(1) of the Societies Act against an occupant with whom it has no privi ty of contract, notwithstanding the fact that he was induct ed in the flat by the member allottee, albeit contrary to the regulations and bye laws of the society, and by passage of time a relationship of landlord and tenant has developed between the two by virtue of Section 15A of the Rent Act.
What impelled the legislature to introduce Section 15A and the related provisions on the statute book by Act XVII of 1973? The acute paucity of accommodation, particularly in urban and metropolitan centres, is of common knowledge.
Section 15 of the Rent Act initially prohibited sub letting.
Despite this prohibition sub letting took place on a large scale because of non availability of rented premises.
The legislature had to face this hard reality and was required to extend protection to such sub tenants when they were threatened with evic 872 tion by enacting the Bombay Rents, Hotels & Lodging Houses Rates Control Act (Amendment) Ordinance, 1959.
Thereafter also the acute shortage of accommodation continued and to circumvent the prohibition of sub letting in Section 15 increasing use of inducting third parties in rented premises through the expedient of leave and licence agreements was made.
This becomes evident from the Objects and Reasons for Act No. XVII of 1973, which read as under: "It is now notorious that the Bombay Rents, Hotel and Lodg ing House Rates Control Act, 1947, is being avoided by the expedient of giving premises on leave and licence for some months at a time; often renewing from time to time at.
a higher licence fee.
Licensees are thus charged excessive licence fees; in fact, several times more than the standard rent, and have no security of tenure, since the licensee has no interest in the property like a lessee.
It is necessary to make provision to bring licensees within the purview of the aforesaid Act.
It is therefore provided by Clause 14 in the Bill that persons in occupation on the 1st day of Febru ary, 1973 (being a suitable anterior date) under subsisting licences, shall for the purposes of the Act, be treated as statutory tenants, and will have all the protection that a statutory tenant has, under the Act.
It is further provided in Clause 8 that in the case of other licences, the charge shall not be more than a sum equivalent to standard rent and permitted increases, and a reasonable amount for amenities and services.
It is also provided that no person shall claim or receive anything more as licence fee or charge, than the standard rent and permitted increases, and if he does re ceive any such amounts, they should be recoverable from the licensor".
The legislative policy is evident from the opening words of Section 15A Notwithstanding anything contained elsewhere in this Act or anything contrary in any other law for the time being in force, or in any contract which convey in no uncertain terms that the legislature desired to protect licensees who were in actual occupation of any premises on 1st February, 1973 from eviction by conferring on them the status of a tenant and thereby bringing them within the purview of the Rent Act regardless of the other provisions of the said enactment or any other enactment or contract to the contrary.
A sweeping overriding effect is given over all laws and other provisions of the Rent Act as well as con tract providing to the contrary thereby placing the 873 question of status of licensees in occupation of any prem ises on 1st February, 1973 beyond the pale of doubt.
To make matters clear corresponding changes were simultaneously made, in the preamble of the Rent Act and the definitions of 'landlord ' and 'tenant ' and a new definition ' of 'licensee ' was inserted on the statute book.
Not only did the legisla ture desire to confer the status of a tenant on such licen sees but it went a step further by providing in Section 14(2) that on the determination of the licenser 's interest in the premises such a statutory tenant under Section 15A will become the tenant of the landlord, thereby establishing a jural relationship of landlord and tenant through statute as distinguished from contract.
It, therefore, seems crystal clear to us that the legislative policy was to extend the protective umbrella of the Rent Act to licensees who were in occupation of any premises on 1st February, 1973 by fiction ally conferring on them the status of a tenant, overriding all other provisions of the statute itself, all other stat utes and contracts providing to the contrary.
Therefore, every other provision of the Rent Act, every provision of any other law and every covenant of a contract which runs counter to the legislative policy engrafted in Section 15A, meaning thereby which provides to the contrary, must yield to Section 15A read with Section 14(2) of the Rent Act.
That is why this Court while overruling the decision of the Full Bench of the Bombay High Court in Ratanlal Chandiprasad vs Raniram Darkhand, writ petition No. 76 of 1980 decided on 18th October, 1985 observed in paragraph 69 of its judgment in Chandavarkar Sita Ratna Rao vs Ashalata section Gurnatn, ; at 478 as under: ".
. it must be held that all licensees created by landlords or by the tenant before February 1, 1973 and who were in actual occupation of a premises which was not less than a room as licensee on February 1, 1973 would be the licensees of the landlord or tenant and whether there by any term in the original agreement for tenancy permitting crea tion of such tenancy or licences or not they would become tenant and enjoy the fights granted under the Act specially those mentioned in Section 14(2) of the Act".
Therefore, this Court held that a licensee under a licence created by a tenant, be he a statutory tenant or a contrac tual tenant, whether or not his tenancy agreement permitted the creation of such licence, was entitled to the protection of Section 15A of the Rent Act.
In other words no statutory bar or contractual bar operated against the conferment of the statutory tenancy on the licensee in occupation of any 874 premises on 1st February, 1973 under Section 15A of the Rent Act.
That takes us to the next question whether or not a member of a co partnership type of a co operative society has such interest in the premises allotted to him as would entitle him to give the same on leave and licencee basis to a non member.
In a tenant co partnership type of society the members are shareholders; but the title to the property vests in the society which in turn rents the tenements or flats to its members.
The cost of construction of dwellings is met from deposits and loans besides the share money.
The rental is usually determined on long term basis so calculat ed as to meet the cost of construction and upkeep of the building and to guarantee perpetuity of occupation on repay ment of the whole value of the tenement or flat.
At the end of the period the member is credited with additional shares equal to the amount paid by him; the interest on these shares generally matches the rental payable by him to the society.
Thus on full payment the member becomes entitled to occupy the tenement or flat free of charge as the rental he has to pay to the society is almost met from the interest received from shares held by him.
Thus a member has more than a mere fight to occupy the flat.
A similar question came up for consideration before this Court in Ramesh Himmatlal Shah vs Harsukh.
Jadhavji Joshi, ; in the context of whether or not the mem ber 's right in the flat was liable to attachment and sale under Section 60 of the Code of Civil Procedure.
This Court after analysing the various provisions of the Societies Act, the bye laws and the regulations framed thereunder, came to the conclusion that the member 's right or interest to occupy is a species of property.
Proceeding further this Court made the following observations in paragraph 18 to 20 of the Judgment: "There is no absolute prohibition in the Act or in the Rules or in the bye laws against transfer of interest of a member in the property belonging to the Society.
The only transfer which is void under the Act is one made in contravention off sub section (2) of Section 47 [See Section 47(3)].
We have not been able to find any other provision anywhere to the same effect.
In the Scheme of the provisions a dichotomy is seen between share or interest in the capital and interest in property of the Society.
While Section 29(2) refers to transfer of a member 's share or his interest in the capital or property of any Society, Section 31 in contrast speaks of 'the share or interest of a member in the capital of a So 875 ciety '.
The Act, therefore, makes a clear distinction be tween the share or interest in the capital and share or interest in property of the Society.
We have also noticed that the Act does not recognise interest in the immovable property of the society as well [See section 41(1)(b)].
We have seen the qualifications for membership.
There is no reason to suppose that if the qualification under the bye laws are fulfilled an application for membership may be rejected".
After pointing out that the right or interest to occupy is a species of property this Court went on to add as under: "We, therefore, unhesitatingly come to the conclusion that this species of property, namely, the right to occupy a flat of this type, assumes significant importance and acquires under the law a stamp of transferability in furtherance of the interest of commerce.
We have seen no fetter under any of the legal provisions against such a conclusion.
The attachment and sale of the property in this case in execu tion of the decree are valid under the law.
XXXXXXXXXXXXXXXXXXXXXXXXX In absence of clear and unambiguous legal provisions to the contrary, it will not be in public interest or in the inter est of commerce to impose a bar on saleability of these flats by a tortuous process of reasoning.
The prohibition, if intended by the Legislature must be in express terms.
We have failed to find one".
It becomes clear from this decision that the member 's right to occupy the flat is a species of property liable to at tachment and sale.
It is more than a mere right to occupy.
It is transferable and if the transferee answers the quali fications under the bye laws for being admitted to the membership of the Society, the Society would be precluded from unreasonably withholding such admittance.
There can, therefore, be no doubt that a member allottee has a right to transfer his interest in the flat to a third party and, therefore, the right to induct a third party on leave and licence basis.
It was contended by the learned counsel for the appel lant that Section 15A was inserted in the Rent Act to serve a dual purpose namely (1) to curb exploitation of licensee and (2) to provide security 876 of tenure.
If the view taken by the Courts below in the name of maintenance of the 'distinctive mutuality ' principle is endorsed, the very purpose of the amendment, argued counsel, would be defeated.
He pointed out that in the State of Maharashtra the cooperative movement had taken rapid strides and the legislature was aware that a large number of licen sees were in occupation of flats situate in Cooperative Societies.
It must, therefore, be assumed that the legisla ture desired to extend the protection of the Rent Act to such licensees also by bringing them within the scope of Section 15A of the Act.
In support of this contention he placed strong reliance on the decision of this Court in Hindustan Petroleum Corporation Limited (supra).
This sub mission was countered by the learned counsel for the society and the member on the plea that the Courts below had rightly concluded that the jurisdiction of the Cooperative Court under Section 91(1) of the Societies Act was not ousted because there was no jural relationship of landlord and tenant between the society and the appellant.
According to them if non members could be inducted in tenements or flats belonging to a Cooperative Housing Society of the present type, the entire housing movement would become redundant and the object of forming such cooperative housing societies would be totally defeated.
Therefore.
submitted the learned counsel, even if it is assumed that the appellant had ac quired the status of a tenant by virtue of Section 15A of the Rent Act, the protection extended by the said provision would extend to the licenser member only and not to the society.
In this connection strong reliance was placed on the decision of this Court in O.N. Bhatnagar 's case (supra) which has been referred to and relied on in four subsequent decisions namely, M/s A.V.R. And Co. & Others vs Fairfield Cooperative Housing Society & Others, ; ; Sardar Mohan Singh Ahluwalia vs Maitrai Park Co operative Housing Society and Another, ; ; Hindustan Thompson Associates Ltd. vs Mrs. Maya Inderson Israni & Others, ; and Smt.
Krishna Rajpal Bhatia vs Miss Leela H. Advani and Others, ; Five decisions were rendered by a Division Bench of this Court (A.P. Sen & B.C. Ray, JJ.) on a single day i.e. 19th September, 1988 on the question of applicability of Section 91(1) of the Societies Act.
In four of those cases, namely, A.V.R. & Co. & Others; Sardar Mohan Singh Ahluwalia; Hindu stan Thompson Associates Ltd. and Smt.
Krishna Ralpal Bha tia, this Court on facts took the view that the applicabili ty of Section 91(1) of the Societies Act could not be as sailed.
In all those four cases the Court came to the con clusion that the licence was terminated before 1st February, 1973 and, therefore, 877 the occupant could not be said to be in occupation of the flat under a subsisting licence on 1st February, 1973 and hence Section 15A of the Rent Act had no application.
In such a fact situation this Court rightly took the view that Section 28 of the Rent Act was not attracted and hence the society was entitled to seek eviction under Section 91(1) of the Societies Act.
In Bhatnagar 's case the occupant was inducted in the flat on leave and licence basis after the Society had accepted him as a nominal member.
But his li cence was terminated by a notice dated 31st March, 1965 and thereafter his occupation was no more under a subsisting licence to entitle him to the protection of Section 15A of the Act.
In the case of A.V.R. & Co. also the licensee 's claim for deemed tenancy was rejected on the ground that the licence had expired long before 1st February, 1973 and had not been renewed since then.
The Court, therefore, came to the conclusion that the licence was not in occupation of the flat under a subsisting licence on 1st February, 1973 and, therefore, the benefit of Section lSA could not be extended to him.
In the case of Sardar Mohan Singh Ahluwalia also the Court found that as a matter of fact there was no subsisting licence on 1st February, 1973 to attract the application of Section 15A of the Rent Act.
In Hindustan Thompson Associ ates Ltd. the facts disclosed that the licence was terminat ed by the member on 1st October, 1972 and the occupant was called upon tO vacate the premises.
It was, therefore, held that since the subsequent occupation of the flat by the occupant was not under a subsisting licence his occupation was in the nature of a trespasser and hence Section 15A had no application.
The Court, therefore, concluded that evic tion proceedings could be commenced against him under Sec tion 91(1) of the Societies Act.
In the last mentioned case of Srnt.
Krishna Rajpal Bhatia the court found that the agreement in question created the relationship of a licensor and a licensee and the licence had in fact been terminated by a notice dated 21st May, 1969 and, therefore, the occu pant was a mere trespasser when the action was commenced under Section 91(1) of the Societies Act and was not enti tled to the benefit of Section 15A of the Rent Act.
It can, therefore, be seen that the aforesaid 5 decisions on which considerable reliance was placed by the learned counsel for the Society and its member can be distinguished on facts inasmuch as in all those cases the finding of fact recorded throughout was that the licensee was not in occupation of the premises in question under a subsisting licence on 1st February, 1973 to invoke the protection of Section 15A of the Rent Act.
However, in the case of Hindustan Petroleum Corporation Limited (supra) the Esso Easter Inc., a company, had taken flat No. 35 878 in Block No. 8 in Sham Niwas on leave and licence basis for a period of one year in terms of a written agreement dated November 26, 1968 from Smt.
Nanki M. Malkani.
On December 4, 1968 the Society passed a resolution admitting one T.J. Mansukani, an employee of the company, as a nominal member of the society since he was to occupy the flat.
The licence agreement was extended from time to time under the renewal clause incorporated in the agreement.
After the company was taken over under the Esso (Acquisition of Undertakings in India) Act, 1974 Smt.
Nanki M. Malkani sent a communication affirming the terms and conditions of the licence and again confirmed the same on 24th March, 1976.
It will be seen from these facts that the licence was subsisting on 1st February, 1973.
On 11th September, 1980 the Society passed a resolu tion calling upon the appellant corporation to vacate the said premises and directed its member Smt.
Nanki M. Malkani to occupy the same herself.
Upon the appellant corporation failing to vacate the premises the Society commenced pro ceedings under Section 91(1) of the Societies Act on 15th September, 1980 for eviction of the appellant corporation and its employee from the flat.
The Cooperative Bank Bombay, after considering the evidence adduced by the parties, dismissed the claim of the Society holding that the appel lant corporation was entitled to the benefit of Section 15A of the Rent Act and the said protection could not be taken away by the Society seeking eviction under Section 91(1) of the Societies Act.
The Society preferred an appeal which came to be allowed on 17th March, 1984 whereupon the appel lant corporation approached the High Court under Article 226 of the Constitution, but in vain.
The appellant corporation obtained special leave to appeal to this Court.
This court raised three questions for decision, two of which are relevant for our purpose.
The first question was whether the appellant corporation as successor in interest of Esso Eastern Inc., the licensee, was entitled to the protection of Section 15A of the Rent Act having regard to the fact that Esso Eastern Inc. was in occupation of the flat in dispute under a subsisting licence on 1st February, 1973 and whether the society 's action for ejectment of the occupant of the flat could be said to be a dispute touching the business of the society within the meaning of Section 91(1) of the Societies Act.
After referring to the relevant statutory provisions of both the Societies Act and the Rent Act, this Court observed that the finding of the appellate court that the appellant corporation was not entitled to the protection of Section 15A the Rent Act could not be sustained.
This Court concluded in paragraph 14 at page 758 as under: 879 "In the premises, petitioner 1 Hindustan Petroleum Corpora tion Ltd., is clearly protected under Section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
In that view of the matter, we do not think it neces sary to deal with the contention as regard the applicability of Section 91 of the Maharashtra Co operative Societies Act, 1960.
All aspects arising out of the submissions as to the jurisdiction of the Registrar under Section 91(1) of the Act have already been considered by this Court in O.N. Bhatnagar case and we reiterate the principles laid down therein".
This Court did not consider it necessary to deal with the third contention whether a claim for ejectment of an occu pant of a flat in a cooperative housing society who has been put in possession thereof by the member under a leave and licence agreement, is a 'dispute touching the business of the society ' within the meaning of Section 91(1) of the Societies Act, because in its view it was already covered by Bhatnagar 's case.
To put it differently the Division Bench accepted the ratio of Bhatnagar 's case as laying down the correct law and did not see the need to restate the same.
While in Bhatnagar 's case this Court on facts came to the conclusion that the requirements of Section 15A were not satisfied and, therefore, action under Section 91(1) of the Societies Act was maintainable, it repelled the apprehension that such a view would throw out all licensees of residen tial flats in multi storeyed buildings belonging to Coopera tive Housing Societies in the following words: "The apprehension, if we may say so, appear to be wholly unfounded.
The legislature was fully aware of the acute paucity of housing accommodation in the metropolitan cities of Greater Bombay and other urban areas in the State, and also the fact that lessors of ownership flats were adopting a device of inducting tenants under the garb of an agreement of leave and licence which left the licensee with no protec tion.
The legislature, therefore, stepped in and by Maha rashtra Act 17 of 1973 the following provisions were insert ed in the Rent Act".
After referring Section 15A(1) and Section 5(4A) of the Rent Act this Court proceeded to observe as under: 880 "As a result of the introduction of Section 15A and Section 5(4A) of the Rent Act by Maharashtra Act 17 of 1973, the licensee of any premises or any part thereof in a building vesting in or leased to a cooperative housing society regis tered or deemed to be registered under the Act, who was in occupation of such premises under a subsisting licence as on 1.2.
1973, is by a legal fiction, deemed to be a tenant and thus has the protection of Rent Act.
In such a case the dispute between a licensor and licensee relating to posses sion of the premises of a fiat would attract Section 28 read with Section 15A and 5(4A) of the Rent Act and would fail outside the purview of the Registrar 's jurisdiction to adjudicate upon such dispute under Section 91(1) of the Act.
Once this aspect is kept in view, there need be no apprehen sion as expressed by learned counsel for the appellant . . . ,,.
Indubitably the flat in question fails within the defi nition of 'premises ' in Section 5(8) of the Rent Act.
The appellant, a licensee under Section 5(4A), is a deemed tenant under Section 15A and, therefore, falls within the definition of 'tenant ' under Clause (bb) of Section 5(11) of the Rent Act.
Such a tenant is entitled to the protection of the Rent Act and cannot be evicted from the premises in his occupation except as provided by the said Act.
To hold otherwise would be to render the status conferred on licen sees in actual occupation on 1st February, 1973, under a subsisting licence, nugatory.
The appellant was put in possession of the flat in question by the tenant co partner member of the Society and was accepted as such by the suc cessormembers also.
As pointed out earlier a member of a tenant copartnership type of Society is under an obligation to pay a fixed rental every month to the Society.
This rental is, no doubt.
determined on the basis of the member 's financial obligations incurred on account of the cost of construction, price of land or lease rent, as the case may be, interest on borrowings, etc.
The primary object of such a society is to provide residential accommodation to its members on easy payment basis.
That is why in Bhatnagar 's case this Court stated that 'it is as much the concern of the society formed with the object of providing residential accommodation to its members, which normally is its busi ness, to ensure that the flats are in occupation of its members, in accordance with bye laws framed by it, rather than of a person in an unauthorised occupation, as it is the concern of the member, who lets it out to another under an agreement of leave and licence and wants to secure posses sion of the premises for his own use after the termination 881 of the licence '.
Therefore, this Court held that ejectment of an occupant, whose licence is terminated and who does not have the protection of law, such as the Rent Act, can be secured under Section 91(1) of the Societies Act.
But what happens when competing provisions vesting jurisdiction under different laws open with a non obstante clause and invest jurisdiction in different Courts? The Societies Act under Section 91(1) confers jurisdiction on the Cooperative Court while Section 28 of the Rent Act confers jurisdiction on the Court of Small Causes, Bombay.
This Court observed in Deccan Merchants Cooperative Bank, Limited vs Dali Chand Jugraj Jain, [1969] 1 SCR 887 that 'the two Acts can be harmonised best by holding that in matters covered by the Rent Act, its provisions, rather than the provisions of the Act, should apply '.
This view was approved in Bhatnagar 's case also.
In Co operative Central Bank, Ltd. vs Additional Industrial Tribunal, Andhra Pra desh, also this Court was required to harmonise the competing provisions in Section 61 of the A.P. Co operative Societies Act, which is substantially the same as Section 91(1) of the Societies Act, and Section 10(1)(d) of the Industrial Disputes Act.
This Court applying the test laid down on Deccan Merchants Co operative Bank 's case held that a dispute relating to the service condition of an employee of the society would properly be governed by the Industrial Disputes Act.
It was, however, submitted by the learned counsel for the society that the earlier enactment i.e. the Rent Act must yield to the later Act, i.e. the Societies Act, if the competing provisions of the two cannot be reconciled lex posterior derogate priori.
But the Rent Act is special law extending protection to tenants, just as the Industrial Disputes Act which makes provision for the benefit of the workmen.
Ordinarily, therefore, a general provision, a dispute touching the business of the society, would have to give way to the special provision in the Rent Act on the maxim generalia specialibus non derogant.
That is why this Court harmonised the said provisions by holding that in matter covered by the Rent Act, its provisions, rather than the provisions of the Societies Act, should apply.
In the present case the appellant seeks protection of the Rent Act since he is a deemed tenant under Section 15A read with Section 5(4A) and 5(11)(bb) of the Rent Act.
The status of a tenant is conferred on him by law as the legislature desired to extend the protection of the Rent Act to such licensees.
Rights which do not flow from contracts but are conferred by law such as the Rent Act, must, we think, be determined by the machinery, if any, provided by the law conferring the right.
882 The submission that the appellant cannot seek protection against the Society as his entry into the flat was in viola tion of the Bye laws would have been valid had the statute not intervened.
To take such a view would tantamount to carving out an exception in Section 15A of the Rent Act that the said provision would not apply to licensees in occupa tion of flats owned by tenant co partnership societies.
The language of Section 15A read with Section 5(4A) of the Rent Act does not warrant such a construction.
The mere fact that there was a violation of the Bye laws would not make any difference for it is not unknown that even in cases of breach of statute, the legislature has conferred protection on those guilty of breach if the prevailing circumstances so warrant e.g., sub letting was prohibited by Section 15 but when the legislature realised the need to protect the sub tenants it did so by an ordinance promulgated in 1959.
Similarly when the legislature felt the need to protect licensees in occupation on 1st February, 1973, it intervened by enacting Section 15A.
The legislative policy is quite evident from Section 15A and the protection given to licen sees cannot be taken away on the plea that the initial entry of the licensee in the flat was in breach of the Bye laws.
If the occupant licensee who is a protected tenant under Section 15A 'can be evicted by the society on the plea of absence of privity between the society and the protected tenant, it would render the protection of Section 15A redun dant.
The situation is more or less similar to the case of an owner landlord whose tenant had contrary to the terms of the contract introduced a licensee who is now protected by Section 15A of the Rent Act.
In such a case notwithstanding the absence of privity of contract between the owner landlord and the licensee protected tenant, the latter cannot be evicted except in accordance with the provisions of the Rent Act.
We, therefore, do not see any merit in the contention that notwithstanding the protection given by Section 15A, the society can proceed to evict him under Section 91(1) of the Societies Act on the plea that such protection is not available against the society.
Such a view would defeat the legislative object of Section 15A of the Rent Act.
But the jurisdiction of the Court in which the action is originated must be determined on the averments in the plaint or claim application and not on the defence taken by the adversary party.
For example, if the plaintiff goes to court alleging that the defendant is a trespasser, the ordinary court will have jurisdiction and its jurisdiction will not be taken away merely because the defendant pleads tenancy.
If, however, the defendant succeeds in proving that he is a tenant in respect of premises, possession whereof is sought, the court trying the case would dismiss the suit on the ground that the plaintiff had failed to prove the 883 jurisdictional fact that the defendant was a trespasser.
Here also the claim was lodged by the society in the Cooper ative Court on the ground that the appellant was in wrongful occupation of the flat in question and was a mere trespass er.
On facts it is now found that the appellant was and is a protected tenant under Section 15A of the Rent Act.
The proceedings initiated under Section 91(1) of the Societies Act cannot, in the circumstances, succeed for the simple reason that the society has failed to prove the fact which constitutes the foundation for jurisdiction.
If the society fails to prove that the appellant has no right to the occu pation of the flat since he is a mere trespasser, the suit must obviously fail.
That is why even in the case of Hindu stan Petroleum Corporation Limited this Court did not con sider it necessary to deal with the contention based on Section 91(1) of the Societies Act in detail and felt con tent by observing that the point stood covered by the deci sion in Bhatnagar 's case.
For the reasons afore stated, we are of the view that the impugned Judgment of the Bombay High Court cannot be allowed to stand.
We allow this appeal, set aside the Judg ments of all the Courts below and direct that the claim application filed under Section 91(1) of the Societies Act shall stand dismissed.
However, in the facts and circum stances of the case we make no order as to costs.
R.N.J. Appeal allowed.

summary/full:
The question for determination is, can a licensee occu pying a flat in a tenant co partnership society be evicted therefrom under subsection (1) of section 91 of the Maha rashtra Cooperative Societies Act, 1960 notwithstanding the protection extended by Section 15A of the Bombay Rents, Hotels & Lodging House Rates Control Act, 1947 as amended by Act XVII of 1973 or whether such proceedings would be gov erned by Section 28 of the Rent Act? The appellant licensee was in actual possession of the fiat on 1st February 1973 under a license without the ex press permission of the Society.
He was let in, in 1957 by one D.P. Kejriwal who was looking after the flat originally allotted to one Laxmi Devi Kejriwal in 1949.
She gifted her interest as allottee member to her brother who in turn transferred his interest therein to his brother Hari Kumar Sharma, respondent No. 2, in July 1967.
Even after this transfer D.P. Kejriwal continued in management of the flat till 1979 when he received a letter from Respondent No. 2 claiming ownership of the flat.
The appellant thereafter filed an interpleader suit.
On disposal of the said suit Respondent No. 2 deposited a sum of Rs.5,500 with Respondent No. 1, the Society, towards the cost of the Society to initiate proceedings for eviction of the appellant from the flat in question under Section 91(1) of the Societies Act.
The appellant contended that the proceeding under section 91(1) was not competent as the document of leave and licence in fact created a lease.
Alternatively, as he was in actual possession under a subsisting license right from 1957 to 1st February 1973, he was a statutory tenant under section 15A of Bombay Rent Act and the Cooperative Court had no juris diction under section 91(1) of the Societies Act and the proper court was one under section 28 of the Rent Act which the Respondent No. 2 had in fact approached.
863 The Co operative Court passed an ejectment order against the appellant.
The appellant filed an appeal under section 97 of the Societies Act to the State Co operative Appellate Court, Bombay.
The appellate court dismissed the appeal and confirmed the order of the Co operative Court.
Feeling aggrieved by the concurrent findings of the two courts the appellant preferred a Writ Petition in the High Court of Bombay.
The Writ Petition was also dismissed.
While allowing the appeal and setting aside the judg ments of all the Courts below and directing that the claim application filed under section 91(1) of the Societies Act shall stand dismissed, this Court, HELD: The appellant was and is a protected tenant under section 15A of the Rent Act.
The proceedings initiated under section 91(1) of the Societies Act cannot in the circum stances succeed as the Society has failed to prove the fact of trespass which constituted the foundation for jurisdic tion.
if the society fails to prove that the appellant has no right to the occupation of the flat since he is a mere trespasser, the suit must obviously fall.
[883B C] The Societies Act, section 91(1), confers jurisdiction on the Cooperative Court while section 28 of the Rent Act confers jurisdiction on the Court of Small Causes, Bombay.
[881B] The Status of a tenant is conferred on him by law as the legislature desired to extend the protection of the Rent Act to such licensees.
Rights which do not flow from contracts but are conferred by law such as the Rent Act must be deter mined by the machinery, if any, provided by the law confer ring the right.
[881G H] Notwithstanding the absence of privity of contract between the owner landlord and the licensee protected tenant the latter cannot be evicted except in accordance with the provisions of the Rent Act.
[882B] Chandavarkar Sita Ratna Rao vs Ashalata section Gum am; , at 478; Ramesh Himmatlal Shah vs Harsukh Jadhavji Joshi, ; ; Hindustan Petroleum Corpo ration Ltd. vs Shyam Cooperative Housing Society, ; 1989 SC 295; O.N. Bhatnagar vs Rukibai Narsim das; , ; M/s. AVR & Co. & Ors.
vs Fairfield Cooperative Housing Society & Ors., ; ; Sardar Mohan Singh Ahluwalia vs Maitrai Park Cooperative Housing Society & Anr., ; ; Hindustan Thompson Associ ates Ltd. vs Mrs. Maya Inderson Israni & Ors. 864 ; ; Smt.
Krishna Rajpal Bhatia vs Miss Leela H. Advani & Ors., ; ; Deccan Merchant Cooperative Bank Ltd. vs Pali Chand Jugraj Jain, [1969] 1 SCR 887 and Co operative Central Bank Ltd. vs Additional Industrial Tribunal, Andhra Pradesh, , referred to.


judgement:
vil Appeal Nos. 16 16 17 of 1990.
From the Judgment and Order dated 22.5.1989 of the Allahabad High Court in Writ Petition No. 2777/78 & dated 5.7.89 Review Petition No. 68(W)/89 in W.P. No. 2777/78.
K. Parasaran, Amitabh Misra, section Murlidhar and M.S. Ganesh for the Appellant.
P.P. Rao, Raja Ram Aggarwal, E.C. Aggarwala, Atul Shar ma, Ms. Purnima Bhatt, Mrs. Shobha Dikshit, Lokesh Kumar, R.D. Kewalramani and M.K. Garg for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
Special Leave granted.
The Chancellor of the Lucknow University while exercis ing power under Section 31(8)(a) of the Uttar Pradesh State Universities Act, 1973 ("The Act") has directed that Km.
Neeliam Misra, the appellant herein should be appointed as Reader in Psychology in the University.
That order has been quashed by the High Court of Allahabad, Lucknow Bench in Writ Petition No. 2777 of 1978 ,at the instance of Dr. Harinder Kaur Paintal, respondent (1).
This appeal is from that judgment of the High Court.
90 The background of the case in the barest outline may be stated as under.
The Lucknow University invited applications for appoint ment of Reader in Psychology from candidates who possessed the prescribed qualifications.
In response to the advertise ment, several candidates filed their applications.
The appellant and respondents I to 5 were some of them who offered themselves as candidates.
The Committee which was constituted for selection of candidates called them for interview along with some others.
After considering their qualifications, experience and relative performance in the interview, the Selection Committee graded them as follows: "All the candidates who appeared for the interview possess a Ph. D. degree.
Neelima Misra does not possess a Ph. D. degree.
Her thesis is nearing 'completion.
Her thesis work alongwith her publication were scrutinised and it was found that she satisfies the condition of published work of a high standard in the subject, provided as an alternative to Ph. D. degree.
All the candidates have a consistently good academic record and more than 54% marks in the M.A. Examina tions, except Dr. C.B. Dwivedi, who has a 3rd Division in the High School, Dr. Ratan Singh who has 3rd Division in High School and B.A. 2.
All the candidates possess the requisite teaching experi ence of post graduate classes.
And the basis of the research work, publications, experi ence and performance at the interview, the Committee graded the candidates as follows: 1.
Ms. Neelima Misra 2.
Dr. (Km.) Mukta Rani Rastogi 3.
Dr. (Smt.) Harinder Kaur Paintal 4.
Dr. S.N. Rai The rest of the candidates were found unsuitable.
The view of the above Committee recommended that Km Neelima Misra be appointed to the post of Reader in Psychology." 91 Km.
Neelinia Misra was found to have to her credit a published work of high standard in the subject of Psychology though she had no Ph. D. degree.
Besides she was considered to be more suitable on the basis of research work, publica tion, experience and performance at the interview.
The Selection Committee, therefore, recommended her for appoint ment to the post of Reader in Psychology.
That recommendation came before the Executive Council.
The Executive Council, by a split majority disagreed with the recommendation and preferred the appointment of respond ent (5) Dr. (Km) M.R. Rastogi.
It has expressed the view that the appellant did not possess the essential qualifica tions prescribed for the post of Reader and therefore, not suitable for appointment.
The opinion expressed by the Executive Council is as under: perusal of the bio data of Km.
Neelima Misra shows that she does not possess Ph.D. degree nor has she submitted her thesis so far.
Yet it is strange to say that her pub lished work is of a high standard.
Thus she does not fulfil requirement of essential qualifications and not suitable for the post.
The bio data of Dr. (Km) M.R. Rastogi shows that she possesses 11 years teaching experience of post graduate classes.
She has a consistently good academic record and should be appointed Reader in Psychology as she has been graded No. 2 by the Selection Committee.
Dr. (Smt.) Harmder Kaur Paintal is a Lecturer since November 1972 and has also a consistently good academic record and is suitable for the post.
As a consequence there is no question of relaxa tion of essential qualification as candidate of requisite merit are available.
" When there is thus disagreement with the recommendation of the Selection Committee, the matter must be referred to the Chancellor for his decision.
That is the mandatory requirement of Section 31(8)(a) of the Act.
Accordingly, the Executive Council referred the matter to the Chancellor.
The Chancellor, however, by order dated August 16, 1978 did not approve of the Executive Council 's opinion to appoint Dr. (Km) M.R. Rastogi.
The Chancellor rejected the opinion of the Executive Council and accepted the recommendation of the 92 Selection Committee and directed that the appellant should be appointed as Reader.
The Chancellor observed: "The Selection Committee has unanimously recommended that Km.
Neelima Misra be appointed to the post of Reader in Psychology.
Instead of accepting this recommendation, the Executive Council held by a majority of 6:5 votes that Kumari Neelima Misra does not fulfil the requirement of essential qualifications and is not suitable for the post.
It was of opinion that Dr. (Km) M.R. Rastogi who has been graded No. 2 by the Selection Committee should be appointed and that Dr. (Smt) H.K. Paintal is also suitable for the post.
Neelima Misra does not possess a Doctorate in the subject of study, but the Selection Committee has re corded that her thesis alongwith her publications were scrutinised and it was found that she satisfies the condi tion of published work of a high standard on the subject, which is an alternative to the Doctorate degree, as provided in Statute 11.01 read with Statute 11.02 of the First Stat utes of Lucknow University.
Thus Km.
Neelima Misra possess the essential prescribed minimum qualification.
She has also been adjudged to be the most suitable candidate on the basis of research work, publications and experience and perform ance at interview, among all the candidates, by the Selec tion Committee which was in a better position to Judge the merits of the suitability of the appointment.
After considering all the facts and circumstances of the case, I approve the report of the Selection Committee and direct that the appointment order be issued accordingly.
Sd/ G.D. Tapase, Chancellor" As per the decision of the Chancellor, the appellant was appointed as Reader in Psychology.
Dr. (Smt) Harmder Kaur Paintal, respondent 1, moved the High Court under Article 226 of the Constitution challenging the Chancellor 's order.
The Writ Petition was filed on 17 August 1978 before the Lucknow Bench of the Allahabad High Court and it was admitted on 93 30 March 1979.
Ten years later i.e. on 3 May 1989 the writ petition was listed for hearing before the Division Bench of the High Court.
On 22 May 1989, the judgment was delivered by allowing the writ petition and quashing the Chancellor 's order with d direction to reconsider the matter.
It seems that learned Judges had little discretion in the matter in view of an earlier decision of the High Court on the nature and scope of the Chancellor 's power under Section 31(8)(a) of the Act.
In L.N. Mathur vs The chancellor, Lucknow Uni versity, Lucknow & Ors.
, , the Full Bench of the High Court by majority, inter alia, has held that the Chancellor must state explicitly the reasons for his deci sion.
The Chancellor in order to arrive at a decision has to make a judicial approach to the question and he is enjoined by the Act to act quasi judicially.
To reach that conclu sion, the Full Bench has relied upon the observations in the Division Bench judgment in Dr. U.N. Roy vs His Excellency Sr.
G.D. Tapase, (The Ex Governor, State of Uttar Pradesh), Chancellor Allahabad University (1981 UPLBEC 309.) Following those authorities, the learned Judges in the present case have set aside the Chancellor 's order making some more observations: "When difference of opinion between the Selection Committee and Executive Council is referred to the Chancellor, his position is that of an Arbitrator and there is a sort of 'lis ' before him and in case the Chancellor has to agree with the Selection Committee with which the Executive Coun cil has differed assigning particular reason, the Chancellor has to assign reasons as to why he has agreed with the recommendation made by the Selection Committee.
The dispute having been raised, was to be decided atleast like a dis pute" At this point, we may interrupt the narration and ana lyse Section 1 of the Act which provides procedure for selection of University eachers.
Omitting unnecessary clauses, the Section reads: "31(1) Subject to the provisions of the Act, the teachers of the University and the teachers of an affiliated or associ ated college (other than a college maintained exclusively by the State Government) shall be appointed by the Executive Council or the Management of the affiliated or associated college, as the case may be, on the recommendation of a Selection Committee in the manner hereinafter provided.
XXXX XXXXX XXXXX 94 (4)(a)The Selection Committee for the appointment of a teacher of the University (other than the Director of an Institute and the Principal of a constituent college) shall consist of (i) the Vice Chancellor who shall be the Chairman thereof,; (ii)the head of the Department concerned: XXX XXX XXX (iii) in the case of a Professor or Reader, three experts, and in any other case, two experts be nominated by the Chancellor; XXX XXX XXX (6) No recommendation made by a Selection Committee referred to in sub section (4) shall be considered to be valid unless one of the experts had agreed to such selection.
XXX XXX XXX (7 A) It shall be open to the Selection Committee to recom mend one or more but not more than three names for each post.
(8)(a) In the case of appointment of a teacher of the Uni versity, if the Executive Council does not agree with the recommendation made by the Selection Committee, the Execu tive Council shall refer the matter to the Chancellor along with the reasons of such disagreement, and his decision shall be final.
Provided that if the Executive Council does not take a decision on the recommendations of the Selection Committee within a period of four months from the date of meeting of such Committee, then also the matter shall stand referred to the Chancellor, and his decision shall be final.
" Three authorities are involved in the selection of University teachers; (i) Selection Committee, (ii) Executive Council and (iii) Chancellor. 95 The Selection Committee for appointment of University teachers is a recommendatory body the composition of which has been prescribed under section 31(4)(a).
It is a high power Committee of which the Vice Chancellor shall be the Chairman.
The Head of the department concerned shall be a member.
There shall also be expert members in the particular subject.
The experts shall be drawn from outside the Univer sity and the Chancellor must nominate them.
In the case of appointment of Professor or Reader, there shall be three experts and in any other case two experts in the Selection Committee.
In the case of selection of teachers of the University, the recommendation of the Selection Committee shall not be valid unless atleast one of the experts agrees to such selection.
The Selection Committee has the liberty to recommend one or more candidates but not more than three names for each post.
The Executive Council is the principal executive body of the University whose powers and duties are provided under Section 21 of the Act.
Subject to the provisions of the Act, the Executive Council has power to appoint officers, teach ers and other employees of the University.
The appointment shall be made on the basis of recommendation made by the Selection Committee, which means in the order of merit of candidates arranged by the Selection Committee.
The Selec tion Committee has expert members and it has thus the exper tise to judge the relative suitability of competing candi dates.
The Executive Council has no such experts on the subject for selection.
Therefore, the Executive Council shall make appointments as per the position or ranking obtained in the recommendation, unless any other rule re quires otherwise.
Section 31(8)(a) seems to suggest that if the Executive Council wants to agree with the recommendation and appoint candidates in the order of merits, no reasons are to be given.
But if it wants to disagree with the recom mendations made by the Selection Committee, it must give reasons for disagreement.
It has however, no power to over ride the recommendation and appoint a candidates of its own choice.
It may disagree, but should give reasons for disa greement and refer the matter under section 31(8)(a) to the Chancellor.
Then the decision of the Chancellor shall be binding on the Executive Council.
The nature of the Chancellor 's power located under Section 31(8)(a) is now to be considered.
The High Court has held that the Chancellor 's power is quasi judicial.
There is a 'lis ' before the Chancellor for determination and he has to decide the dispute as an arbitrator.
96 The suggested analogy with the position of an arbitrator was not even supported by counsel for the respondents.
The essence of the attack of Mr. Parasaran, learned counsel for the appellant is that there is no legal or equitable fight of parties or any dispute relating thereto for determination by the Chancellor and therefore, there is no duty to act judicially.
The Chancellor has only to consider the recom mendation of the Selection Committee in the light of disa greement if any, expressed by the Executive Council and direct appointment of a candidate in the select list.
The order of the Chancellor, and his function, it was argued, are purely administrative in nature.
Mr. K.P. Rao for re spondent (3) was indeed very fair in his submission.
He did not say that there is a 'lis ' before the Chancellor for determination.
He urged that the Chancellor is required to exercise his powers properly and not improperly even though there is no 'lis ' before him for adjudication.
The argument of Mr. Agarwal for the respondent No. 5, however, ranged a good deal under than his counter part appears to have done in the High Court.
The power of the Chancellor, he contend ed, is quasijudicial and he must determine the issue that is referred to him with reasons in support of his conclusion.
The question raised is of considerable importance and it has general application in Universities governed by similar pattern of statutory provisions.
Reference may be made to some of such enactments.
Section 27(4) of the provides that if the Executive Council is unable to accept any recommendation made by Selection Committee, it may remit the same for reconsidera tion and if the difference is not resolved, it shall record its reasons and submit the case to the Visitor for orders.
Similar are the provisions under the Calcutta University Act, 1979.
Section 32(2) therein provides that if the Syndi cate does not accept the recommendation of the Selection Committee it shall refer back the matter for reconsideration and if the Syndicate does not accept the reconsidered views, the matter shall be referred to the Chancellor whose deci sion shall be final.
Section 57(2)(e) of the Bombay Univer sity Act, 1974 is almost parallel and it states that if the Executive Council does not choose to appoint from amongst the persons recommended by the Selection Committee, it shall for reasons recorded refer to the Chancellor whose decision shall be final.
The by Section 27(5) also provides that if the Executive Council is unable to accept the recommendations made by the Selection Committee, it shall record its reasons and submit the case to the Visitor for final orders.
Section 49(2) of the M.P. Vishwavidhayalaya Adhiniyam, 1973 likewise requires where the Executive Council pro 97 poses to make the appointment otherwise than in accordance with the order of merit arranged by the Select Committee it shall record its reasons and submit its proposal for sanc tion of the Kuladhipati.
The pattern in the Kerala University Act, 1974 is slightly different.
The First Statute under that Act empow ers the Syndicate to make appointments contrary to recommen dation of the Committee but With the sanction of the Chan cellor.
The First Statute under the Delhi University Act, 1922 by clause 6 provides that the Executive Council shall appoint from time to time Professors and Readers etc.
on the recommendations of the Selection Committee constituted for the purpose.
Under the Act and Statute with which we are concerned, the Executive Council has no power to ask the Selection Committee to reconsider the recommendation.
It must for reasons recorded refer the matter under Section 31(8)(a) to the Chancellor for decision.
The Full Bench of the Allahabad High Court in L.N. Mathur, case (supra) had analysed the concept of quasi judicial function with reference to the power of the Chan cellor under Section 31(8)(a) and expressed the view that the reference to the Chancellor showed the existence of a disagreement between two University Authorities with respect to the claims of competing candidates.
The Chancellor has to decide the issue by examining the reasons given by the Executive Council and the records of the candidate.
The decision of the Chancellor is final and not subject to any appeal/revision and his power is quasi judicial.
The fact that the Chancellor is not required to follow any set proce dure or sit in public or take evidence does not make his function administrative.
Such are the reasonings for the conclusion of the High Court to hold that the Chancellor must act as a quasi judicial authority.
We find it difficult to accept the reasoning underlying the aforesaid view.
Before we consider the correctness of the proposition laid down by the High Court we must, at the expense of some space, analyse the distinctions between quasi judicial and administrative functions.
An administra tive function is called quasi judicial when there is an obligation to adopt the judicial approach and to comply with the basic requirements of justice.
Where there is no such obligation.
the decision is called 'purely administrative ' and there is no third category.
This is what was meant by Lord Reid in Ridge vs Baldwin, ; , 75 76: 98 "In cases of the kind with which I have been dealing the Board of Works . . was dealing with a single isolated case.
It was not deciding, like a judge in a law suit, what were the rights of the persons before it.
But it was decid ing how he should be treated something analogous to a judge 's duty in imposing a penalty . " "So it was easy to say that such a body is performing a quasi judicial task in considering and deciding such a matter and to require it to observe the essentials of all proceedings of a judicial character the principles of natu ral justice.
Sometimes the functions of a minister or de partment may also be of that character and then the rules of natural justice can apply in much the same way . " Subba Rao, J., as he then was, speaking for this Court in G. Nageshwara Rao vs Andhra Pradesh State Transport Corporation, 19 put it on a different empha sis (at 353): "The concept of a quasi judicial act implies that the act is not wholly judicial, it describes only a duty cast on the executive body or authority to conform to norms of judicial procedure in performing some acts in exercise of its execu tive power . " Prof. Wade says "A judicial decision is made according to law.
An administrative decision is made according to administrative policy.
A quasi judicial function is an administrative function which the law requires to be exer cised in some respects as if it were judicial.
A quasi judicial decision is, therefore, an administrative decision which is subject to some measure of judicial procedure, such as the principles of natural justice." (Administrative Law by H.W.R. Wade 6th Ed.
p. 46 47).
An administrative order which involves civil conse quences must be made consistently with the rule expressed in the Latin Maxim audi alteram partem.
It means that the decision maker should afford to any party to a dispute an opportunity to present his case.
A large number of authori ties are on this point and we will not travel over the field of authorities.
What is now not in dispute.is that the person concerned must be informed of the case against him and the evidence support thereof and must be given a fair opportunity to meet the case before an adverse decision is taken.
Ridge vs Baldwin, (supra) and state of 99 Orissa vs Dr. Binapani Dei & Ors., ; The shift now is to a broader notion of "fairness" of "fair procedure" in the administrative action.
As far as the administrative officers are concerned, the duty is not so much to act judicially as to act fairly (See: Keshva Mills Co. Ltd. v: Union of India; , at 30; Mohinder Singh Gill vs Chief Election Commissioner, ; at 434; Swadeshi Cotton Mills vs Union of India, and Management of M/s M.S. Nally Bharat Engineering Co. Ltd. vs The State of Bihar & Ors., Civil Appeal No. 1102 of 1990 decided on February 9, 1990.
For this concept of fairness, adjudicative settings are not necessary, not it is necessary to have lis inter partes.
There need not be any struggle between two opposing parties giving rise to a 'lis '.
There need not be resolution of lis inter partes.
The duty to act judicially or to act fairly may arise in widely differing circumstances.
It may arise expressly or impliedly depending upon the context and considerations.
All these types of non adjudicative administrative decision making are now covered under the general rubric of fairness in the administration.
But then even such an administrative deci sion unless it affects one 's personal rights or one 's property rights, or the loss of or prejudicially affects something which would juridically be called atleast a privi lege does not involve the duty to act fairly consistently with the rules of natural justice.
We cannot discover any principle contrary to this concept.
In the light of these considerations, we revert to the central issue, that is with regard to the nature of the Chancellor 's power under Section 31(8)(a).
It may be noted that the Chancellor is one of the three authorities in the Statutory Scheme for selecting and appointing the best among the eligible candidates in the academic field.
The Chancel lor is not an appellate authority in matters of appointment.
He is asked to take a decision, because the Executive Coun cil who is the appointing authority has no power to reject the recommendation of the Selection Committee and take a decision deviating therefrom.
The Chancellor 's decision is called for when the Executive Council disagree with the recommendation of the Selection Committee.
What is referred to the Chancellor under Section 31(8)(a) of the Act, is therefore, not a dispute between the Selection Committee and the Executive Council on any issue.
Nor it is a dispute between two rival candidates on any controversy.
What is referred to the Chancellor is the recommendation of the Selection Committee with the opinion, if any, recorded thereon by the Executive Council.
In fact, even without any opinion of the Executive Council, the matter stands automat ically 100 remitted to the Chancellor if the Executive Council delays its decision on the recommendation of the Selection Commit tee.
The proviso to Section 31(8)(a) provides for this contingency.
It reads: "Section 31(8)(a) xxxxx xxxxx Proviso: Provided that if the Executive Council does not take a decision on the recommendation of the Selection Committee within a period of four months from the date of the meeting of such Committee, then also the matter shall stand referred to the Chancellor, and his decision shall be final.
" The matter thus goes to the Chancellor for decision since the Executive Council could not take a decision on the recommendation of the Selection Committee.
The Chancellor in the circumstances has to examine whether the recommendation of the Selection Committee should be accepted or not.
If any opinion by way of disagreement has been recorded by the Executive Council on that recommendation, the Chancellor has also to consider it.
He must take a decision as to who should be appointed.
It is indeed a decision with regard to appointment of a particular person or persons in the light of the recommendation and opinion if any, of the two statu tory authorities.
Such a decision appears to be of an admin istrative character much the same way as the decision of the Executive Council with regard to appointment.
In matters relating to public employment whether by promotion or direct recruitment, only requirement to be complied with is the mandate of Articles 14 and 16 of the Constitution.
There shall be equality of opportunity and no discrimination only on ground of religion, race, caste, sex, dissent, place of birth or residence or any of them.
The eligible candidate has a right to have his case considered in accordance with law.
In the instant case, that require ment has been complied with by the Selection Committee.
There is no further right with the candidates to make repre sentation to the Executive Council and much less to the Chancellor.
Reference however, was made to the observation of this Court in Dr. G. Sarana vs University of Lucknow and Ors., ; at 592.
While dismissing the writ petition challenging the recommendation made by the Selec tion Committee of the Lucknow University for appointment of a candidate as Professor, it was observed that "the ag grieved candidate has remedy by way of representation to the Executive Council and an application for re 101 ference under Section 68 of the Act to the Chancellor".
We have carefully perused the decision and that observation.
We find that it is of little assistance to the present case.
We are concerned with the scope of Section 31(8)(a) of the Act which was not considered in that case.
Apart from that, Section 31 confers no such right to make representation to the Executive Council or to the Chancellor against the recommendation of the Selection Committee.
There is no provision in the Section for hearing any candidate or the Executive Council.
There is also no provision for receiving evidence.
The material in respect of every candidate has already been collected and collated by the Selection Commit tee.
Every material is on the record and the Chancellor has no power to take further evidence.
The Chancellor is autho rised to take a decision and he must take it on the avail able records since the Executive Council has not taken a decision on the recommendation of the Selection Committee.
The decision of the Chancellor in the exercise of this Statutory function does not, in our opinion, expressly or impliedly require the application of the principles of natural justice.
See also the observations of K.N. Singh, J., in R.S. Dass vs Union of India, at 633.
It has been argued that the order of the Chancellor becomes final and binding which is one of the features of judicial power.
It is true that the conclusiveness of the decision without the need for confirmation or adoption by any other authority is generally regarded as one of the features of judicial power.
But it must be added that the order made by a statutory authority even it is given finali ty does not thereby acquire judicial quality if no other characteristic of judicial power is present.
Power to make orders that are binding and conclusive is not, by itself a decisive factor to hold that the power is judicial.
Prof. De Smith makes a similar point in his book 'Judicial Review of Administrative Action ' (4th Edition p. 82).
Taking all these factors into consideration, we would sum up our opinion m this way.
The power of the Chancellor under Section 31(8)(a) is purely of administrative character and is not in the nature of judicial or quasi judicial power.
No judicial or quasi judicial duty is imposed on the Chancellor and any reference to judicial duty, seems to be irrelevant in the exercise of his function.
The function of the Chancellor is to consider and direct appointment of a candidate on the basis of the relative performance assessed by the Expert Selection Committee and in the light of the opinion, if any, expressed by the Executive Council.
His decision nonetheless is a decision on the recommendation of the Selection Committee.
Such a power cannot be considered as a quasi judicial power.
And we see nothing in that to justify our thinking 102 that it must conform to the principles of natural justice.
The contention urged to the contrary is, therefore, unac ceptable to us.
We also do not agree with the contrary view taken by the High Court in the Full Bench decision in L.N. Mathur, case (supra).
The Chancellor, however, has to not properly for the purpose for which the power is conferred.
He must take a decision in accordance with the provisions of the Act and the Statutes.
He must not be guided by extraneous or irrele vant consideration.
He must not act illegally, irrationally or arbitrarily.
Any such illegal, irrational or arbitrary action or decision, whether in the nature of a legislative, administrative or quasi judicial exercise of power is liable to be quashed being violative of Article 14 of the Constitu tion.
As stated in E.P. Royappa vs State of Tamil Nadu & Anr., ; "equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other to the whim and caprice of an absolute monarch".
The principle of equality enshrined in Article 14 must guide every state action, whether it be legislative executive, or quasijudicial.
See Mrs. Maneka Gandhi vs Union of India & Anr., [1978] 1 SCC 248 at 283 84; Ajay Hasia & Ors.
vs Khalid Mujib Sehravardi & Ors., ; at 740 41 and Som Raj & Ors.
vs State of Haryana, JT 1990 1SC 286 at 290.
The order of the Chancellor impugned in this case indi cates very clearly that he has considered the recommendation of the Selection Committee and the opinion expressed by the Executive Council.
He has stated and in our opinion, very rightly that the appellant possesses the prescribed qualifi cation for appointment as Reader.
The decision of the Chan cellor gets support from the Statute 11.01 of the First Statute.
The Statute 11.01 is in these terms: "11.01.
(1) In the case of the Faculties of Arts, Commerce and Science, the following shall be the minimum qualifica tions for the post of Lecturer in the University, namely (a) a Doctorate in the subject of study concerned or a published work of a high standard in that subject; and (b) Consistently good academic record (that is to say, the overall record of all assessment throughout the academic career of a candidate), with first class of high second class (that is to say, with an aggregate of more than 54% marks Master 's Degree in the subject concerned or equivalent Degree of a foreign University in such subject .) 103 (2) Where the selection committee is of the opinion that the research work of a candidate, as evidenced either by his thesis or by his published work, is of a very high standard, it may relax any of the qualifications specified in sub:clause of clause (1).
" The minimum qualification prescribed for the post is a Doctorate in the subject of study concerned or a published work of high standard in the subject.
The appellant then was found to have an alternate qualification though not a Doc torate in the subject.
The Selection Committee has accepted the alternate qualification as sufficient and did not relax the essential qualification prescribed for the post.
The Executive Council appears to have committed an error in stating that the appellant has lacked the essential qualifi cation and the Selection Committee has relaxed the essential qualification.
The Chancellor was, therefore, justified in rejecting the opinion of the Executive Council.
It is not unimportant to point out that in matters of appointment in the academic field the Court generally does not interfere.
In the University of Mysore & Ant.
C.D. Govind Rao, , this Court observed that the Courts should be slow to interfere with the opinion ex pressed by the experts in the absence of mala fide alleged 2against the experts.
When appointments based on recommenda tions of experts nominated by the Universities, the High Court has got only to see whether the appointment had con travened any statutory or binding rule or ordinance.
The High Court should show due regard to the opinion expressed by the experts constituting the Selection Committee and its recommendation on which the Chancellor has acted.
See also the decisions in Dr. J.P. Kulshreshtha & Ors.
vs Chancellor, Allahabad University, Raj Bhavan & Ors., ; at 912 and Dalpat Abasahed Solunke vs
B.S. Mahajan, at 309 310.
In the result, tile appeals are allowed, the judgment of the High Court is set aside.
We also set aside the conse quential order dated June 16, 1989 made by the Registrar of the University reverting the appellant to her substantive post of Lecturer in Psychology.
Needless to state that her original appointment as Reader pursuant to the decision of the Chancellor shall remain undisturbed with all the conse quential benefits.
In the circumstances of the case, however, we make no order as to costs.
T.N.A. Appeals allowed.

dataset_name: IN-Abs

summary/full:
The appellant and the respondents applied for the post of Reader in Psychology in Lucknow University.
Under the University Statute, the minimum qualification for the post was a Doctorate degree or a published work of high standard in the subject.
The respondents possessed Ph.D. degree, while the appellant 's thesis was nearing completion.
On the basis of her experience, performance at the interview and published work, which was found to be of high standard on the subject, the Selection Committee recommended the appellant 's appointment by grading her No. 1. 85 By a split of the majority, the Executive Council disa greed with the recommendation of the Selection Committee on the ground that the appellant did not possess the essential qualification for the post of Reader and it preferred the appointment of respondent No. 2.
In view of the Council 's disagreement, the matter was referred to the Chancellor for his decision under Section 31(8)(a) of the U.P. State Universities Act, 1973.
The Chancellor rejected the opinion of Executive Council and accepted the recommendations of the Selection Committee and directed that the appellant should be appointed as a Reader.
Respondent No. 1 challenged the Chancellor 's order by filing a writ petition in the High Court, which following its earlier Full Bench decision wherein it was held that the Chancellor must explicitly state the reasons for his deci sion and was enjoined by the Act to act quasijudicially quashed the Chancellor 's order with a direction to reconsid er the matter.
In the appeal to this Court on the question of the nature of the Chancellor 's power under Section 31(8)(a) of the U.P. State Universities Act, 1973: Allowing the appeal and setting aside the order of the High Court, this Court, HELD: 1.
Three authorities are involved in the Selection of University teachers ' (i) Selection Committee, (ii) Execu tive Council and (iii) The Chancellor.
The Selection Commit tee for appointment of University teachers is a recommenda tory body the composition of which has been prescribed under section 31(4)(a).
The Executive Council is the principle executive body of the University.
Subject to the provisions of the Act, it has power to appoint officers, teachers and other employees of the University.
Section 31(8)(a) seems to suggest that if the Executive Council wants to agree with the recommendation and appoint candidates in the order of merits, no reasons are to be given.
But if it wants to disagree with the recommendations made by the Selection Committee, it must give reasons for disagreement.
It has however, no power to override the recommendation and appoint a candidate of its own choice.
It may disagree, but should give reasons for disagreement and refer the matter under section 31(8)(a) to the Chancellor.
Then the decision of the Chancellor shall be binding on the Executive Council.
The Chancellor is not an appellate authority in matters of appointment.
His decision is called for when the Executive Council disagree with the recommendation of the Selection Committee.
What is referred to him 86 under section 31(8)(a) of the Act, is therefore, not a dispute between the Selection Committee and the Executive Council on any issue.
Nor it is a dispute between two rival candidates on any controversy.
It is indeed a decision with regard to appointment of a particular person or persons in the light of the recommendation and opinion if any, of the two statutory authorities.
[94H; 95A, IL F G; 99F H] 1.1 The power of the Chancellor under Section 31(8)(a) is purely of administrative character and is not in the nature of judicial or quasijudicial power.
No judicial or quasi judicial duty is imposed on the Chancellor and any reference to judicial duty, seems to be irrelevant in the exercise of his function.
Such a power cannot be considered as quasi judicial power.
[101 F H] L.N. Malhur vs The Chancellor, Lucknow University, Lucknow & Ors., ; Dr. U.N. Roy vs
G.D Tapase, [1981] UPLBEC, 309, disapproved.
Section 31 confers no right to make representation to the Executive Council or to the Chancellor against the recommendation of the Selection Committee.
There is no provision in the Section for hearing any candidate or the Executive Council.
There is also no provision for receiving evidence.
The decision of the Chancellor in the exercise of this statutory function does not expressly or impliedly require the application of the principle of natural justice.
[ I 01 B 1)] Dr. G. Sarana vs University of Lucknow and Ors., ; ; held inapplicable.
R.S. Dass vs Union of India.
[1966] (Supp.) SCC 617; re ferred to.
2.1 The Chancellor, however, has to act properly for the purpose for which the power is conferred.
He must take a decision in accordance with the provisions of the Act and the Statutes.
He must not be guided by extraneous or irrele vant consideration.
He must not act illegally, irrationally or arbitrarily.
Any such illegal.
irrational or arbitrary action or decision, whether in the nature of a legislative, administrative or quasi judicial exercise of power is liable to be quashed being violative of Article 14 of the Constitu tion.
[102B C] 2.2 The order of the Chancellor impugned in this case indicates very clearly that he has considered the recommen dation of the question Committee and the opinion expressed by the Executive Council.
The 87 minimum qualification prescribed for the post is a Doctorate in the subject of study concerned or a published work of high standard in the subject.
The appellant was found to have an alternate qualification though not a Doctorate in the subject.
The Selection Committee has accepted the alter nate qualification as sufficient and did not relax the essential qualification prescribed for the post.
The Execu tive Council appears to have committed an error in stating that the appellant has lacked the essential qualification and the Selection Committee has relaxed the essential quali fication.
The Chancellor was, therefore, justified in re jecting the opinion of the Executive Council.
His decision gets support from the Statute I 1.01 of the First Statute of the Lucknow University.
Accordingly the judgment of the High Court and the consequential order made by the Registrar of the University reverting the appellant to her substantive post of Lecturer are set aside.
Her original appointment as Reader pursuant to the decision of the Chancellor shall remain undisturbed with all consequential benefits.
[102E, 103B C, G] 3.
An administrative function is called quasi judicial when there is an obligation to adopt the judicial approach and to comply with the basic requirements of justice.
Where there is no such obligation, the decision is called 'purely administrative ' and there is no third category.
197G H] Ridge vs Baldwin, ; ; G. Nageshwara Rao vs Andhra Pradesh State Transport Corporation, ; Administrative Law by H.W.R. Wade 6th Ed.
p. 46 47, referred to.
3.1 The conclusiveness of the decision without the need for confirmation or adoption by any other authority is generally regarded as one of the features of judicial power.
But the order made by a statutory authority even it is given finality does not thereby acquire judicial quality if no other characteristic of judicial power is present.
Power to make orders that are binding and conclusive is not, by itself a decisive factor to hold that the power is judicial.
[101 E F] Prof. Desmith, 'Judicial Review of Administrative Ac tion ' 4th Ed., p. 82; referred to.
3.2 An administrative order which involves civil conse quences must be made consistently with the rule expressed in the Latin Maxim audi alteram partem.
The person concerned must be informed of the case against him and the evidence in support thereof and must be given a fair opportunity to meet the case before an adverse decision is taken.
[98G H] 88 State of Orissa vs Dr. Binapani Dei & Ors., ; ; Ridge vs Baldwin, ; ; referred to.
3.3 So far as the administrative officers are concerned, the duty is not so much to act judicially as to act fairly.
For this concept of fairness, adjudicative settings are not necessary, nor it is necessary to have lis inter parties.
There need not be any struggle between two opposing parties giving rise to a 'lis '.
There need not be resolution of lis inter parties.
The duty to act judically or to act fairly may arise in widely different circumstances.
It may arise expressly or impliedly depending upon the context and con siderations.
All these types of non adjudicative administra tive decision making are now covered under the general rubric of fairness in the administration.
But then.even such an administrative decision unless it affects one 's personal rights or one 's property rights, or the loss of or prejudi cially affects something which would juridically be called atleast a privilege does not involve the duty to act fairly consistance with the rules of natural justice.
[99A E] Keshva Mills Co. Ltd. vs Union of India, ; ; Mohinder Singh Gill vs Chief Election Commissioner. ; ; Swadeshi Cotton Mills vs Union of India, ; Management of M/s M.S. Nally Bharat Engi neering Co. Ltd. vs The State of Bihar & Ors., Civil Appeal No. 1102 of 1990 decided on 9.2.1990; ' referred to.
In matters of appointment in the academic field the Court generally does not interfere.
The Courts should be slow to interfere with the opinion expressed by the experts in the absence of mala fide alleged against the experts.
When appointments are based on recommendations of experts nominated by the Universities, the High Court has got only to see whether the appointment had contravened any statutory or binding rule or ordinance.
The High Court should show due regard to the opinion expressed by the experts constituting the Selection Committee and its recommendation on which the Chancellor has acted.
[103D E] University of Mysore & Anr.
C.D. Govinda Rao, ; Dr. J.B. Kulshreshtha & Ors.
vs Chancellor, Allahabad University, Raj Bhavan & Ors.
, ; ; Dalpat Abasaheb Soluke vs
B.S. Mahajan, ; followed.
The principle of equality enshrined in Article 14 must guide every state action, whether it be legislative, executive or quasi judicial.
[102C D] 89 E.P. Royappa vs State of Tamil Nadu & Anr., ; ; Mrs. Maneka Gandhi vs Union of India & Ant., [1978] 1 SCC 248; Ajay Hasia & Ors.
vs Khalid Mujib Sehravardi & Ors., [1981] I SCC 722; Som Raj & Ors.
vs State Of Haryana, JT ; referred 5.1 In matters relating to public employment whether by promotion or direct recruitment, only requirement to be complied with is the mandate of Articles 14 and 16 of the Constitution.
There shall be equality of opportunity and no discrimination only on ground of religion, race, caste, sex, dissent, place of birth or residence or any of them.
The eligible candidate has a right to have his case considered in accordance with law.
[100F]