judgement:
ivil Appeals Nos.
1334 and 1335 of 1982.
From the Judgment and Order dated 9.11.1979 and 8.5. 1979 of Delhi High Court in L.P.A. No. 192 of 1979 and R.F.A. No. 245 of 1969.
Sasidharan and P.K. Pillai for the Appellants.
Tapas Ray, A.K. Srivastava and Ms. A. Subhashini for the Respondents.
The following Order of the Court was delivered: KANIA, J. Lands comprising a few bighas belonging to the claimants (appellants) and situated in the area now known as 'Nehru Place ' in Delhi were notified for acquisition by the Government of India by a Notification dated November 13, 1959, issued under Section 4 of the Land Acquisition Act, 1894.
The said lands were duly acquired under the said Act.
In compensation proceedings the Land Acquisition Collector awarded to the claimants (appellants) compensation at the rate of Rs.2,000 per bigha and further awarded solatium and interest as provided by law.
In two references under section 18 of the Land Acquisition Act at the instance of the appel lants, the Additional District Judge enhanced the compensa tion from Rs.2,000 per bigha to Rs.4,000/5,000 per bigha.
From the orders of the Additional District Judge.
the appel lants filed appeals in Delhi High Court.
The Delhi High Court enhanced the compensation to Rs.7,000 per bigha and also awarded solatium and interest.
Compensation was deter mined at the aforesaid rate largely on the footing of a sale of comparable land by 128 one Puran to the Delhi Finance Company Private Limited (hereinafter referred to as the DLF Co. ').
That sale took place a few months prior to the date of the Notification and rate at which the land was sold was Rs.6,000 per bigha.
In view of the period of few months which had gone by and the rise in land values, the High Court determined the compensa tion at Rs.7,000 per bigha.
The claimants strongly relied on the instances of 'sales of small developed plots by the DLF Co. and pointed out that it was on the basis of the sales that the High Court had awarded compensation at the rate of Rs.11 per sq. yard to the DLF Co. in respect of similar lands of the said company acquired by the government.
This amount was arrived at by taking the price of developed plots sold by DLF Co. and deducting therefrom the cost of develop ment.
It was alleged by the claimants that this land was contiguous to the land of the claimants acquired as afore said and the acquisition was at almost the same time as in the case of the claimants.
It was submitted by them that the principal reason given by learned District Judge as well as the High Court for not accepting the instance of the compen sation awarded to DLF Co. was not tenable in law.
It was submitted by them that compensation should also have been awarded to them on the basis of the said instance.
The High Court has taken the view that the instance of compensation awarded to DLF Co. was not acceptable mainly because that company was in a position to develop the land and to realise its potentiality and had been able to sell certain developed plots at a very much higher rates.
The High Court took the view that the higher compensation was liable to be awarded to the DLF Co. because that organisation was in a better position to develop the land and hence.
the potentiality of the land in its hands was greater.
With respect to learned Judges of the High Court who delivered the impugned judgment, in our opinion, the view taken by them cannot be sustained.
In land acquisition proceedings compensation has to be fixed on the basis of a hypothetical sale at or about the time of the notification under section 4 of the Land Acquisition Act of similar land by a willing seller to a willing buyer.
there being no other factors like urgent need of money or urgent need of the land for a special purpose and so on which might depress or augment the price.
In determining this compensation the ability of a particular party or his lack of ability to develop the land and to realise its potential.
cannot be regarded as a relevant circumstances.
The High Court.
there fore, was in error in placing great reliance of the afore said circumstances in determining the value of the land for fixing the compensation.
129 We would have proceeded to determine the compensation ourselves but for the fact that the appellants have failed to furnish any material on record of this Court on which we can fix the proper compensation nor have any arguments been advanced before us in that regard.
In these circumstances, we set aside the impugned judgments and orders and remand the appeals to the Delhi High Court for determination of the proper compensation for the lands acquired in accordance with law.
The appeals are accordingly allowed.
There will be no order as to costs.
G.N. Appeals allowed.

summary/full:
Notification under section 4 of the Land Acquisition Act, 1894 was issued in respect of the appellant 's lands in 1959 and the lands were acquired.
The Land Acquisition Collector awarded compensation at the rate of Rs.2,000 per bigha, as also solatium and interest.
The appellants approached the District Court which enhanced the compensation from Rs.2,000 per bigha to Rs.4,000/5,000 per bigha.
The appellants preferred appeals before the High Court.
Taking into account a comparable sale in the area few months before the Notification, the High Court enhanced the compensation to Rs.7,000 per bigha and also awarded solatium and interest.
The plea for higher compensation on the ground that some developed plots were sold by a real estate company at a higher rate was negatived since according to the High Court that company was in a better position to develop the land and that the potentiali ty of the land in its hands was greater.
These appeals, by special leave, are against the said orders of the High Court.
Allowing the appeals, HELD: 1.
In land acquisition proceedings compensation has to be fixed on the basis of a hypothetical sale at or about the time of the notification under section 4 of the Land Acquisition Act of similar land by a willing seller to a willing buyer, there being no other factors like urgent need of money or urgent need of the land for a special purpose and so on which might depress or augment the price.
In determining this compensation the ability of a particular party or his lack of ability to develop the land and to realise its potential, cannot be regarded as a relevant circumstance.
The High Court, therefore, was in error in 127 placing great reliance of the aforesaid circumstance in determining the value of the land for fixing the compensa tion.
[128F H] 2.
The appellants have failed to furnish any material on record of this Court on which this Court could fix the proper compensation nor have any arguments been advanced in that regard.
In these circumstances, the impugned judgments and orders are set aside and the appeals remanded to the High Court for determination of the proper compensation for the lands acquired in accordance with law.
and in the light of our judgment.
[129A B]


judgement:
ivil Appeal No. 4479 of 1990.
357 From the Judgment and Order dated 19.4.
1989 of the Madhya Pradesh High Court in M.P. No. 1378 of 1989.
S.K. Dholakia and D. Bhandari for the Appellant.
Kapil Sibal.
Additional Solicitor General, G.L. Sanghi, B.R. Agarwala.
Ms. Sushma Manchanda, S.K. Agnihotri, Mahen der Singh, Ms. Sushma Suri, Ujjwal A. Rana and Ashok Singh for the Respondent.
The Judgment of the Court was delivered by SHARMA, J.
Special leave is granted.
The appellant and the respondent No. 5 along with others were candidates for admission to the Post graduate Course in Obstetrics and Gynaecology in the G.R. Medical College, Gwalior.
They had duly passed the M.B.B.S. examina tion and satisfied the other essential conditions for admis sion.
The selection of the candidates was made on the basis of their relative merit and the respondent No. 5 was select ed as the last candidate in the list of the successful applicants.
The appellant was placed on the top of the waiting list and was admitted for the Diploma Course.
She challenged the admission of the respondent No. 5 on the ground that the latter was a foreign national, and was not entitled to be considered for admission in absence of prior clearance certificate by the Ministry of Health and Family Welfare, Central Government; which she could not file along with her application nor could she produce it before she was finally selected.
A writ application under Article 226 of the Constitution filed by the appellant was heard by a Full Bench of the Madhya Pradesh High Court and was dismissed by the judgment under appeal.
The learned counsel for the appellant has relied upon the Instruction dated the 6th August, 1983 issued by the Government of India, Ministry of Health and Family Welfare, to the Deans and the Principals of all Medical Colleges regarding procedure for admission of foreign students in medical institutions in the country.
By a subsequent order the Instruction which in terms had been issued for a partic ular year was kept alive.
The learned counsel for the re spondents have not disputed the binding nature of the In struction.
But there is a serious dispute about its inter pretation.
After the receipt of the applications for admission the matter was scrutinised by a committee described as the College and Hospital 358 Council and it prepared a merit 'list in which the respondent No. 5 ranked higher than the appellant.
Objections were invited latest by the 23.10.1989 and the appellant filed her application within time alleging that the respondent No. 5 was not eligible for admission at all as she had not pro duced the necessary certificate from the Ministry of Health and Family Welfare.
It appears that the respondent No. 5 had produced a letter from the Ministry of External Affairs stating that the said Ministry had no objection to the admission of the respondent.
The objection was considered by the College and Hospital Council of which besides others the Dean Dr. A.K. Govila as also the mother inlaw of the re spondent No. 5.
Dr. (Mrs.) P. Oliyai, a former Professor and Head of the Department of Obstetrics and Gynaecology of the College were members.
The objection raised by the appellant was rejected by the following decision: "(b) Dr. Roza Oliyai, since married to an Indian Doctor and obtained the permission of Ministry of External Affairs (Letter No. 1703/Dir.
(GMS)/89 dated 31.3.1989), the objec tions raised were rejected and her merit stands as status quo.
Accordingly the final list was published on 8.11.
The respondent No. 5 was, however, able to obtain the necessary certificate from the Ministry of Health and Family Welfare later and the same was filed in the College.
The respondent No. 5 was formally admitted in the first week of December, 1989.
The learned counsel for the appellant has pressed the following two points in support of the appeal: (a) The selection of the respondent No. 5 by the College and Hospital Council was vitiated on account of participation of the respondent 's mother in law as a member; and (b) Under the Government of India Instruction it was neces sary for the respondent No. 5 to have produced before the College and Hospital Council the necessary certificate from the Ministry of Health and Family Welfare before her final selection.
The crucial date was when the respondent No. 5 was finally selected and her formal admission later in December, 1989 was not material.
Also the certificate issued by the Ministry of External Affairs could not be a substi tute for the Ministry of Health and Family Welfare.
359 6.
The first argument of the learned counsel for the appellant is well founded.
Dr. (Mrs.) P. Oliyai was, without any doubt.
vitally interested in the admission of her daugh ter in law and her presence in the meeting of the Council must be held to have vitiated the selection of the respond ent No. 5 for admission.
As was observed in A.K. Kraipak and Other vs Union of India, and Others, there was a conflict between her interest and duty and taking into consideration human probabilities in the ordinary course of human conduct, there was reasonable ground for pleading that she was likely to have been biased.
In the Kraipak 's case the person concerned was the Acting Chief Conservator of Forests who did not participate in some of the deleberations of the selection Board, but the fact that he was a member of the Board and that he participated in the deleberations where the claims of his rivals were considered and in the preparation of list were held to have necessarily caused an impact on the selection, as the Board must have given weight to his opinion.
In that case the other members of the Board had filed affidavits stating that the Acting Chief Conserva tor had in no manner influenced their decision, but this was not considered sufficient to save the selection.
The princi ple has been followed in numerous cases including in Ashok Kumar Yadav and Others vs State of Haryana and Others, 17, where it was emphasised that it was not necessary to establish bias and that it was sufficient to invalidate the selection process if it could be shown that there was reasonable likelihood of bias.
It is regrettable that in spite of repeated reminders by the courts of law, the College and Hospital Council constituted by a number of highly educated persons and headed by the Dean himself did not pay any need.
It was expected of Dr. (Mrs.) Oliyai to dissociate from the Council instead of espousing the case of her daughter in law and in any event it was the bounden duty of the Dean to have seen that Dr. Oliyai did so before proceeding with the selection process.
We, accordingly hold that the selection of the respondent No. 5 for admission to the Post graduate Course was vitiated in law.
Ordinarily as a result of our above finding the matter would have been sent for reconsideration by a proper ly constituted selection committee, but having regard to the nature of the dispute between the rival doctors for the right of admission to the course of study for the present session which is fast progressing necessitating expeditious disposal of the issue, we asked the learned counsel for the parties to place the merits of their respective cases.
Accordingly, arguments were addressed, and we have consid ered the same at some length, and we proceed to decide the controversy finally here.
360 8.
Although during the hearing the learned advocates for the parties made submissions dealing with several other facets of the disputed issue, but ultimately they agreed, and in our view rightly, that the final outcome of the present litigation is dependent on the interpretation of the direction as contained in the Instruction issued by the Ministry of Health and Family Welfare, referred to above.
At one stage it was suggested on behalf of the respondent that since she has now acquired Indian nationality, she cannot be thrown out of the College.
There is no merit in this argu ment, as admittedly the respondent was not a citizen of this country when she was actually admitted in the College in the first week of December, 1989.
Mr. G.L. Sanghi also relied upon the letter dated 31.8.
1989 issued by the Ministry of External Affairs in favour of the respondent which was relied upon by the College and Hospital Council for reject ing the objection of the appellant.
This again cannot be of any help.
The role of the Ministry of External Affairs is distinctly different from that of the Ministry of Health and Family Welfare, and a certificate of no objection by one Department cannot be a substitute for the clearance by the other.
Scrutiny by the Ministry of External Affairs is made with a view to screen the person concerned to find out whether he is desirable person at all to enjoy the hospital ity of the country in the background of various relevant factors in this regard.
So far the Ministry of Health and Family Welfare is concerned, it has to take into account the question whether a seat for the medical course either upto the Degree standard or the Post graduate stage can be spared for a foreign national.
The State has to spend a large sum of money in running institutions of higher technical educa tion and the seats are limited.
In such a situation a seat can be allotted to a foreign national only at the cost of a citizen of this country.
The College and Hospital Council was, therefore, not right in deciding to admit the respond ent No. 5 on the strength of no objection certificate by the Ministry of External Affairs.
Now remains the question as to meaning of the afore said Instruction which contains two provisions as mentioned in clauses (a) and (b).
Undisputedly clause (a) is not attracted in the present case as the seat in question has not been made available by the Ministry of Health and Family Welfare and consequently there is no question of a foreign student to be sponsored by the said Ministry.
The second part of the Instruction as contained in clause (b) reads as follows: "(b) No foreign student, who is seeking admission directly for such course, shall be admitted unless Ministry of Health and Family Welfare gives its clearance.
361 According to the appellant the stage at which the condition mentioned above has to be satisfied is when the final selec tion for.admission is made.
Mr. Sanghi contends that the direction has to be construed in the light of the expression "admitted" used therein, which indicates that if the neces sary certificate is produced before the actual admission takes place, the same cannot be held to be illegal.
The learned counsel pointed out that the purpose of the Instruc tion is to ensure that no foreign national is allowed to occupy a seat ordinarily meant for the citizen of the coun try without the permission of the Ministry of Health and Family Welfare, Government of India, and once that hurdle is cleared, the purpose is fully satisfied.
After the produc tion of the necessary clearance, there does not remain any reason for rejecting the claim of a more meritorious candi date.
He emphasised the fact that the respondent No. 5 having secured higher percentage of marks than the appellant in the M.B.B.S. examination was adjudged a better candidate on merits.
We agree.
Accordingly, we find that the admission of the respondent No. 5 cannot be ignored or cancelled on the ground of any illegality.
The appeal is, therefore, dismissed but, in the circumstances, without costs.
R.S.S. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The appellant and respondent No. 5 along with others were candidates for admission to the post graduate course in Obstetrics and Gynecology in the G.M. Medical College, Gwalior.
Respondent No. 5 was selected as the last candidate in the list of the successful applicants.
The appellant was placed on the top of the waiting list.
The appellant challenged the admission Of respondent No. 5 on the ground that the latter was a foreign national and was not entitled to be considered for admission in absence of prior clearance certificate by the Ministry of Health and Family Welfare, Central Government, which she could not file along with her application nor could she produce it before she was finally selected.
The respondent had however produced a no objection letter from the Ministry of External Affairs.
Later, she was also able to obtain the necessary certificate from the Ministry of Health and Family welfare.
The writ application under Article 226 of the Constitu tion filed by the appellant was dismissed by a Full Bench of the Madhya Pradesh High Court.
Before this Court it was contended on behalf of the appellant that (i) the selection of respondent No. 5 was vitiated on account of participation of the respondent 's mother in law (a former Professor and Head of Department) as a member of the College and Hospital Council; and (ii) under the Government of India Instructions it was necessary for respondent No. 5 to have produced before the College and Hospital 356 Council the necessary certificate from the Ministry of Health and Family Welfare before her final selection, and the certificate issued by the Ministry of External Affairs could not be a substitute.
Dismissing the appeal on merits, this Court, HELD: (1) The mother in law of respondent No. 5 was, without any doubt, vitally interested in the admission of her daughter in law and her presence in the meeting of the Council must be held to have vitiated the selection of respondent No. 5 for admission.
A.K. Kraipak vs Union of India, ; Ashok Kumar Yadav vs State of Haryana, ; , referred to.
(2) It is regrettable that in spite of repeated remind ers by the Courts of law, the College and Hospital Council constituted by a number of highly educated persons and headed by the Dean himself did not pay any heed to the principles of natural justice.
(3) The State has to spend a large sum of money in running institutions of higher technical education and the seats are limited.
In such a situation a seat can be allot ted to a foreign national only at the cost of a citizen of this Country.
The College and Hospital Council was, there fore, not right in deciding to admit the respondent No. 5 on the strength of no objection certificate by the Ministry of External Affairs.
(4) A certificate of no objection by one Department cannot be a substitute for the clearance by the other.
(5) The purpose of the Instructions is to ensure that no foreign national is allowed to occupy a seat ordinarily meant for the citizen of the country without the permission of the Ministry of Health and Family Welfare, Government of India, and once that hurdle is cleared, the purpose is fully satisfied.
After the production of the necessary clearance, there does not remain any reason for rejecting the claim of respondent No. 5 who was a more meritorious candidate, who had secured higher percentage of marks than the appellant in the M.B.B.S. examination.


judgement:
ivil Appeal No. 2228 of 1982.
From the Judgment and Order dated the 25.7.1980 of the Madras High Court in C.R.P. No. 1150 of 1979.
Anant Palli and E.C. Agarwala for the Appellant.
396 V. Balachandran and K. Vijay Kumar for the Respondent.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
The appellant/tenant is in occupation of a double storeyed building bearing No. 100, Aiya Mudali Street, Chintadripet, Mount Road, Madras on a monthly rent of Rs. 170.
The respondent landlady filed an application under Sec. 4 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960 as amended by Act, 23 of 1973, for short 'the Act '.
The Rent Controller fixed the fair rent at Rs. 1,000 per month.
On appeal, the Court of Small Causes, Madras and on further Revision under Sec. 25, the Madras High Court confirmed the order.
This appeal by special leave has been at the behest 01 ' the tenant.
The admitted facts are that 1/3rd portion of the building is being used for residential and the rest for non residential purpose namely, for running a school.
It is of 50 years ' old.
Section 4 of the Act provides the procedure for fixation of the fair rent, which reads thus: "Fixation of Fair Rent (1) The Controller shall on applica tion made by the tenant or the landlord of a building and after holding such enquiry as he thinks fit, fix the fair rent for such building in accordance with the principles set out in the following sub sections.
(2) The fair rent for any residential building shall be nine per cent gross return per annum on the total cost of such building.
(3) The fair rent for any non residential building shall be twelve per cent gross return per annum on the total cost of such building.
(4) The total cost referred to in sub section (2) and sub section (3) shall consist of the market value of the site in which the building is constructed, the cost of construction of the building and the cost of provision of any one or more of the amenities specified in Schedule I as on the date of application for fixation of fair rent; Provided further that the cost of provision of amenities specified in Schedule I shall not exceed 397 (i) in the case of any residential building, fifteen per cent; and (ii) in the case of non residential building, twentyfive per cent, of the cost of site in which the building is con structed and the cost of construction of the building as determined under this Section." "5.(a) The cost of construction of the building including cost of internal water supply, sanitary and electrical installations shall be determined with due regard to the rates adopted for the purpose of estimation by the Public Works Department of the Government for the area concerned.
The Controller may, in appropriate cases, allow or disallow an amount not exceeding thirty per cent of construction having regard to the nature of the building.
(b) The Controller shall deduct from the cost of construc tion determined in the manner specified in clause (a) depre ciation, calculated at the rates specified in Schedule II.
" A bird 's eye view of Sec. 4 indicates that the Control ler shall hold an enquiry before fixing the fair rent pre ceded by an application made in that behalf either by the tenant or the landlord, in accordance with the principles set out in sub sections 2 to 5 of Sec. 4.
In case of a residential building the fair rent shall be 9 per cent and for nonresidential building 12 per cent gross return per annum on the total cost of the building in question.
The total cost shall consist of (a) market value of the site on which the building is constructed; (b) the cost of the construction of the building; and (c) the cost of provision of any one or more of the amenities specified in Schedule I which shall not exceed: (1) in the case of residential building 15 per cent; and (2) in case of any non residential building 25 per cent of the cost of the site in which the building was constructed as determined under Sec. 4 of the Act.
The cost of the construction of the building would also include internal water supply, sanitary and electrical installations.
The estimation of its ratio thereof shall be as is done by the Public Works Department of the Government for the area concerned.
In addition to the above, having regard to the nature of the building, the Controller may, in appropriate cases, allow or disallow an amount not exceeding 30% of construction.
The Controller shall also deduct from the cost of construction determined in the manner specified in clause (a) of sub 398 section 5 of Sec.
(4) the depreciation calculated at the rates specified in Schedule II.
The determination of the fair rent of the building shall be fixed as on the date of the application filed for fixation of the fair rent.
Section 5 of the Act provides the right for refixation of the fair rent under the Act for the reasons adumbrated therein with which we are presently not concerned.
An Engi neer was appointed as a Commissioner to evaluate the total cost of the building, who adopted the rates of the Public Works Department and submitted his report which is Exhibit P 2.
He was also examined as a witness.
The rates of the construction for terraced building were (a) for the ground floor at Rs.345 per sq.
metre and (b) for first floor at Rs.320 per sq.
metre.
As regards the tiled portion, the cost of construction is Rs.300 per sq.
metre.
The parties also adduced oral evidence.
The Rent Controller after considera tion thereof fixed the rates as afore stated and he worked out the fair rent on that basis.
The entire ground floor consists of 2927.25 sq.
the area of two shops wherein consists of 238.00 sq.
The built up area of the first floor is 3330.75 sq.
ft., the tiled portion consists of 237 sq.
The cost of construc tion was estimated at Rs. 1,99,300.
The depreciation @ 1 per cent, as is first class building, was given.
He added the market value of the open site at Rs.20,000 and also annuity on the vacant portion @ 1 per cent was added.
Accordingly the Rent Controller worked out the cost at Rs. 1,51,820.
The fair rent as non residential premises, at 12 per cent gross return, was fixed at Rs. 15 18 per month.
Since the respond ent, landlady confined to the enhancement of the fair rent at Rs. 1,000, it was accordingly fixed.
On appeal it was affirmed.
In the revision, the High Court while agreeing with the valuation adopted, determined fair rent on the basis that 1/3rd as being used for residential purpose and 2/3rd for non residential purpose.
On that basis the learned Judge worked out at the rate of 9 per cent and 12% as adum brated in Sec.
4(2) and (3) and fixed the fair rent.
While upholding the depreciation at 1 per cent it fixed the fair rent Rs.1391.67 per month, but affirmed the fair rent at Rs.1,O00 per month as was confined to, by the landlady.
From this material matrix the question at issue is whether the fixation of the fair rent by the Rent Controller, ultimately affirmed by the High Court, is illegal.
The contention of the learned counsel for the appellant/tenant that the cost of the building and its market value are illegal, is falla cious and untenable.
Section 4 not only provides the proce dure but also the principles and method on the basis of which the fair rent is to be determined.
The fixation of fair rent, therefore, is in consonance with Section 4.
We 399 accordingly affirm its legality.
Realising this stark reali ty the counsel laid emphasis that the valuation of the cost of construction should be as on the date of the construction of the building and placed strong reliance on K.C. Nambiar vs The IV Judge of the Court of Small Causes, Madras & Ors.
, Therein this Court held that the expres sion 'cost of construction ' means the cost of construction of the building as originally erected with such additions as may be required to be made for subsequent improvements.
Rule 12 which prescribes the rate at which the cost of construc tion is to be computed plainly goes beyond the terms of the section.
Accordingly this Court allowed the appeal and determined the fair rent as on the basis of the cost of construction.
On that premise the learned counsel for the appellant contended that calculation of the cost of con struction to the residential as well as non residential building should be with reference to the date of applica tion.
We find no substance in the contention.
It is already seen that sub section 4 of Sec. 4 of the Act, clearly indi cates that the total cost of construction referred to in sub section 2 and sub section 3 shall consist of the market value as on the date of application for fixation of the fair rent.
It is obvious that at the time when this court ren dered the decision in Nambiar 's case there was no provision in Sec. 4 as to the date on which the cost of construction was to be determined, and Rule 12 provided in the manner in which the fixation of the fair rent has to be made.
But subsequently it was amended by Amending Act 23 of 1973 incorporating in sub section (4) of Sec. 4 of the Act as the date of making an application.
This is also apparent when we see Sec. 5 of the Act.
Sub section (3) of Sec. 5 clearly mentions that: "Where the fair rent of any building has been fixed before the date of the commencement of the Tamil Nadu Building (Lease and Rent Control) Amendment Act, 1973 the Landlord or the tenant may apply to the Controller to refix the fair rent in accordance with the provisions of Section 4 and on such application, the Controller may refix the fair rent. ' ' Thus we are clearly of the view that the ratio in Nambi ar 's case no longer would apply.
The subsequent amendment brought on the statute in 1973, amplified the date of appli cation as the staring point to fix market value.
On the basis of the valuation of the building estimated by the commissioner as per P.W.D. rates prevailing in the area and evidence produced by the parties, the Rent controller as modified by the High Court rightly determined the fair rent.
400 It is next contended that the method adopted by the Controller and ultimately upheld by the High Court in fixing the fair rent is not correct.
It is contended that the value of the building has been changing from time to time as is reflected from the evidence on record and the courts below committed the gravest error in not considering the evidence in proper perspective.
It is already seen that Sec.
4 pre scribed the principles on the basis of which the fair rent is to be fixed.
In the light of those principles the evi dence adduced by the parties was considered by the Control ler, the appellate court and the High Court, found that the fixation of the fair rent is much in excess to the claim made by the landlady.
Since the landlady confined the claim for Rs. 1,000 per month, the courts below have fixed the fair rent at Rs. 1,000.
Therefore, on the findings of facts based on consideration of the evidence, this Court cannot interfere and come to its conclusion.
Thereby the finding is not vitiated nor illegal warranting interference.
The appeal is accordingly dismissed with costs, fixed at Rs .5,000.
G.N. Appeal dismissed.

summary/full:
The appellant tenant was in occupation of a double storeyed building on a monthly rent of Rs. 170.
The respond ent landlady filed an application under Section 4 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 for fixation of fair rent.
The Rent Controller took note of the fact that 1/3rd portion of the building was being used for residential purpose and the rest of the building for non residential purpose, namely, for running a school.
He also appointed an Engineer as Commissioner to evaluate the total cost of the building.
The Commissioner adopted the rates prevalent in the Public Works Department and submitted his report.
On the basis of the Commissioner 's report, the Rent Controller worked out the cost at Rs.1,51,820.
Accordingly, the fair rent for the said premises was arrived at Rs.1518 per month at 12 per cent gross return.
Since the respondent landlady had confined her claim for the enhance ment of fair rent to Rs.1,O00 only, the Rent Controller fixed the fair rent at Rs.1,O00.
On appeal, the order of Rent Controller was affirmed by the Court of Small Causes.
On a revision being preferred, the High Court agreed with the valuation adopted and determined the fair rent on the basis that 1/3rd of the premises was used for residen tial purpose and 2/3rd for nonresidential purpose, and, as per sub sections (2) and (3) of Section 4 of the Act, worked out the rent at 9 per cent and 12 per cent respectively on the cost of construction arrived at.
The High Court fixed the fair rent at Rs. 1391.67 per month.
It confirmed the fair rent of Rs. 1,000 as was fixed by the Rent Controller and as confined to by the Respondent landlady.
This appeal, by special leave, is against the High Court 's order.
It 395 was contended that the cost of the building and its market value as worked out was illegal, fallacious and untenable.
Dismissing the appeal, HELD: 1.
Section 4 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 prescribes the principles on the basis of which the fair rent is to be fixed.
In the light of those principles, the evidence adduced by the parties was considered by the Rent Controller, the appellate court and the High Court and they found that the fixation of the fair rent was much in excess of the claim made by the Respondent landlady.
Since she confined her claim to Rs.1,O00 per month, the courts below have fixed the fair rent at Rs.1,O00.
Therefore, on the findings of facts based on consideration of the evidence, this court cannot interfere and come to its own conclusion.
The finding is neither vitiated nor illegal warranting interference.
[210B C] 2.1 Sub section 4 of Section 4 of the Act, clearly indicates that the total cost of construction referred to in sub sections (2) and (3) shall consist of the market value as on the date of application for fixation of the fair rent.
[209C] 2.2 It is obvious that at the time when this Court rendered its decision in Nambiar 's case there was no provi sion in Section 4 as to the date on which the cost of con struction was to be determined, and Rule 12 provided the manner in which the fixation of the fair rent has to be made.
The subsequent amendment brought on the statute in 1973, by the Amending Act 23 of 1973, has incorporated sub section (4) in Section 4 which amplified the date of appli cation as the starting point to fix market value.
As such the fair rent has been rightly determined by the courts below.
[209D E; HI K.C. Nambiar vs The IV Judge of the Court of Small Causes, Madras & Ors., , referred to.


judgement:
Criminal Appeal No. 453 of 1986.
From the Judgment and Order dated 2.7.1986 of the Rajas than High Court in D .B.
Criminal Appeal No. 289 of 1983.
U .R. Lalit and S.K. Jain for the Appellant.
N.H. Hingorani, Ms. Hingorani, Ravi P. Wadhwani and B.D. Sharma for the Respondent.
Aruneshwar Gupta for the State.
The Judgment of the Court was delivered by R.M. SAHAI, J.
In this appeal, by grant of special leave under Article 136 of Constitution of India, the short ques tion that arises for consideration is if the High Court committed any error of law in exercise of its powers under section 378 read with section 3861(a) of the Criminal Proce dure Code in allowing the appeal against acquittal and convicting the appellant under section 302 of the Indian Penal Code and sentencing him to undergo life imprisonment.
Law is well settled.
While caution is the watchword, in appeal against acquittal as the Trial Judge has occasion to watch demeanour of witnesses and interference should not be made merely because a different conclusion could have been arrived, the provision does not 404 inhibit any restriction or limitation.
Prudence demands restraint on mere probability or possibility but in perver sity or misreading interference is imperative otherwise existence of power shall be rendered meaningless.
Time and place of unnatural death, of Asha Rani, by burning, at her in laws ' small house with at least six inmates, could not and was no disputed.
Both the Trial Judge and the High Court held that the prosecution succeeded in proving this.
It was further found by them that she did not die of accident nor she committed suicide.
Burning by kero sene stove or gas or even firewood may not be unusual due to synthetic wear which has become very common.
But when post mortem report indicates, as was in this case, that smell of kerosene was coming from body and even burnt hairs smelt kerosene then it not only belied the statement of her sis ter in law (Nand) that she was burnt while making tea but it ruled out remotest possibility of accident.
That is why the findings were not, seriously, challenged by the appellant.
Asha Rani was thus murdered.
Why? Sadly for Rs.5,000 or an auto rickshaw which her father, of seven daughters, could not afford even though he suffered the ignominy of her being beaten in his presence by her in laws at his own house.
Bride burning is a shame of our society.
Poor never resort to it.
Rich do not need it.
Obviously because it is basical ly an economic problem of a class which suffers both from ego and complex.
Unfortunately, the high price rise and ever increasing cost of living coupled with enormous growth of consumer goods effacing difference between luxury and essen tial goods appear to be luring even the new generation of youth, of the best service.
to be as much part of the dowry menace as their parents and the resultant evils flowing out of it.
How to curb and control this evil? Dowry killing is a crime of its own kind where elimination of daughter in law becomes immediate necessity if she or her parents are no more able to satiate the greed and avarice of her husband and their family members, to make the boy available, once again in the marriage market.
Eliminate it and much may stand resolved automatically.
Social reformist and legal jurists may evolve a machinery for debarring such a boy from remarriage irrespective of the member of family who commit ted the crime and in violation penalise the whole family including those who participate in it.
That is social os tracisation is needed to curtail increasing malady of bride burning.
Motive for a murder may or may not be.
But in dowry deaths it is inherent.
Both the courts have concurrently held on evidence of 405 parents of deceased, that her in laws were regularly and continuously pestering her for bringing cash or an auto rickshaw and on their failure to satisfy their demand she was subjected to torture and maltreatment.
But the Judge attempted to dilute it by holding that relations between the deceased and her in laws were strained.
And even if there was any motive it could not be of appellant.
There is thus little difference between the finding of the two courts on motive except for immediate cause.
But what was overlooked was that in dowry deaths motive is already there and what is required of courts to examine is as to who translated it into action as motive for it is not individual, but of family.
Motive of dowry, the first link was found proved.
Next and most important link was the evidence of doctor or the details of what happened in the hospital.
The victim was undisputedly brought in the ward at 10.00 a.m.
She was examined by Dr. Saxena PW 6, a student of first year of M.S. course.
He prepared the bed head ticket.
Since it was a serious case he sent for Dr. Temani and Dr. Patricia the medical jurist.
He stated that Dr. Temani examined her first and Dr. Patricia came later.
He stated that Asha Rani was conscious from 10.00.
a.m. to 11.00 a.m. He further admitted unequivocally that when she was admitted she could give clear cut answer of whatever was asked from her.
He thus stated three vital things, one preparation of bed head ticket and entries made on it, second about the sequence in which the doctors examined the patient and third that the victim was conscious who could understand and give answers of whatever questions were asked from her.
In the bed head ticket which was deposed to be written by him it was clearly mentioned that Asha Rani complained of misbehaviour of her brother in law.
He made an unsuccessful attempt to wash off its effect by stating that on his inquiry as to who burnt her she did not disclose name of anyone.
Nothing turns on this part of the statement as he could not deny the entry in the bed head ticket.
No further need be said firstly because he was a student only and secondly circumstances do not lie.
However if the entry in bed head ticket and the statement on three vital aspects are not contradicted by the other two doctors either by taking their depositions individually or with Dr. Saxena then minor contradictions here and there not relevant or material could not shake the prosecution case.
Dr. Temani examined the deceased and gave detailed description in the injury report.
It is also mentioned that she was burnt by her brother in law (Devar).
He stated that on his inquiry Asha Rani told him that she was burnt by her brother in law (Devar) Ashok.
He further stated that the statement was made in presence of Dr. Patricia 406 who on his asking made endorsement on the injury report.
In cross examination he admitted that Dr. Patricia came five minutes after him.
He stated that the deceased disclosed name of Ashok in her presence.
He further stated that she was conscious.
Dr Patricia deposed that Asha Rani stated in her presence stated on asking of Dr. Temani that she was burnt by Ashok Kumar.
She admitted that the endorsement on the injury report that Asha Rani was burnt by her Devar was made by her on request of Dr. Temani.
Thus on all material particulars the statements were consistent.
The Judge could not point out any contradiction on these important aspects but discarded the statement of Dr. Temani and Dr. Patricia because there were contradictions as to how many persons were present during examination by these doctors, and if even earlier such dying declaration was recorded in injury report and got endorsed by senior doctors and why the doc tors did not disclose it to anyone and why the report was written by compounder on dictation of Dr. Temani and why was not he examined.
It was held, 'Dr. Temani has said about the statement by Asha Rani prior to examination by him and has deposed about the presence of Dr. Patricia.
Dr. Patricia is stated to have recorded the statement of Asha Rani after examining.
Dr. Patricia and Dr. Rakesh, whom Dr. Patricia has stated to be with her as a House Surgeon, has falsified the statements of both the witness and it has been clearly said that before him Asha Rani said anything to Dr. Temani nor Dr. Patricia nor Dr. Patricia or Dr. Temani examined Asha Rani before him.
In this way there are vital contradic tions between the statements of Dr. Patricia and Dr. Temani and on account of refutal by the statement of Dr. Rakesh in my opinion, prima facie, it can be said that no reliance can be placed on the statements of Dr. Patricia and Dr. Temani. ' This approach of the Judge apart from being faulty was contrary to the rule and appreciation of evidence.
The High Court after going into detail and examining the evidence of each of these witnesses has found that there was no material contradiction either on the question of presence of the two doctors of the sequence in which she was examined by them or in respect of recording of bed head ticket and the injury report.
Dr. Patricia in her statement stated that in her presence when Dr. Temani asked Asha Rani as to who burnt her she told that her brother in law (Devar) Ashok had burnt her.
Dr. Temani stated the same.
But the two were disbe lieved because Dr. Temani in her cross examination stated that when he got the injury report recorded by compounder Dhirender Jain Dr. Patricia went away and he got the en dorsement of Dr. Patricia on the desk outside the chamber.
The High Court pointed out that there was no material con tradiction on the two aspects namely the disclosure of name by Asha Rani in her presence on asking of Dr. 407 Temani and the endorsement in the injury report.
Even the sequence of examination by Dr. Saxena then by Dr. Temani and thereafter reaching of Dr. Patricia and then disclosure of name of the appellant by Asha Rani have all been deposed without any contradiction.
The High Court was further of the opinion that merely because the injury report reached on 13th August 1982 at the police station it could not reflect adversely on the testimony of either of the doctors.
It was also held that the entry of misbehaviour of Ashok Kumar in the bed head ticket by Dr. Saxena and the name of Ashok in the injury report were consistent as Ashok was admittedly present in the hospital when Dr. Saxena had examined the victim.
May be that he was present even when Asha Rani was examined by Dr. Temani but that by itself could not render the entry of his name in the injury report suspicious or motivated.
The High Court further was right in concluding that the statement made by her was correct and honest as apart from the statement of a dying person which is normally trustworthy there was no reason for her to disclose the name of Ashok to Dr. Temani or of brother in law to Dr. Saxena when her relations were strained with her in laws and the husband.
Nor there could be any reason or motive for the doctors to implicate him.
Appreciation apart the order of the Judge is vitiated as apart from deciding the caste on irrelevant considerations, criticising the doctors without any basis, drawing an infer ence against Dr. Patricia only because she was a lady the most serious error of which he was guilty and which rendered the order infirm which could be set aside by the High Court was that he mis read the evidence and indulged in conjectur al inferences and surmises.
To quote his own words: "From the statement of Dr. Rakesh it is also clear that when Asha Rani was brought to the Ward, she was unconcious.
In this situation it seems very strange and unnatural that prior to the alleged statement Asha Rani was senseless and thereafter became unconscious.
Then how did she have re gained consciousness in between only to make a statement, particularly in the situation when every part of the body was cent per cent badly burnt and in this severe pain it cannot be expected that she could have been able to make a statement to the doctor, seeing her trouble, giving her some medicine, would not have tried to pacify her.
From exhibit PS, the bed head ticket, itself appears that simultaneously with the admission she was given injections of morphia etc.
so that she may be fully quiet and her speech 408 would not be possible and she might not have felt terrible pain.
This also appears to be surprising that if she was really able to speak, why did she only say that her brother in law Ashok burnt her and why also she not say as to why she was burnt and how did he burn her.
If for sometime she would not have told this, even then there should have been an anxiety to Dr. Patricia and Dr. Temani and they should have asked her as to how and why she was burnt but nothing like this happened and possibly in a corner of exhibit P 4, where endorsement A to B has been made, over there so much could be written.
Therefore it appears that the endorsement A to B has been got written later on when so needed.
" Needless to say that each and every word of this is based neither on appreciation of testimony of the witnesses nor on consideration of material on record but on imagination and assumption.
For instance the finding that from statement of Dr. Saxena it was clear that when Asha Rani was brought to ward she was unconscious is against testimony of Dr. Saxena and is not supported by any material whatsoever.
The other conclusions flowing out of it were equally fallacious.
From the bed head ticket it is clear that morphine was injected after eleven yet the judge observed to support his unsup portable finding that it was administered simultaneously on entry in the ward.
The High Court thus did not exceed its powers in setting aside the order of acquittal.
Investigation was criticised and it was submitted that no one from locality having been produced nor the nurse or compounder, who took down injury report on dictation of Dr. Temani, having been examined nor any incriminating material having been found at site it created a doubt if everything proceed fairly and in accordance with law.
Argument as a matter of law that defective investigation should go to discredit prosecution cannot be disputed but on facts it is not available.
The High Court was aware of it and, in our opinion rightly, did not discard prosecution evidence due to remissness of investigating officer on ratio laid down by this Court in Chander Kant vs State of Maharashtra, AIR 1974 SC 220.
We are further of the opinion that the finding of the High Court that the investigating officer due to remiss ness failed to preserve the site is correct but it does not in any manner weaken the prosecution case.
Nor any adverse inference could be drawn due to non production of nurse or compounder when the investigating report was written on dictation of Dr. Temani.
409 Delay in sending injury report to the Police Station on 13th instead of 9th despite request by Police Inspector was attempted to be highlighted as casting suspicion on its genuineness.
The High Court has gone into this aspect in detail and has found that in fact the negligence, if any, was on the part of the investigating officer as despite having received the information he neither took care to preserve the site nor did he record the statement of any of the doctors before 14th August.
Entries in the injury report which have been construed as dying declaration by the two courts below were severely criticised and it was submitted that although dying declara tion was admissible in evidence and conviction could be recorded on it without corroboration yet the circumstances in which it was recorded created doubt if it was genuine.
The High Court for very good reasons rejected similar argu ments advanced before it.
We also do not find any substance in it.
When the deceased was examined by Dr. Temani he having found her condition to be serious immediately sent message to the police station and also requested for arrang ing for recording of the dying declaration.
This is corrobo rated by the entry in the record of the police station.
But the inspector of police came after 11.00 when the injection of morphine had already been administered to lessen the agony of the patient who thereafter became unconscious.
She was, however, as indicated earlier conscious between 10.00 to 11.00 during which period the bed head ticket was written by Dr. Saxena and the entries were made on the injury re port.
The judge did not doubt the recording on the bed head ticket that the deceased complained of misbehaviour by her brother in law.
Even the learned counsel could not point out any infirmity or reason to discard it except that by mere word, brother in law it was not established that it was appellant, i.e., the effort was to make out a case of doubt.
That could have been possible if that entry could have stood alone.
But it stands not only corroborated but clarified by identifying the appellant by entry in injury report as the brother in law who was responsible for this crime.
We per sued the injury report and we could not find any reason to doubt its authenticity.
Before parting with this case we consider it necessary to record that the judge was uncharitable in discarding the testimony of Dr. Patricia and doubting her truthfulness principally because she was a woman forgetting that she was a doctor of 14 years standing and there was no reason for her to make the endorsement on the injury report other than stated that it was on request of Dr. Temani.
We do not wish to comment further but we express our deep dissatisfaction on the 410 manner in which the judge criticised the two doctors.
For the reasons stated above we are of the opinion that the High Court did not commit any error in allowing the appeal and recording the conviction under Section 378 read with Section 386( 1 )(a) of the Indian Penal Code.
In the result this appeal fails and is dismissed.
The appellant is already in jail.
He shall serve out his sen tence.
T.N.A. Appeal dismissed.

summary/full:
The appellant was accused of burning his sister in law to death.
Accordingly, he was prosecuted for the offence of murder.
The Trial Judge acquitted him by holding (i) that there was no motive for him to cause the murder; (ii) that there were vital contradictions between the statement of the doctors who examined the deceased and that the conviction could not be based on the testimony of doctor before whom the dying declaration was made by the deceased; and (iii) that the investigation was defective because (a) no one from the locality was produced; (b) the nurse and the compounder who took down the injury report on the dictation of the doctor was not examined; and (c) no incriminating material was found at the site.
The State preferred an appeal before the High Court against the acquittal order, which allowed the appeal, set aside the order of acquittal passed by the Trial Court, and convicted the accused under Section 302 of the Indian Penal Code and sentenced him to life imprisonment.
Hence this appeal by the accused.
Dismissing the appeal, this Court, HELD: 1.
While caution is the watchword, in appeal against 402 acquittal as the Trial Judge has occasion to watch the demeanour of witnesses, and interference should not be made merely because a different conclusion could have been ar rived, the provisions contained in Sections 378 and 386 of the Code of Criminal Procedure, 1973 do not Inhibit any restriction or limitation.
Prudence demands restraint on mere probability or possibility but in perversity or mis reading interference is imperative otherwise existence of power shall be rendered meaningless.
[213H; 214A] 2.
In the instant case, the approach of the Trial Judge apart from being faulty was contrary to the rule and appre ciation of evidence.
Appreciation apart the order of the Trial Judge is vitiated as apart from deciding the case on irrelevant considerations, criticising the doctors without any basis, drawing an inference against the doctor only because she was a lady the most serious error of which he was guilty and which rendered the order infirm which was rightly set aside by the High Court was that he mis read the evidence and indulged in conjectural inference and surmises.
Therefore, the High Court did not exceed its powers in setting aside the order of acquittal.
It did not commit any error in allowing the appeal and recording the conviction under Section 378 read with Section 386(a) of the Code of Criminal Procedure.
[216F; 217E; 220A] 3.
Motive for a murder may or may not be.
But in dowry deaths it is inherent.
In dowry deaths what is required of courts to examine is as to who translated it into action as motive for it is not individual, but of family.
[214H; 215A] 4.
Argument as a matter of law that defective investiga tion should go to discredit prosecution cannot be disputed but on facts of the instant case it is not available.
The High Court was right in not discarding the prosecution evidence due to remissness of investigating officers.
The finding of the High Court that the investigating officer due to remissness failed to preserve the site is correct but it does not in any manner weaken the prosecution case.
Nor any adverse inference could be drawn due to non production of nurse or compounder when the investigating report was writ ten on dictation of the doctor.
[218F H] Chander Kant vs State of Maharashtra, A.I.R. 1974 SC 220, referred to.
Bride burning is a shame of our society.
Poor never resort to it Rich do not need it.
Obviously because it is basically an economic problem of a class which suffers both from ego and complex.
Unfortu 403 nately, the high price rise and ever increasing cost of living coupled with enormous growth of consumer goods effac ing difference between luxury and essential goods appear to be luring even the new generation of youth, of the best service, to be as much part of the dowry menace as their parents and the resultant evils flowing out of it.
How to curb and control this evil? Dowry killing is a crime of its own kind where elimination of daughter in law becomes imme diate necessity if she or her parents are no more able to satiate the greed and avarice of her husband and their family members, to make the boy available, once again in the marriage market.
Eliminate it and much may stand resolved automatically.
Social reformist and legal jurists may evolve a machinery for debarring such a boy from remarriage irre spective of the member of family who committed the crime and in violation penalise the whole family including those who participate in it.
That is social ostracisation is needed to curtail increasing malady of bride burning.
[214E G]


judgement:
Civil Appeal No. 105 of 1990.
From the Judgment and Order dated 10.3.
1988 of the Rajasthan High Court in S.B. Civil Second Appeal No. 327 of 1976.
C.M. Lodha, H.M. Singh and R.S. Yadav for the Appellant.
S.K. Ghose, M. Qamaruddin and Mrs. M. Qamaruddin for the Respondent.
The Judgment of the Court was delivered by R.M. SAHAI, J.
Is Estoppel a good defence to 'archaic ', Atam Prakash vs State of Haryana, ; , right of Pre emption which is a 'weak right ', Bishen Singh vs Khazan Singh; , , and can be defeated by any 'legitimate ' method Radha Kishan vs Sridhar, ; Barring High Court of Rajasthan and erstwhile, Mewar State Jethmal vs Sajanumal, [1947] Mewar Law Reports, 36, most of the other high courts, namely, Allahabad, Naunihal Singh vs Ram Ratan, , Oudh, Ram Rathi vs Mr. Dhiraji, [1947] Oudh 81, Ajmer 352 Gopinath vs R.S. Nand Kishore, AIR 1952 Ajmer 26, Bhopal, Abdul Karim vs Babu Lal, AIR 1953 Bhopal, and Lahore Kanshi Ram Sharma & Anr.
vs Lahori Ram & Anr., have answered the issue in the affirmative.
The Privy Coun cil, [1929] PC AIR 259, too, applied this principle to non suit a pre emptor who knew that the property was in the market for long but offered to purchase, only.
one out of many blocs.
It had: "Assuming that the prior completed purchase by the appellant would under other circumstances, have given him the right of pre emption in respect of the blocks in suit, he must be taken by his conduct to have waived this right, and that it would be inequitable to allow him now to re assert it." Even in Muslim Law which is the genesis of this right, as it was unknown to Hindu Law and was brought in wake of Mohamme dan Rule, it is settled that the right of pre emption is lost by estoppel and acquiescence.
Estoppel is a rule of equity flowing out of fairness striking on behaviour deficient in good faith.
It operates as a check on spurious conduct by preventing the inducer from taking advantage and assailing forfeiture already accomplished.
It is invoked and applied to aid the law in administration of justice.
But for it great many injustice may have been perpetrated.
Present case is a glaring example of it.
True no notice was given by the seller but the trial court and appellate court concurred that the pre emptor not only came to know of the sale immediately but he assisted the purchaser appellant in raising construction which went on for five months.
Having thus persuaded, rather misled, the purchaser by his own conduct that he acquiesced in his ownership he somersaulted to grab the property with con structions by staking his own claim and attempting to unset tle the legal effect of his own conduct by taking recourse to law.
To curb and control such unwarranted conduct the courts have extended the broad and paramount considerations of equity, to transactions and assurances, express or im plied to avoid injustice.
Legal approach of the High Court, thus, that no estoppel could arise unless notice under Section 8 of the Rajasthan Pre emption Act (In brevity 'the Act ') was given by the seller and pre emptor should have had occasion to pay or tender price ignores the fallacy that Estoppel need not be specifically provided as it can always be used as a 353 weapon of defence.
In the Privy Council decision, referred earlier, the court was concerned with Oudh Laws Act (18 of 1876) which too had an identical provision for giving notice by seller.
No notice was given but since pre emptor knew that the property was for sale and he had even obtained details of lots he was precluded from basing his claim on pre emption.
Exception, to this universal rule or its non availabili ty, is not due to absence of any provision in the Act ex cluding its operation but welfare of society or social and general well being.
Protection was, consequently, sought not on the rationale adopted by the High Court that in absence of notice under Section 8 of the Act estoppel could not arise but under cover of public policy.
Reliance was placed on Shalimar Tar Products vs H.C. Sharma, ; , a decision on waiver, and Equitable Life Assurance Society of the United States vs Reed, 14 Appeal Cases 587, which laid down that there could be no estoppel against statute.
Equi ty, usually, follows law.
Therefore that which is statutori ly illegal and void cannot be enforced by resorting to the rule of estoppel.
Such extension of rule may be against public policy.
What then is the nature of right conferred by Section 9 of the Act? In Bishen Singh vs Khazan Singh, ; this Court while approving the classic judgment of Mahmood, J. in Gobind Dayal vs Inayatullah, ILR 7 All 775 (FB). 'that the right of pre emption was simply a right of substitution ' observed that, 'courts have not looked upon this right with great favour, presumably, for the reason that it operated as a clog on the right of the owner to alienate his property.
In Radha Kishan vs Shridhar, AIR 1960 SC 1369 this Court again while repelling the claim that the vendor and vendee by accepting price and transferring pos session without registration of sale deed adopted subterfuge to defeat the right of pre emption observed that, 'there were no equities in favour of a pre emptor, whose sole object is to disturb a valid transaction by virtue of the rights created in him by statute.
To defeat the law of pre emption by any legitimate means is not fraud on the part of either the vendor or the vendee and a person is entitled to steer clear of the law of pre emption by all lawful means '.
Such being the nature of right it is harsh to claim that its extinction by conduct would amount to statutory illegality or would be opposed to public policy.
The distinction be tween validity and illegality or the transaction being void is clear and well known.
The former can be waived by express or implied agreement or conduct.
But not the latter.
The provision in the Act requiring a vendor to serve the notice on persons having right of pre emption is condition of validity of transfer, and therefore a pre emptor could waive it.
Failure to serve notice as 354 required under the Act does not render the sale made by vendor in favour of vendee ultra vires.
The test to deter mine the nature of interest, namely, private or public is whether the right which is renunciated is the right of party alone or of the public also in the sense that the general welfare of the society is involved.
If the answer is latter then it may be difficult to put estoppel as a defence.
But if it is right of party alone then it is capable of being abnegated either in writing or by conduct.
The Act does not provide that in case no notice is given the transaction shall be void.
The objective is to intimate the pre emptor who may be interested in getting himself substituted.
The Act does not debar the pre emptor from giving up this right.
Rather in case of its non exercise within two months, may be for the financial reasons.
the right stands extinguished.
It does not pass on to anyone.
No social disturbance is caused.
It settles in purchaser.
Giving up such right.
expressly or impliedly cannot therefore be said to involve any interest of community or public welfare so as to be in mischief of public policy.
Even otherwise on facts found that the respondent knew of the sale deed.
assisted the appellant in raising the construction and after the construction was completed in the month of June he gave the notice in month of July for exer cise of the right and filed the suit in January would itself demonstrate that the conduct of the respondent was inequita ble and the courts in this country which are primarily the courts of equity, justice and good conscience cannot permit the respondent to defeat the right of appellant and invoke a right which has been called a weak and inequitable right.
In the result this appeal succeeds and is allowed.
The order of the High Court is set aside and that of the First Appellate Court is restored.
The appellant shall be entitled to his costs.
G.N. Appeal allowed.

summary/full:
The appellant purchased certain properties by way of registered sale deeds.
She constructed therein a godown and a two storeyed building with the knowledge and assistance of the respondent, who did not say anything about the common passage and had never expressed his intention to pre empt the sales.
Soon after the construction was over, the respondent sent a notice to the appellant claiming his right to pre empt the sale.
The appellant gave a reply to the notice.
However, respondent filed a suit for preemption in relation to the said properties.
The appellant pleaded that the respondent was estopped from claiming the pre emption.
Principle of waiver was also pleaded.
The Trial Court dis missed the suit of the respondent, and he preferred an appeal before the District Judge which was also dismissed.
Respondent preferred a regular second appeal before the High Court.
The High Court allowed the appeal holding that the principles of estoppel and waiver had no application against the pre emptor to preempt the suit, and set aside the orders of the Courts below.
Aggrieved against the High Court 's order the appellant has preferred this appeal, by special leave.
Allowing the appeal, this Court, HELD: 1.1 Estoppel is a rule of equity flowing out of fairness striking on behaviour deficient in good faith.
It operates as a check on 350 spurious conduct by preventing the inducer from taking advantage and assailing forfeiture already accomplished.
It is invoked and applied to aid the law in administration of justice.
But for it great many injustice may have been perpetrated.
[162D E] 1.2 Legal approach of the High Court, that no estoppel could arise unless notice under Section 8 of the Rajasthan Pre emption Act was given by the seller and pre emptor should have had occassion to pay or tender price ignores the fallacy that Estoppel need not be specifically provided as it can always be used as a weapon of defence.
[162G H] 2.
There can be no estoppel against statute.
Equity usually follows law.
Therefore, that which is illegal cannot be enforced by resorting to rule of estoppel.
Such an exten sion may be against public policy.
The distinction between validity and illegality or the transaction being void is clear and well known.
The former can be waived by express or implied agreement or conduct.
But not the latter.
[163D & F G] Shalimar Tar Products Ltd. vs H.C. Sharma, ; ; Equitable Life Assurance Society of the United States vs Reed, 14 AC 587; Bishan Singh vs Khazan Singh, ; and Radha Kishan vs Shridhar, AIR 1960 SC 1369, referred to.
The provision in the Pre emption Act requiring a vendor to serve notice on persons having right of pre emp tion is condition of validity of transfer, and therefore a pre emptor could waive it.
Failure to serve notice as re quired under the Act does not render the sale made by vendor in favour of vendee ultra vires.
The test to determine the nature of interest, namely, private or public is whether the right which is renunciated is the right of party alone or of the public also in the sense that the general welfare of the society is involved.
If the answer is latter then it may be difficult to put estoppel as a defence.
The Act does not provide that in case no notice is given the transaction shall be void.
The objective is to intimate the pre emptor who may be interested in getting himself substituted.
It does not debar the pre emptor from giving up this right.
Rather in case of its non exercise within two months, may be for financial reasons, the right stands extinguished.
It does not pass on to anyone.
No social disturbance is caused.
It settles in purchaser.
Giving up such right, expressly or impliedly cannot therefore be said to involve any interest of community or public welfare so as to be in mischief of public policy.
[163H; 164A C] Jethmal vs Sajanumal, [1947] Mewar Law Reports 36, over ruled.
351 Atam Prakash vs State of Haryana, ; ; Bishan Singh vs Khazan Singh, ; ; Radha Kishan vs Sridhar, ; ; Naunihal Singh vs Ram Ratan, ILR 39 All. 127; Ram Rathi vs Mt. Dhiraji, [1947] Oudh 81; Gopinath vs R.S. Nand Kishore, AIR 1952 Ajmer 26; Abdul Karim vs Babulal, AIR 1953 Bhopal 26 and Kanshi Ram Sharma vs Lahori Ram, , approved.
Pateshwari Partab Narain Singh vs Sitaram, AIR 1929 PC 259, referred to. 4.
In the instant case, the fact that the respondent knew of the sale deed, assisted the appellant in raising the construction and after the construction was completed in the month of June he gave notice in the month of July for exer cise of the right and filed the suit in January, would itself demonstrate that the conduct of the respondent was inequitable and the courts in this country which are pri marily the courts of equity, justice and good conscience cannot permit the respondent to defeat the right of appel lant and invoke a right which has been called a weak and inequitable right.
[164D E]