judgement:
Civil Appeals NOS.
1311 and, 1312 of 1973.
From the Judgment and Order dated 26/27.6.1972 of the Gujarat High Court at Ahmedabad in Wealth Tax Reference Nos. 3, 4, 20, 25, 29, 32, 32 & 36 of 1970 and 1 of 1971.
S G. Manchanda, B.B. Ahuja, R.N. Poddar and Miss A. Shubhashini for the Appellant.
S.T. Desai Mrs. A.K. Verma and K.J. John for the Respondents.
These appeals are directed against the judgment of the Gujarat High Court disposing of a wealth tax reference and answering the following question of law against the Revenue "Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the provisions of section 2 (m) (iii) (a) were not applicable in respect of liabili 300 ties arising under the wealth tax assessments of the asses see for the assessment years 1960 61 and 1961 62 ?" For the purpose of determining the assessee 's net wealth in assessment proceedings under the Wealth Tax Act in respect of the assessment years 1961 62 and 1962 63, the corresponding valuation dates being March 31, 1961 and March 31, 1962, the assessee claimed a deduction of certain sums representing the estimated liabilities on account of income tax and wealth tax.
The claim was rejected by the Wealth Tax Officer in both assessments.
On appeal by the assessee the Appellate Assistant Commissioner of Wealth Tax allowed a part of the claim.
In the appeal pertaining to the assessment year 1961 62, he allowed a deduction of Rs. 22,679 on account of wealth tax relating to the assessment year 1960 61, Rs.39,692 on account of wealth tax relating to the assessment year 1961 62 and Rs. 2,25,053 on account of income tax for the assessment year 1961 62.
In the appeal pertaining to the assessment year 1962 63, the Appellate Assistant Commissioner allowed the total claim of Rs. 9,02,377 comprising a deduction of Rs 39,692 on account of wealth tax relating to the assessment year 1961 62, Rs. 77,716 on account of wealth tax for the assessment year 1962 63 and the balance on account of income tax for the assessment year 1962 63.
The Revenue appealed to the Appellate Tribunal.
In the appeal for the assessment year 1961 62 in contended inter alia, that the assessee was not entitled to a deduction of the wealth tax liability of Rs. 22,679 in respect of the assessment year 1960 61 because he had disputed the said liability in appeal and, therefore, the deduction was barred by reason of section 2(m) (iii) (a) of the Wealth Tax Act.
Similarly, in the appeal for the assessment year 1962 63, the Revenue urged that the assessee was not entitled to a deduction of the wealth tax liability of Rs. 39,692 for the assessment year 1961 62 as he had disputed that liability in appeal and the deduction was barred by section 2(m) (iii) (a) of the Act.
The Appellate Tribunal did not accept the contention of the Revenue and held that s.2(m) (iii) (a) was not attracted in respect of those liabilities as they had `G not become payable on the relevant valuation dates.
At the instance of the Revenue, a reference, being Wealth Tax Reference No. 20 of 1970, was made to the Gujarat High Court for its opinion on the question of law set forth earlier.
It may be mentioned that another question was also framed in that reference, and that this reference along with several other 301 references were disposed of together by the Gujrat High Court by, its judgment in Commissioner of Wealth Tax vs Kantilal Manilal.1 Against that judgment corresponding special leave petitions were filed by the Revenue in this Court, but all the special leave petitions, except Special Leave Petitions (Civil) Nos 505 and 506 of 1973, arising out of Wealth Tax Reference No. 20 of 1970, were dismissed on the merits, and in respect of these two special leave petitions the grant of special leave was restricted to the consideration of the question set forth earlier.
While dealing with the question whether the provisions of section 2(m) (iii) (a) of the Wealth Tax Act barred the deduction of the wealth tax liabilities claimed by the assessee the High Court held that as the liabilities were not outstanding on the respective valuation dates section 2(m) (iii) (a) was not attracted even though the assessee had challenged in appeal that the liabilities were not payable by him.
In these appeals, Shri S.C. Manchanda, appearing for the Revenue, contends that the High Court has erred insofar as it has held that the wealth tax liabilities were not outstanding on the valuation dates.
His case is that the bar imposed by section 2(m) (iii) (a) operates against the claim to deduction made by the assessee.
Shri S.T. Desai, appearing for the assessee, urges that section 2(m) (iii) (a) is not attracted because no amount of tax was outstanding on the respective valuation dates and in any event, he says, the appeals challenging those liabilities were not pending on the valuation dates, and therefore the further requirement, according to him, of the statute was not satisfied.
Section 2(m) of the Wealth Tax Act provides: "(m) "net wealth" means the amount by which the aggregate value computed in accordance with the provisions of this Act of all the assets, wherever located, belonging to the assessee on the valuation date, including assets required to be included in his net wealth as on that date under (z this Act, is in excess of the aggregate value of all the debts owed by the assessee on the valuation date other than (i) xx xx xx (1) (1973).
, z z 302 (ii) XX XX XX (iii) the amount of the tax, penalty or interest payable in consequence of any order passed under or in pursuance of this Act or any law relating to taxation of income or profits, or the (34 of 1953), the Expenditure Tax Act, , or the (18 of 1958), (a) which is outstanding on the valuation date and is claimed by the assessee in appeal, revision or other proceeding as not being payable by him; or (b) which, although not claimed by the assessee as not being payable by him, is nevertheless outstanding for a period of more than twelve months on the valuation date " In the process of computing the net wealth, the statute requires the aggregation of the value of all the debts owed by the assessee on the valuation date, except those debts which are specifically described in sub clauses (i), (ii) and (iii).
We are concerned with sub clause (iii) (a).A debt which ordinarily falls within the scope of the substantive provision of section 2(m) cannot be taken into account for the purpose of determining the net wealth if it falls within the term of sub clause (iii) (a) of section 2(m).
Sub clause (iii) (a) speaks the amount of the tax, penalty or interest payable in consequence of any order passed under or in pursuance of any of the tax laws mentioned therein, which is outstanding on the valuation date and is claimed by the assessee in appeal, revision or other proceeding as not being payable by him.
For the assessment years 1961 62 and 1962 63 under reference, the corresponding valuation dates, as we have mentioned earlier are March 31,1961 and March 31, 1962 respectively The claim to deduction in the wealth tax liability for the assessment year 1961 62 relates to Rs. 22,679 representing the wealth tax liability for the assessment year 1960 61.
The assessment order for the assessment year 1960 61 was made on March 24, 1961 but the notice of demand was served on the assessee on April 11, 1961.
It is apparent that the notice of demand was served some days after the valuation date, March 31, 1961.
In the wealth tax assessment of the assessment year 1962 63 the deduction claimed relates to the wealth tax liability of Rs. 39,692 for the assessment year 1961 62.
The assessment order 303 on March 23, 1962 but the notice of demand was served on April 11, 1962 and that notice of demand was also served a few days after the relevant valuation date, March 31,1962.
Therefore, the notice of demand in each case was served after the valuation date had passed.
There was no demand already subsisting on the respective valuation dates.
In order to invoke section 2 (m) (iii) (a) the Revenue must establish that an amount of the tax was outstanding on the valuation date.
An amount of tax is outstanding if it is payable and has remained unpaid.
In other words, if there is a debt due and there has been no payment of the debt.
In a case under the Indian Income Tax Act, 1922, Doorga Prasad vs The Secretary of State, (1) the Privy Council laid down that an income tax liability becomes a debt due when payment of the tax is demanded by a notice issued under section 29 of the Act.
There are three stages in respect of an income tax liability.
The tax liability comes into existence on the last day of the previous year relevant to the assessment year.
Thereafter when the assessment proceedings take place, an assessment order is made quantifying the assessable income and determining the tax payable.
Thereupon, a notice of demand is served for payment of the tax, and the tax then becomes payable and a debt becomes due to the Revenue.
That was the position under the Indian Income Tax Act, 1922 and continues to be the position under the Income Tax Act, 1961.A survey of the provisions of the Wealth Tax Act will demonstrate that in all material respects the scheme of the Wealth Tax Act is in this regard substantially the same as that incorporated in the Income Tax Act.
The provisions for the assessment are of an assessee are contained in sections 14 to 17A of the Wealth Tax Act.
The notice of demand requiring payment of the tax, interest or penalty is issued pursuant to section 30 of the Act.
If the amount remains unpaid within the period specified in the notice the amount of the tax is said to be outstanding.
A question was raised whether for the purposes of attracting section 2(m) (iii) (a) it is not sufficient that the tax liability has 6 accrued and it is necessary that a tax demand should have been made by the assessing authority.
It seems to us that section 2(m) (iii) (a) comes into play only after a demand for payment of tax has been made.
The clause, read in its entirety, speaks of a debt owed by the (1) 304 assessee represented by an amount of tax "payable in consequence of any order" passed under the relevant tax statute "outstanding on the valuation date".
The expression "debt owed" has been held by this Court in Kesoram Industries & Cotton Mills Ltd. vs Commissioner of Wealth Tax (Central), Calcutta, (1) to mean a debt which the assessee is under an obligation to pay and, therefore, it includes both a liability to pay in praesenti as well as a liability to pay in future an ascertainable sum of money.
Both kinds of liabilities are included within the expression "debt owed".
But when we refer to the clause under consideration, it narrows the scope down to a liability which exists in present time.
That is so because the clause speaks of tax outstanding in consequence of an order passed under the relevant taxing statute.
As discussed earlier, tax becomes payable in consequence of such order when a notice of demand is served on the assessee.
In the present case, it is clear that as the notices of demand respecting the wealth tax liability of Rs 22,679 and Rs. 39,692 were served on the assessee subsequent to the valuation dates, it can not be said that on the respective valuation dates the amounts of tax were outstanding.
In the result a material requirement of section 2 (m) (iii) (a) is not satisfied and therefore that provision cannot be invoked by the Revenue.
We now propose to consider the other point in controversy.
As is apparent.
if the Revenue desires to invoke section 2 (m) (iii) (a), it must establish not only that the amount of the tax, penalty or interest envisaged in that provision is outstanding on the valuation date but it must also show that the amount is claimed by the assessee in appeal, revision or other proceeding as not being payable by him.
The question is whether it is a necessary requirement of the provision that the appeal, revision or other proceeding should be pending on the valuation date itself or it suffices that the appeal, revision or other proceeding is filed subsequent to the valuation date.
In the present case the appeal against the wealth tax assessment order for the assessment year 1960 61 was filed on May 9, 1961, and the appeal against the wealth tax assessment order for the assessment year 1961 62 was filed on May 9, 1962.
Both the appeals were filed, therefore, after the respective valuation dates, March 31, 1961 and March 31, 1962 corresponding to the assessment years 1961 62 and 1962 63 (1) ; 305 under reference.
But for section 2(m) (iii) an amount of a tax outstanding on the valuation date would constitute a debt owed by the assessee on the valuation date, and the assessee would be entitled to claim its deduction in the process of computing his net wealth.
Parliament, however, intended that if the amount of the tax was challenged by the assessee as not being payable by him by recourse to any of the statutory remedies prescribed in the relevant Act, such 1 claim to deduction would be barred.
Plainly, in order to give full effect to that intent it is immaterial whether the statutory remedy is being availed of on the valuation date or has been taken thereafter.
A challenge by the assessee that the amount outstanding is not payable by him is sufficient to bar his claim to deduction whether the challenge is subsisting on the valuation date or is initiated after the valuation date has passed.
Accordingly, we are of opinion that the appeals in the present case, though filed subsequent to the respective valuation dates, would nonetheless have sufficed to bring the second requirement of section 2(m)` (iii) (a) into operation.
The contrary view in respect of section 2 (m) (iii) (a) adopted by the Madras High Court in Late P. Appavoo Pillai vs Commissioner of Wealth Tax, Madras(4) appears to us to be incorrect.
However, as in order to invoke the bar prescribed by section 2 (m) (iii) (a), it is necessary for the Revenue to establish that both requirements are satisfied, that is to say, that an amount of the tax is outstanding on the valuation date and further that the amount is claimed by the assessee in an appeal as not being payable by him, and the Revenue has been unable to show that in the present case the sum of Rs. 22,679 and Rs. 39,692 representing the wealth tax liabilities for the assessment years 1960 61 and 1961 62 were outstanding on the respective valuation dates corresponding to the assessment year under reference, the Revenue must fail.
In the result, the appeals are dismissed.
S.R. Appeals dismissed.

dataset_name: IN-Abs

summary/full:
For the assessment years 1961 62 and 1962 63, the corresponding valuation dates of which were March 31, 1961 and March 31, 1962, assessment orders were made under the Wealth Tax Act on March 24, 1961 and March 23, 1962 respectively while the notice of demands were served on the assessee on April 11, 1961 and April 11, 1962 respectively.
Against the said notices of demand the assessee preferred appeals on May 9, 1961 and May 9, 1962 respectively.
For the purpose of determining the assessee 's net wealth, the assessee 's claim for a deduction of certain sums representing the estimated liabilities on account O? ' income tax and wealth tax was rejected in both assessments by the Wealth Tax Officer.
On appeal by the assessee, the Appellate Assistant Commissioner of Wealth Tax allowed a part of the claim.
In appeal before the Appellate Tribunal, the Revenue contended that since the assessee had disputed the wealth tax liability of Rs. 22,679/ in respect of the assessment year 1960 61 and the sum of Rs. 39,692/ in respect of the assessment year 1961 62, he was not entitled to a deduction of the same, being barred by reason of the provisions of section 2(m) (iii) (a) of the Wealth Tax Act.
The Tribunal rejected the said contention and held that section 2 (m)(a) was not attracted as the tax had not become payable on the relevant valuation dates.
The Wealth Tax References made at the instance of the Revenue were decided in favor of the assessee by the High Court of Gujarat by its common judgement in Commissioner of Wealth Tax vs Kantilal Manilal reported in The present appeal by special leave arises therefrom.
Dismissing the appeal, the Court ^ HELD: 1.1 In order to invoke the bar prescribed by Section 2(m) (iii) (a) of the Wealth Tax Act it is necessary for the Revenue to establish that both 298 requirements therein are satisfied, that is to say, that an amount of the tax is outstanding on the valuation date and further that the amount is claimed by the assessee in an appeal as not being payable by him.
[302E F] 1.2 An amount of tax is outstanding if it is payable and has remained unpaid.
In other words, if there is a debt due and there has been no payment of the debt.
There are three stages in respect of an income tax liability.
The tax liability comes into existence on the last day o f the previous year relevant to the assessment year.
Thereafter when the assessment proceedings take place an assessment order is made quantifying the assessable income and determining the tax payable.
Thereupon, a notice of demand is served for payment of the tax, and the tax then becomes payable and a debt becomes due to the Revenue.
A survey of the provisions of the Wealth Tax Act contained in Sections 14 to 17 and Section 30 makes it clear that in all material respects the scheme of the Wealth Tax Act is in this regard substantially, the same as that incorporated in the Income Tax Act.
The notice of demand requiring payment of the tax, interest or penalty is issued pursuant to Section 30 of the Act.
If the amount remains unpaid within the periods specified in the notice the amount of the tax is said to be outstanding [303D F] 1.3 Section 2(m)(iii)(a) of the Wealth Tax Act comes into play only after a demand for payment of tax has been made.
The clause, read in its entirety, speaks of a debt owed by the assessee represented by an amount of tax "payable in consequence of any order" passed under the relevant tax statute and "outstanding on the valuation dates." [303H; 304A] 1.4 The expression "debt owed" is a debt which the assessee is under an obligation to pay and, therefore, it includes both a liability to pay in present as well as a liability to pay in future an ascertainable sum of money.
Both kinds of liabilities are included within the expression "debt owed".
But Section 2(m)(iii)(a) narrows the scope down to a liability which exists in present time because the clause speaks of tax outstanding in consequence of an order passed under the relevant taxing statute.
[304B C] 1.5 In the present case, the notice of demand in each case was served after the valuation date had been passed.
There was no demand already subsisting on the respective valuation dates.
As the notices of demand respecting the wealth tax liability of Rs. 22,679 and Rs. 39,692 were served on the assessee subsequent to the valuation dates, if cannot be said that on the respective valuation dates the amount of tax were outstanding.
In the result a material requirement of Section 2(m) (iii) (a) is not satisfied and therefore, it cannot be invoked by the Revenue.
[304D E] Commissioner of Wealth Tax vs Kantilal Manilal, , approved.
Doorga Prasad vs The Secretary of State, , quoted with approval 299 Kesoram Industries & Cotton Mills Ltd. vs Commissioner of Wealth Tax (Central), Calcutta, ; , followed.
1.6 The appeals in the present case, though filed subsequent to the respective valuation dates, would none the less have sufficed to bring the second requirement of section 2 (m) (iii) (a) into operation.
But for Section 2 (m) (iii) (a) an amount of a tax outstanding on the valuation date would constitute a debt owed by the assessee on the valuation date, and the assessee would be entitled to claim its deduction in the process of computing his net wealth.
Parliament, however, intended that if the amount of the tax was challenged by the assessee as not being payable by him by recourse to any of the statutory remedies prescribed in the relevant Act, such claim to deduction would be barred.
Plainly, in order to give full effect to that intent it is immaterial whether the statutory remedy is being availed of on the valuation date or has been taken thereafter.
A challenge by the assessee that the amount outstanding is not payable by him is sufficient to bar his claim to deduction whether the challenge is subsisting on the valuation date or is initiated after the valuation date has passed.
[305 D; A C] Late P. Appauoo Pillai vs Commissioner of Wealth Tax, Madras, overtuled.


judgement:
nd the writ petitions of the appellants will have to be heard by the High Court on merits.
Since the appellants have applied for amendment of their respective writ petitions and the Court feels that the amendments sought to be made are of such a nature that they require to be considered and dealt with by the High Court, the same are allowed.
[400G H; 401A D; F H] 387 3(i).
It is difficult to reconcile to the decision in Trilok Singh & Co, 's case.
The Court 's attention was not drawn in that case to Rule 8 of the said Rules.
Rule 8 to which the court has adverted earlier is the one as substituted by Notification No. 1995/XXIX E 55 (A) 75 dated May 25, 1977.
The original rule, however, was to the same effect and under it also the conclusion reached by the Rent Control Inspector contained in his report of the inspection of the building was required to be posted on the notice board of the office of the District Magistrate for the information of the general public, and the order of allotment could not be passed before the expiration of three days from the date of such posting and, if in the meantime any objection was received, not before the disposal of such objection.
The District Magistrate was, therefore, not justified in immediately directing the vacancy to be notified and this act on his part was a clear violation of the statutory requirements of Rule 8 and had the result of depriving the appellant firm of an opportunity of hearing which Rule 8 conferred upon it.
On this ground alone the appellant firm should have succeeded.
The observation of this Court in Trilok Singh & Co.s Case that it was unnecessary for the District Magistrate to hear the appellants before notifying the vacancy does not, therefore, appear to be correct.
It equally does not, appear to be correct to hold that an order notifying the vacancy did not injury and caused no prejudice to the interests of any party because an order notifying the vacancy could be objected to and if any objections were filed, they would have to be decided after considering the evidence that the objector or any other person concerned might adduce and that after an order of allotment or release was passed following upon the notification of vacancy, the aggrieved person could file a review application or an appeal under s.18.
In so holding the court appears to have overlooked that the stage for objecting to a vacancy being notified was not after it was notified and that under the said Rule 8 the notification of vacancy could only be after the objections were heard and disposed of.
[398H; 399A F] 3(ii).
It is also difficult to understand how a party who has no right to appear at the original hearing of an application could be said to have a right of review or an appeal against an order passed on that application.
From the very nature of things, a right to defend an application in the first instance is a very different matter from a right to seek a review of the order on that application or a right of appeal against that order.
In its very nature and scope, an original hearing differs substantially from a review or an appeal party applying for review or an appellant cannot as of right lead evidence Further, it is he who comes before the authority challenging an order passed to his prejudice and is not in the same position as the party against whom an order is sought in the first instance.
The correctness of Trilok Singh & Co. 's case is, therefore, open to doubt.
[400 B C] & CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3552 of 1983 From the Judgment and order dated 5.10.1982 of the High Court of Judicature at Allahabad in Civil Misc.
Writ Petition No, 14310 of 1981.
388 Civil Appeal No. 8553 of 1983 From the Judgment and order dated 5.10.82 of the High Court of Allahabad in Civil Misc.
Writ No. 1058 of 1982.
Shanti Bhushan, R.K. Jain, R.P. Singh, Advs.
with him for the Appellants in C. A. No. 8552/83.
Mr. S.N. Kacker, Sr.
Adv., Mr. R.B. Mahrotra, Adv.
with him for the Respondents in C. A. No. 8552/83.
Mr. Soli J. Sorabjee, Sr.
Adv., Mr. E.C. Agarwala, Adv.
with him for the Appellants in C. A. No. 8553/83.
Mr. Anwar Ahmed, Sr. Adv., Mr. Ali Ahmed & Miss Halida Khatoon, Advs.
with him for the Respondents in C. A. No. 8553/83.
The following Judgment of the Court was delivered by MADON, J. The Appellants in each of the above two Appeals by Special Leave granted by this Court filed in the High Court of Allahabad a writ petition under Article 226 of the Constitution of India challenging an order notifying a deemed vacancy under sub section (2) of section 12 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972).
This Act will hereinafter be referred to in short as "the Act".
The High Court dismissed both these petitions holding that they were premature.
In coming to this conclusion the High Court relied upon a judgment of a two Judge Bench of this Court in Trilok Singh & Co. vs District Magistrate, Lucknow, & Ors.(1) The said decision of this Court was given prior to the amendment of the Act by the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976(U.P. Act No. 28 of 1976) (hereinafter in short referred to as "the 1976 Amendment Act").
The 1976 Amendment Act came into force on July 5, 1976.
It is unnecessary for the purpose of deciding these Appeals to set out the facts in great detail The subject matter of Civil Appeal (1) [1976] 3 S.C.R.942 389 No. 8552 of 1983 is a shop bearing Municipal No. 24/34, situate at Mahatma Gandhi Marg, Civil Lines Market, Allahabad.
According to the Appellants in this Appeal, the premises were let out to their father, Sheobux Roy, in 1937 and the Appellants ' father commenced carrying on business in the said premises in the name and style of Messrs B.N. Rama & Co. The Appellants ' father died on or about February 3, 1941, and according to these Appellants the tenancy was inherited by them being his sons.
Thereafter, there was a partition amongst the Appellants but in spite of it all the three brothers continued to carry on their businesses separately in the same premises though under different names.
While according to the Appellants the tenancy continued jointly with all of them, according to the contesting Respondents, who are the landlords, the tenancy rights belonged to the First Appellant, Ganpat Roy, alone, who is carrying on business in the said premises as Messrs B.N. Rama & Co. (Stores) and who paid the rent and used to recover rent from his other brothers in respect of the businesses carried on by them in the said premises.
Under section 12 (2) of the, Act, a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family.
The definition Of "family" given in clause, (g) of section 3 of the Act does not include a son in law or a daughter in law.
By a Deed of Partnership dated August 10, 1976, the First Appellant entered into a partner ship with his son, Ramesh Roy, and his son in law, Swarup Kailash, to carry on business as authorized retail dealer of the Mafatlal, Group of Mills under the firm name and style of Messrs B.N. Rama & Co. (Textiles) According to the Appellants, the said partner ship is Occupying less than one seventh area of the said premises.
Thereafter in 1979, the landlords filed a suit for eviction against the First Appellant on the ground that he had sublet the said premises to his son in law.
For some reason not apparent on record, the First Appellant 's defence in the suit was struck out.
The First Appellant filed a revision application to the Allahabad High Court and further proceedings in that suit were stayed by an interim order.
That suit was withdrawn some time before the hearing of these Appeals.
On or about March 19, 1981, one Ramesh Nath Kapoor and Radhey Shyam Kapoor, who are related to the landlords.
filed an application for allotment of the said premises to them on the ground that there was a deemed vacancy under section 12 (2) of the 390 Act in respect of the said premises.
Thereupon the Rent Control and Eviction Officer got the said premises inspected by a Rent Control Inspector who made his report on May 23, 1981, to the effect that as the matter relating to the said premises was pending in the High Court and a stay order had been granted by the High Court, there was no need to take any action.
It thereafter appears that in order to clarify the position with respect to the stay order, the Rent Controller issued notices to the parties.
The Appellants did not appear on the date fixed for hearing and the Rent Controller by his order dated August 13, 1981, held that there was a deemed vacancy in respect of the said premises and ordered such deemed vacancy to be notified and fixed the hearing of the application for allotment on September 2, 1981.
Thereafter a fresh inspection report was made on September 1, 1981, by the Rent Control Inspector to the effect that the requirement of the applicants for allotment of the said premises was genuine.
It further appears that an application for release of the said premises was also made by the landlords.
On September 2, 1981, the Rent Controller fixed September 11, 1981, for the hearing of the said application for allotment as also of the said application for release.
On September 11, the said order directing notification of deemed vacancy and for permission to urge their objections and to contest the said application for release.
By an order dated September 30, 1981, the Rent Controller set aside the order notifying the deemed vacancy but refused permission to the Appellants to contest the said application for release of the said premises on the ground that if it were held that there was no vacancy, the question of release would not arise and if it were held that there was a vacancy, the occupant would go out of the picture and thereafter the matter would lie between the District Magistrate and the landlord and that no other person could contest the release of the premises to the landlord according to a judgment of the Allahabad High Court.
Thereafter, by his order dated November 11, 1981, the Rent Controller negatived the contentions of the Appellant and held that there was a deemed vacancy in respect of the said premises and ordered such vacancy to be notified.
The Appellants thereupon filed the said writ petitions in the High Court which, as mentioned earlier, was dismissed.
During the pendency of this Appeal, further proceedings with respect to the release or allotment of the said premises have been stayed by this Court.
The subject matter of Civil Appeal No. 8553 of 1983 is also 391 non residential premises consisting of a house bearing Nos. 51 and 52, known as West Mount and West View Estates situate on Survey No. 256 in Santhat Cantonment, Ranikhet, District Almora, Uttar Pradesh.
By a registered Indenture of Lease dated November 10, 1964, the said property was leased to the First Appellant in this Appeal, Smt.
Kaushal Rekhi, for a period of few years with two options for renewal for a like period.
The First Appellant has been conducting a hotel in the said premises known as "West View Hotel".
Respondents Nos. 2 to 4 to the said Appeals are the present landlords of the said property.
On or about June 1, 1968, the First Appellant entered into a deed of partnership with her son.
Thereafter the First Appellant exercised two Options given to her.
According to the First Appellant, as her son went to the United States for advanced training in hotel managements the said partnership was dissolved and she took her daughter in law, Smt.
Sunita Rekhi, the Second Appellant in this Appeal, as a partner in the said business by a Deed of Partnership dated October 22, 1975.
According to the first Appellant, she had intimated the fact of this partnership to the District Magistrate who is the prescribed authority under the Act.
On October 4, 1980, the landlords made an application to the prescribed authority for release of the said property in their favour on the ground that there was a deemed vacancy in respect thereof.
By his order dated May 6, 1981, the Rent Controller and Eviction Officer held that there was a deemed vacancy in respect of the said premises.
According to the Appellants, the Rent Controller had earlier by his order dated January 20, 1981, held that there was no deemed vacancy in respect of the said premises but had thereafter without any jurisdiction suo moto held a fresh inquiry and passed the said order dated May 6, 1981.
According to the contesting Respondents, the earlier order was passed on some of the objections raised by the Appellants on the said application for release and the other objections were disposed of by the said order dated May 6, 1981.
The Appellants thereafter filed their said writ petition in the High Court which, as aforesaid was dismissed.
In their respective writ petitions, the Appellants had raised various contentions.
Several of them were contentions of law relating to the interpretation of the definition of the word "family" in clause (g) of Section 2 and of other Sections of the Act.
The Appellants in Civil Appeal No. 8552 of 1983 had also contended that sub sections (1) and (2) of Section 12 of the Act were discrimi 392 natory and unconstitutional as infringing Articles 14 and 19 of the Constitution of India.
None of these contentions were dealt with by the High Court because, as mentioned earlier, it held that the writ petitions were premature.
It was urged on behalf of the Appellants in Civil Appeal No. 8552 of 1983 that in any event the point of constitutionality raised by them ought to have been decided by the High Court because an authority constituted by an Act has no power to determine the constitutionality of that Act or of any provision thereof.
This does not appear to be a just criticism of the judgment of the High Court.
Apart from stating that the said sub sections were unreasonable, discriminatory and unconstitutional and, therefore, violated Articles 14 and 19 of the Constitution, no, reason was given nor any ground set out in support of the said contention and most probably either the attention of the High Court was not drawn to this ground or it was not urged before the High Court at the hearing of the writ petition.
At the hearing of these Appeals, the said Appellants have made an application to amend their writ petition setting out elaborately their grounds and reasons in support of the said contention and have applied for leave to amend their said writ petition in case their Appeal succeeds and their writ petition is sent back to the High Court for reconsideration.
They have also prayed for the State of Uttar Pradesh to be added as Respondent No. 5 to the said writ Petition.
The Appellants in the other Appeal have also similarly prayed for the amendment of their writ petition in case they succeed in their Appeal.
The question whether these applications should be granted or not falls to be considered only if these Appeals are allowed.
It will be convenient to see the relevant provisions of the Act before we turn to the Trilok Singh & Co. 's Case.
Clause (g) of Section 3 defines "family" as follows: "(g) 'family ', in relation to a landlord or tenant of a building, means, his or her (i) spouse, (ii) male lineal descendants, 393 (iii)such parents, grand parents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her.
and includes, in relation to a landlord, any female having a legal right of residence in that building".
What is pertinent to note about this definition is that a son in law and a daughter in law are not expressly included in this definition.
Section 11 of the Act prohibits a person from letting any building except in pursuance of an allotment order issued under Section 16.
Sub Sections 2 and 4 of Section 12 provide as follows: "(2) In the case of a non residential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building. "(4) Any building or part which a landlord or tenant has ceased to occupy within the meaning of sub section (1), or sub section (2), or sub section (3), sub section (3 A) or sub section (3 B), shall, for the purposes of this Chapter, be deemed to be vacant," Section 13 provides that where a landlord or tenant ceases to occupy a building or part thereof, no person is to occupy it in any capacity on his behalf or otherwise than under an order of allotment or release under Section 16 Section 15 casts a duty on every landlord or tenant to give intimation of vacancy to the District Magistrate.
Under Section 16, the District Magistrate may, by an order, require the landlord to let any building which is or has fallen vacant or is about to fall vacant, or a part of such building, to any person specified in the order (called the allotment order) or may release the whole or any part of such building in favour of the landlord.
Under the proviso to Section 16(1), in the case of a vacancy referred to in section 12(A), the District Magistrate is to 394 give an opportunity to the landlord or the tenant, as the case may be, of showing that the said section is not attracted to his case before making an order under clause (a) of section 16(1), that is before making an allotment order.
This proviso was inserted by the 1976 Amendment Act.
Strangely enough, in the case of release of the premises to the landlord the proviso does not require any such opportunity to he given to the tenant who would be the person affected by that order.
Sub section (2) of section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord Under sub section (4) of section 16, where the allottee or the landlord has not been able to obtain possession of the building allotted or released to him, as the case may be, the District Magistrate, on an application made to him in that behalf, may by order evict or cause to be evicted any person named in that order as well as every other person claiming under him or found in occupation, and may for that purpose use or cause to be used such force as may be necessary and put or cause to be put the allottee or the landlord in possession of the building or part thereof.
Sub section (5) of Section 16 provides as follows: "(5) (a) Where the landlord or any other person claiming to be a lawful occupant of the building or any part thereof comprised in the allotment or release order satisfies the District Magistrate that such order was not made in accordance with clause (a) or clause (b), as the case may be, of sub section (l), the District Magistrate may review the order: Provided that no application under this clause shall be entertained later than seven days after the eviction of such person.
(b) Where the District Magistrate on review under this sub section sets aside or modifies his order of allotment or release, he shall put or cause to be put the applicant, if already evicted, back into possession of the building, and, may for that purpose use or cause to be used such force as ; may be necessary.
" Under sub section (7) of Section 16, every order made under that Section, subject to any order made under Section 18, is to be .
final, Under Section 18, as substituted by the 1976 Amendment 395 Act, no appeal lies against any order of allotment, reallotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge on any one or more of the following grounds, namely: (a) that the District Magistrate has exercised a jurisdiction not vested in him by law: (b) that the District Magistrate has failed to exercise a jurisdiction vested in him by law; (c) that the District Magistrate acted in the exercise of his jurisdiction illegally or with material irregularity.
On such application being made, the revising authority may confirm or rescind ` the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks fit.
Sub section (3) of section 18 provides that where an order of allotment or reallotment or release is rescinded, the District Magistrate shall, on an application made to him in that behalf, place the parties back in the position which they would have occupied but for such order or such part thereof as has y been rescinded, and may for that purpose use or cause to be used such force as may be necessary.
Prior to the substitution of section 18 by the 1976 Amendment Act, that section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, reallotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary.
Under section 34(8), for the purpose of any proceedings under the Act and for purposes connected therewith the authorities under the Act are to have such power and follows such procedure, principles of proof, rules of limitation and guiding principles as may be prescribed by rules made under the Act.
The Uttar Pradesh Urban Buildings (Regulation of Letting, 396 Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises.
Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under section 12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected.
The inspection of the building, so far as possible, is to be made in the presence of the landlord and the tenant or any other occupant.
The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of such objection.
Any objection received is to be decided after consideration of any evidence, which the objector or any other person concerned may adduce.
Rule 10 prescribes the procedure for allotment of a building where an application for allotment is made.
The material portion of sub rule (6) and of proviso (a) to that subrule are relevant and may be reproduced.
These provisions are as follows: "(6). a person who is deemed to have ceased to occupy a building within the meaning of Section 12(2), shall not be allotted that or any other non residential building for a period of two years from the date of such. deemed cessation: Provided that (a) If the District Magistrate is satisfied in a case referred to in Section 12(2) that the admission of partner or new partner is bona fide transaction and not a mere cover for subletting, he shall, if any application had been made in that behalf before the admission of such partner or new partner, allot the non residential ; building in question afresh to the newly constituted or reconstituted firm; X X X 397 Under Rule 19, where an allotment or release of a building or part thereof is ordered under section 16(1) on the ground inter alia of deemed vacancy within the meaning of section 12, no such order is to be executed until after the expiration of fifteen days from the service upon the occupant of a notice to vacate that building or part thereof, as the case may be.
We will now turn to Trilok Singh & Co. 'section case.
The facts in that case were that an application for release was made by the landlords in respect of certain residential premises of which the appellant firm claimed to be the tenant.
A Senior Inspector was directed to inspect the premises and make a report.
According to the report, the premises were in occupation of three persons, two of whom claimed to be the partners of the appellant firm.
The report stated, "After hearing the parties it would be proper to take further action".
On receipt of the report, the Rent Controller passed an order "Let the vacancy be notified" without granting any hearing to the appellant firm.
The appellant firm thereupon filed a writ petition in the High Court of Allahabad challenging the said order on the ground that it was passed in violation of the principles of natural justice.
The said writ petition was rejected summarily on the ground that it was premature and the proper remedy for the appellant firm was to approach the Rent Controller under section 16(5) (a) of the Act for review of the said order.
In appeal, this Court upheld the order of the Allahabad High Court.
This Court held that by reason of section 16(2) no order bf release could be passed under clause (b) of section 16(1) unless the District Magistrate was satisfied that the building was required by the landlord bona fide for occupation by himself or any member of his family or for any of the purposes specified in sub section (2) of section 16.
The Court further stated P that under clause (a) of section 16(5), where the landlord or any other person claiming to be a lawful occupant of the building comprised in the order of allotment or release satisfied the District Magistrate that such an order was not made in accordance with clause (a) or clause (b) of section 16(1), the District Magistrate could review his order and if on review he set aside or modified the order of allotment or release, he was empowered to put the applicant, if already evicted back into possession.
The Court further observed that section 18 gave a right of appeal against an order of allotment or release and that any person aggrieved by such an order could prefer an appeal to the District Judge and if the order of allotment or release was varied or rescinded by the District Judge in appeal the 398 District Magistrate had under section 18(2) the power to place the parties back in the position which they would have occupied but for such order.
The Court further pointed out that the Act did not provide for a hearing at the stage when the District Magistrate passed an order of allotment or release but any person aggrieved by such an order was entitled to ask the District Magistrate to review his order and if in the meanwhile any person in possession of the building had been evicted, the District Magistrate had the power, if he set aside or modified the order of allotment or release, to put the applicant back in possession The Court held (at page 945): "Thus, in the first place, it was unnecessary for respondent ; I to hear the appellants before notifying the vacancy be cause ' under the scheme of the U P. Rent Act, an order notifying the vacancy does no injury and causes no prejudice to the interests of any party.
A notification of the vacancy is a step in aid of an order of allotment or release and it is only when such an order of allotment or release is passed that the landlord or the tenant, as the case may be, can have a grievance.
Orders of allotment and release are, in the first instance, reviewable by the District Magistrate himself an`d an order passed by the District Magistrate under section 16 is appealable under section 18." The Court then summarized the conclusion it had reached as follows: "The Act thus contemplates successive opportunities " being afforded to persons whose interests are likely to be affected by any order passed by the District Magistrate.
Putting it briefly, an order notifying the vacancy can be objected to and the objection has to be decided after considering the evidence that the objector or any other person concerned may adduce.
Secondly, if an order of allotment , or release is passed under section 16, following upon the notification of a vacancy, the aggrieved person can file a review application.
Thirdly, as against an order passed under section 16, there is a right of appeal under section 18.
" We find it difficult to reconcile ourselves to the decision in Trilok Singh & Co. 's Case.
The Court 's attention was not drawn 399 in that case to Rule 8 of the said Rules Rule 8 to which we have adverted earlier is the one as substituted by Notification No. 1995/XXlX E 55 (A) 75 dated May 25, 1977.
The original rule, however, was to the same effect and under it also the conclusion reached by the Rent Control Inspector contained in his report of the inspection of the building was required to be posted on the notice board of the office of the District Magistrate for the information of the general public, and the order of allotment could not be passed before the expiration of three days from the date of such posting and, if in the meantime any objection was received, not before the disposal of such objection.
The District Magistrate was, therefore, not justified in immediately directing the vacancy to be notified and this act on his part was a clear violation of the statutory requirements of Rule 8 and had the result of depriving the appellant firm of an opportunity of hearing which Rule 8 conferred upon it.
On this ground alone the appellant firm should have succeeded.
The observation of this Court in Trilok Singh & Co 's case that it was unnecessary for the District Magistrate to hear the Appellants before notifying the vacancy does not, therefore, appear to be correct.
It equally does not appear to be correct to hold that an order notifying the vacancy did no injury and caused no prejudice to the interests of any party because an order notifying the vacancy could be objected to and if any objections were filed, they would have to be decided after considering the evidence that the objector or any other person concerned might adduce and that after an order of allotment or release was passed following upon the notification of vacancy, the aggrieved person could file a review application or an appeal under section 18.
In so holding the Court appears to have overlooked that the stage for objecting to a vacancy being notified was not after it was notified but, as provided by Rule 8, before it was notified and that under the said Rule 8 the notification of vacancy could only be after the objections were heard and disposed of.
This Court itself pointed out in that case that the Act did not provide for a hearing at the stage when the District Magistrate passed an order of allotment or release.
In such an event, it can hardly be said that a review or an appeal against an order of allotment or release was an adequate remedy.
As the very provisions for review and appeal show, if the order appealed against or sought to be reviewed is varied or rescinded, the appellant or the person seeking review, if evicted is the meanwhile, is to be restored back in possession.
How the fact of being evicted or even the danger of 400 it can cause no prejudice, particularly in these days of acute shortage of accommodation, is something we are not able to appreciate.
It is also difficult to understand how a party who has no right to appear at the original hearing of an application could be said to have a right of review or an appeal against an order passed on that application.
From the very nature of things, a right to defend an application in the first instance is a very different matter from a right to seek a review of the order on that application or a right of appeal against that order.
In its very nature and scope, an original hearing differs substantially from a review or an appeal.
A party applying for review or an appellant cannot as of right lead evidence.
Further, it is he who comes before the authority challenging an order passed to his prejudice and is not in the same position as the party against whom an order is sought in the first instance.
The correctness of Trilok Singh & Co. 's case is, therefore, open to doubt.
Apart from this, the position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by section 18 has been substituted by a right of revision on the grounds set out in the substituted section 18 and which are the same as those on which a revision lies to the High Court under section 115 of the Code of Civil Procedure, 1908.
While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity.
The scope of revision under section 18 is, therefore, much narrower than in the case of an appeal.
Under the proviso to section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub section (4) which includes a deemed vacancy under section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of section 16(1).
Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made.
The proviso, however, does not apply in the case of an 401 order of release made under clause (b) of section 16(1).
Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata.
In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no vacancy.
This would apply equally where an order of release is made.
Further, the revision which is provided for under section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision.
In fact, as would appear from the order dated September 30, 1981, of the Rent Control and Eviction Officer in Civil Appeal No. 8552 of 1983, the Allahabad High Court has held that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord.
The tenant has thus no adequate or effective remedy against an order notifying a vacancy.
Further, it should be borne in mind that under Rule 10 (6) a tenant who is deemed to have ceased to occupy a building under section 12(2) is not entitled for a period of two years from the date of such deemed vacancy to the allotment of the same or any other non residential building.
In our opinion, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding.
A petition under Article 226 or 227 of the Constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be premature.
In the view that we take, those Appeals will have to be allowed and the writ petitions of the Appellants will have to be heard by the High Court on merits.
As mentioned earlier, the Appellants have applied for amendment of their respective writ petitions.
Without expressing any opinion on the merits of the contentions sought to be raised in the proposed amendments, we feel that the amendments sought to be made are of such a nature that they require to be considered and dealt with by the High Court.
402 In the result, we allow both these Appeals and reverse the judgment and set aside the order passed by the High Court.
We further direct the High Court to rehear on merits the writ petitions filed by the Appellants.
We also allow the application for amendment of both these writ petitions.
The Appellants will amend their respective writ petitions in terms of the applications for amendment made by them within one month of the receipt by the High Court of the order of this Court.
The High Court will thereupon issue notice in each of these two writ petitions to the newly added State of Uttar Pradesh.
The State of Uttar Pradesh will be at liberty to file a counter affidavit within four weeks of the receipt of such notice.
The original respondents to the writ petitions will also be at liberty to file a supplementary counter affidavit within four weeks from the date of receipt by them of the notice that the writ petitions have been amended.
The High Court will thereafter endeavour to dispose of these writ petitions as expeditiously as possible.
Pending disposal of the writ petitions by the High Court, there will be a stay of further proceedings for allotment or release of the concerned premises and the Appellants will not be dispossessed from the premises they are occupying.
In the circumstances of the case, there will be no order as to the cost of these Appeals.
M.L.A. Appeals allowed.

summary/full:
Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family.
The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law.
In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be.
There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act.
The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified.
The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release.
The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified.
The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act.
The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord.
Hence these appeals.
Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants.
the Court.
^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act.
Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order.
Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord.
Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final.
Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge.
On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary.
[393H; 394A B; H; 395A; D P] 1(ii).
The Uttar Pradesh Urban Buildings.
(Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises.
Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected.
The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection.
Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908.
While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity.
The scope of revision under Section 18 is.
therefore.
much narrower than in the case of an appeal [400E F] 2(ii).
Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1).
Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made.
The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1).
Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata.
In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy.
This would apply equally where an order of release is made.
Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision.
Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding.
A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.


judgement:
: Special Leave Petition (Criminal) No. 372 of 1985.
From the Judgment and Order dated 18/19.9.1984 of the Bombay High Court in Criminal Appeal No. 423 of 1981 S.B. Bhasme, A.B Bhasme and M.A, Firoz for the Petitioner.
The Order of the Court was delivered by CHINNAPPA REDDY, J. This Special Leave Petition by the first accused in Session Case No. 134 of 1980 before the Sessions Judge, Sholapur whose conviction by the Sessions Judge under section 302 has been confirmed by the High Court, has to be dismissed as it rests entirely on appreciation of evidence.
While dismissing the Special Leave Petition we are however, constraint to make a few remarks about some of the observations of the High Court.
In paragraph 18 of the judgment of the High Court it has been said "the case of the prosecution stands on the pedestal of a tripod having the eye witness account of Shrimant and Nirmala as one leg; the discovery of axes, spear and a pair of trousers as the second leg and the animosity generated by high handed behaviour of Malkari regarding diversion of rain water as the third leg.
The confession made by accused No. 1 Nogeshi which was subsequently retracted forms the additional fourth lee of the tripod but it is well settled that the confessional statement can never be an evidence upon which a to found a conviction.
It can at best furnish an additional reenforcement when the other evidence is clinching enough to pronounce a verdict of guilt.
The confessional statement alone and by itself would lead us nowhere; if one of the legs of the tripod on which the prosecution bases its case gives way, the whole case like Humpty Dumpty would come tumbling down and the additional fourth leg that is, the confession, will not, like all the King 's horses and all the King 's men would put Humpty Dumpty together.
" 463 The metaphor used by the judges is entirely misapplied and misleading.
The evidence of the eye witness, if accepted, is sufficient to warrant conviction though in appropriate cases the Court may as a measure of caution seek some confirming circumstances from other sources.
But ordinarily, the evidence of a truthful eye witness is sufficient without anything more, to warrant a conviction and cannot for instance, be made to depend for its acceptance on the truthfulness of other items of evidence such as recovery of weapons etc.
at the instance of the accused by the police.
The Judges of the High Court were wrong in treating the evidence of eye witness as 'one of three legs of a tripod which must collapse if any of the other legs collapses.
Again the High Court is wrong in thinking that a confession cannot be the foundation of a conviction but can only constitute 'a fourth leg to a tripod '.
This statement has been repeated again in paragraph 30, where the High Court has observed "the confession alone and by itself cannot prove the guilt of an accused.
" We are not a little surprised that such a statement should have been made by the High Court.
We wish to make it clear and this is only to repeat what is so well established that a retracted confession by an accused may form the basis of a conviction of that accused if it receives some general corroboration from other independent sources.
It cannot however, be the basis for convicting co accused though it may be taken into consideration against co accused also.
It is entirely wrong to think that a confession can lead nowhere.
We are sorry to find such careless statements in the judgment of a High Court.
Special leave petition is dismissed.

summary/full:
The petitioner was convicted by the Sessions Judge under Section 302, IPC.
and the conviction was confirmed by the High Court.
Dismissing the Special Leave Petition, ^ HELD: 1.
The evidence of an eye witness, if accepted is sufficient to warrant conviction though in appropriate cases the Court may as a measure of caution seek some confirming circumstances from other sources.
But ordinarily, the evidence of a truthful eye witness is sufficient without anything more to warrant a conviction and cannot for instance be made to depend for its acceptance on the truthfulness of other items of evidence such as recovery of weapons etc.
at the instance of the accused by the police.
[463 B]] 2.A retracted confession by an accused may form the basis of a conviction of that accused if it receives some general corroboration from other independent sources.
It cannot however, be the basis for convicting a co accused though it may be taken into consideration against co accused also R It is entirely wrong to think that a confession can lead nowhere.
[463D E] 462 In the instant case, the High Court was wrong in treating the evidence of the eye witness as 'one of three legs of a tripod ' which must collapse if any of the other Legs collapses.
It was also wrong in holding that a confession cannot be the foundation of a conviction but can only constitute 'a fourth leg to a tripod ', and that "the confession alone and by itself cannot prove the guilt of an accused." [463C D]


judgement:
ion from the defendants who claim to be protected tenants could be granted only by the revenue court and not by the civil court.
The plaintiff respondent, therefore, on the basis of the decree for redemption can get only a symbolic possession and not actual physical possession for the land in dispute.
[414A B] & CIVIL APPELLATE JURISDICTION: Civil Appeals Nos.
320 323 of 1971.
From the Judgment dated the 8th August 1970 of the Mysore High Court in Regular Second Appeals Nos.
435, 437, 438, 515 of 1964 respectively.
R.B. Datar, for the Appellants.
K Rajendra Choudhary, for the Respondent.
The Judgment of the Court was delivered by MISRA, J.
The present connected appeals by special leave are directed against the judgment of the Karnataka High Court.
The dispute in these appeals relates to survey No. 56.
Of Mangavati P village measuring 18 acres and 30 gunthas.
Different portions of the said plot were mortgaged by the respondent to different persons now arrayed as appellants in the aforesaid appeals.
The respondent filed five suits for redemption and actual possession of the mortgaged land against the aforesaid mortgagees.
The a suits were contested by the mortgagees and their grievance in the main was that they were tenants of the suit land prior to the mortgage and were in possession thereof as such.
During the period of the mortgage their tenancy rights remained in abeyance and after redemption their tenancy rights would revive again in view of the provisions of s.25A of the Bombay Tenancy and Agricultural 406 Lands Act, 1948 and the respondent could not get actual possession; over the disputed land despite the redemption.
It was further pleaded that the respondent could not get actual possession over the disputed land from the civil court as the proper forum was a revenue court.
The learned Civil Judge decreed the aforesaid five suits by separate judgments holding that the defendants were not tenants of the suit land prior to the mortgage, and as such there was no question of revival of the tenancy rights after the redemption of the mortgagees, under s.25A of the Bombay Tenancy and Agricultural Lands Act.
The mortgagor was entitled to get possession of the land after redemption of the mortgage.
The judgments of the Civil Judge gave rise to five appeals which were disposed of by the District Judge.
In his opinion the defendants in four suits were not the tenants of the said land prior to the date of mortgage, but one of the defendants in one of the suits, viz., suit No. 94 of 1961, was in possession of the suit land as a tenant on the date of the mortgage and so his tenancy would revive after redemption of the mortgage.
He, however, relying on ss.2A and 3A of the Bombay Tenancy Act, 1939 found that the other defendants in the four suits also became deemed tenants under s.2A and consequently a protected tenant under s.3A of the aforesaid Act of 1939 as it stood amended in 1946 and could not be evicted from the suit land.
Accordingly.
all the appeals were allowed and the judgments of the trial court were modified in that the defendants were to remain in actual possession of the suit land and the plaintiff respondent would get only symbolic possession in pursuance of the decree for redemption.
Feeling aggrieved by the said decision the plaintiff filed appeals before the High Court, which in turn allowed the appeals and reversed the judgment of the District Judge holding that the mortgagees in possession did not become 'deemed tenants ' under the provisions of s.2A of the Act of 1939, as amended in 1946.
The defendants have now come to this Court and reiterate the same points as were raised by them before the High Court.
In order to appreciate the points raised in these appeals it will be appropriate at this stage to refer to the relevant provisions of the Bombay Tenancy Act, 1939.
Section 2A reads: 407 2A (I) A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not (a) a member of the owner 's family, or (b) a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owner 's family, unless the owner has within one year of the coming into force of the Bombay Tenancy (Amendment) Act, 1946 made an application to the Mamlatdar within whose jurisdiction the land is situated for a declaration that the person is not a tenant.
(2) Where an application under sub section (I) has been made and the Mamlatdar refuses to make such declaration and the Mamlatdar 's decision is not set aside by the Collector in appeal under sub section (3) of section 13 or by the Provincial Government under section 28, the person shall be deemed to be a tenant for the purposes of this Act. ' ' Section 3A reads; "3A. (1) Every tenant shall, on the expiry of one year from the date of the coming into force of the Bombay Tenancy (Amendment) Act, 1946, be deemed to be a protected tenant for the purposes of this Act and his rights as such protected tenant shall be recorded in the Record of Rights, unless his landlord has within the said period made an application to the Mamlatdar within whose jurisdiction the land is situated for a declaration that the tenant is not a protected tenant.
(2) Where an application under sub section (I) has been made and the Mamlatdar refuses to make such declaration and the Mamlatdar 's decision is not set aside by the Collector in appeal under sub section (3) of section ]3 408 or by the Provincial Government under section 28, the tenant shall be deemed to be a protected tenant for the purposes of this Act and his rights as such protected tenant shall be recorded in the Record of Rights.
" In 1948 the Bombay Tenancy Act, 1939 was repealed and another Act, that is, the Bombay Tenancy and Agricultural Lands Act, 1948 came into being.
Section 4 of this new Act is the same as section 2A of the Act of 1939 with the only addition of a clause.
It reads: "4.A person lawfully cultivating and land belonging to an other person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not (a) a member of the owner 's family, or (b) a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owner 's family.
Or (c) a mortgagee in possession.
Explanation I. A person shall not be deemed to be a tenant under this section if such person has been on an application made by the owner of the land as provided under section 2A of the Bombay Tenancy Act, 1939, declared by a competent authority not to be a tenant.
Explanation II.
Where any land is cultivated by a widow or a minor or a person who is subject to physical or mental disability or a serving member of the armed forces through a tenant then notwithstanding anything contained In Explanation I to clause (6) of section 2, such tenant shall be deemed to be a tenant within the meaning of this section.
" It is thus obvious that there were only two conditions in order to attract the provisions of section 2A(1) of the Bombay Tenancy Act, 1939.
But in the corresponding section 4 of the Bombay Tenancy and Agricultural Lands Act of 1948 one more condition was added in addition to the old two conditions as provided in section 2A(I) of the 409 Bombay Tenancy Act, 1939 and that additional condition excludes the mortgagee in possession from acquiring the status of a 'deemed tenant ' within the meaning of section 4.
If the cases in hand were to be governed by the Bombay Tenancy and Agricultural Lands Act, 1948, the mortgagees in possession would be out of the purview of section 4 of that Act as mortgagees in possession have been excluded from being 'deemed tenants '.
As the Act of 1948 has no retrospective effect the suits giving rise to the aforesaid appeals will be governed by the Act of 1939.
The contention raised on behalf of the appellants is that the mortgagees appellants became 'deemed tenants ' within the meaning of section 2A of the Act of 1939 and could not be evicted from the land in suit.
For the respondent, on the other hand, the contention was that the mortgagees have never been treated to be tenants and it will be against the uniform established view of law and this is why the mistake was realised by the legislature and a mortgagee in possession was excluded from being a 'deemed tenant ' in the Act of 1948.
It is admitted case of the parties that no application had been made by the mortgagor within one year of the coming into force of the Bombay Tenancy (Amendment) Act, 1946 for a declaration that the mortgagees in possession were not the tenants of the disputed land as contemplated by section 2A.
At one time there seemed to be a cleavage of judicial opinion on the construction of section 2A of the Act of 1939.
The Gujrat High Court gave a literal construction to the provisions of section 2A(1) and held that the mortgagees would become 'deemed tenants ' in terms of section 2A. The Bombay High Court and the High Court of Mysore took a contrary view.
It will be advantageous to refer to these cases in` some detail.
In Salman Raje vs Madhavsang Banesang & Ors.(l) the mortgage was made in 1943 and the mortgagee came in possession pursuant to the mortgage and the parties were, therefore, governed by the Bombay Tenancy Act of 1939, which was applied to the district of Ahmedabad on and from April 1946.A Division Bench consisting of Hon 'ble Mr. Justice J.M. Shelat and Hon 'ble Mr. Justice P.N. Bhagwati, as they then were, after discussing the various decisions held: "There is, and can be no doubt that the petitioner was cultivating the land belonging to another person, i.e., the ___ ____ ___ (1) 410 opponents and he was doing so lawfully as the usufructuary mortgage executed in his favour entitled him to its possession.
The petitioner also would not fall in either of the two excepted categories.
Prima facie, therefore, he was entitled to the benefit of ses.
2A and 3A of the Act.
It is also clear from the language used in sec.
2A that there were only two classes of persons whom the legislature excluded from the benefit of sec.
2A, viz. (1) the members of the owner 's family, and (2) his servants and hired labourers.
Obviously, a mortgagee in possession was not included in these two categories and was, therefore, not excluded from the benefit of sec.
2A though the legislature must have been aware of the fact that there would be mortgagees cultivating lands belonging to mortgagors.
Section 3A of the 1939 Act then provides that a tenant on expiry of one year from the date of the coming into force of the Amendment Act XXVI of 1946 was to be deemed to be a protected tenant and his rights as such protected tenant shall be recorded in the record of rights unless his landlord has within the said period made an application to the 'Mamlatdar for a declaration that the tenant is not a protected tenant.
" The Bombay High Court in Dinkar Bhagwant Salekar vs Babaji Mahamulkar(1) on the other hand held that a mortgagee was not excluded from the benefits of section 2A(1) due to an oversight by the legislature while enacting section 2A and that oversight was repaired when subsequently section 4 of the Act of 1948 was enacted.
Again a Full Bench of the Bombay High Court in Jasvantrai Tricumlal vs Bai Jiwi(2) had the occasion to consider the same question;.
It also took the view that there was a lacuna in section 2A of the 1939 Act in the sense that the mortgagee and his tenant were through mistake not excluded from the scope of section 2A(I ) and that lacuna was removed while enacting s.4 of the Act of 1948.
The (1) (2) 411 insertion of clause (c) in section 4 in the Act of 1948 was taken by the Full Bench to be a pointer to the fact that the mortgagees in possesstion were never intended to be treated as statutory tenants.
In Ishwara Bhau Sawant vs Pandurang Vasudeo Karmarkar(1) a Division Bench while construing section 2A of the Act of 1939 observed: "The words used in section 2A are undoubtedly wide.
One of the presumptions in law is that the legislature does not intend to make any substantial alteration in the law beyond what it explicitly declares, either in express terms or by clear implication, or, in other words, beyond the immediate scope and object of the statute.
In all general matters outside these limits the law remains undisturbed.
General words and phrases, therefore, however wide and comprehensive they may be in their literal sense.
must usually be construed as being limited to the actual objects of the Act.
If therefore, it is possible, we must so construe section 2A as to avoid general provisions of law in regard to mortgagees." In Shankar Kalyan Kulkarni & Ors.
vs Basappa Sidramappa Kolar & Ors.(2) a Division Bench of the Mysore High Court took a similar view, and observed: "We are of the opinion that a mortgagee in possession did not become a deemed tenant under section 2A of the 1939 Act.
Although a mortgagee in possession is a person lawfully cultivating the land belonging to his mortgagor, he could not merely for that reason become a deemed tenant under s 2A for the reason that we should not understand the provisions of that section as resulting in the transmutation of a mortgagee in possession to a deemed tenant.
A mortgagee in possession is a person who lends money to the mortgagor who mortgages his land to the mortgagee ` `and delivers possession of it to him to secure repayment of the sum of money borrowed by the mortgagor from the mortgagee.
That mortgage creates the relationship of debtor and creditor between the mortgagor and the mortgagee and it is that relationship which subsists between (1) 11 (2) 412 them during the period when the mortgagee is in possession of the property.
The provisions of section 76 of the Transfer of Property Act regulate the rights and liabilities of the mortgagee in possession.
It could not have been the intention of the legislature that these incidents of a mortgagee with possession should stand displaced in consequence of the provisions which section 2A of the 1939 Act incorporate.
If they did stand superseded in that way, the mortgagee would cease to be a creditor and the mortgagor would no longer be the debtor and the mortgagee could not demand or recover the mortgage debt due to him by the mortgagor.
" The Salman Raje 's case (supra) of the Gujrat High Court which had taken a contrary view itself came up for scrutiny before the Gujrat High Court in Patel Ambalal Manilal & Ors.
vs Desai Jagdishchandra Naginlal & Ors.(l) and a learned Single Judge of that High Court relying on a decision of this Court in Sidram Narsappa Kamble vs Sholapur Borough Municipality & Anr.(2) observed: "It appears, with great respect to the learned Judges who decided the case of Salman Raje (supra) that, in that case, full effect has not been given to the words "save as expressly provided in this Act" appearing in sec.
89(2)(b) of the 1948 Act and in view of the decision of the Supreme Court in the case of S.N. Kamble (supra), the decision of this Court in the case of Salman Raje cannot be considered to be a good law.
It should further be remembered that, mortgagee in possession was specifically excluded from the category of deemed tanant by sec. 4(c) of the 1948 Act in order to remove the anomalies created by sec.
2A of the 1939 Act so far as mortgagee in possession is concerned and hence, it is not likely that the legislature would have i intended to protect any right of a mortgagee in possession to be included in the category of a deemed tenant under sec.
2A of the 1939 Act, after sec.
4(c) of the 1948 Act containing the provision to the contrary was enacted." (1) (2) ; 413 This Court in S.N. Kamble 's case (supra) had an occasion to consider the impact of the saving section 89(2)(b) of the Act of 1948, and held: ". but the effect of the express provision contained in section 88(1)(a) clearly is that section 31 must be treated as non existent so far as lands held on lease from a local authority are concerned and in effect therefore section 88(1)(a) must be held to say that there will be no protection under the 1948 Act for protected tenants under the 1939 Act so far as lands held on lease from a local authority are concerned.
It was not necessary that the express provision should in so many words say that there will be no protected tenants after the 1948 Act came into force with respect to land held on lease from a local authority.
The intention from the express words of section 88(1) is clearly the same and therefore there is no difficulty in holding that there is an express provision in the 1948 Act which lays down that there will be no protected tenant of lands held on lease from a local authority.
In view of this express provision contained in section 88(1)(a), the appellant cannot claim the benefit of section 31; nor can it be said that his interest as protected tenant is saved by section 89(2)(b).
This in our opinion is the plain effect of the provisions contained in section 31, section 88 and section 89(2)(b) of the 1948 Act." In view of the aforesaid decision of this Court it cannot be argued for a moment that a mortgagee in possession becomes a deemed tenant under section 2A of the Act of 1939 on the strength of the saving provision in section 89(2)(b) of the Act of 1948.
The contention of the appellants that they became deemed tenants under section 2A of the Act of 1939 has no force and cannot be accepted.
The appellants can, however, still succeed on the ground that it was open to the plaintiff respondent to file an application for declaration before the Mamlatdar that the defendants were not tenants, within one year of the coming into force of the Amendment Act of 1946 as provided in sections 2A and 3A of the Act of 1919.
But he did not choose to do so and, therefore, he lost whatever right he had.
There is yet another ground why the plaintiff 414 respondent could not evict the defendants.
A relief for actual possession from the defendants who claimed to be protected tenants could be granted only by the revenue court and not by the civil court.
The plaintiff respondent, therefore, on the basis of the decree for redemption can get only a symbolic possession and not actual physical possession for the land in dispute.
For the foregoing discussion the appeals must succeed.
They are accordingly allowed and the judgment and decrees of the High Court are set aside and that of the first appellate court is restored but on a slightly different ground.
In the circumstances of the case the parties shall bear their own costs.
A.P.J. Appeals allowed.

summary/full:
The respondent mortgaged different portions of a plot of land to different persons.
Five suits for redemption and actual possession of the mortgaged land against the mortgagees were filed, who contested the suits on the grounds that they were tenants of the suit land prior to the mortgage and were in possession thereof as such, that during the period of mortgage their tenancy rights remained in abeyance and after redemption their tenancy rights would revive again in view of the provisions of section 25A of the Bombay Tenancy and Agricultural Lands Act, 1948, and consequently the respondent could not get actual possession.
It was further contended that the respondent could not get actual possession over the disputed land from the civil court as the proper forum was a revenue court, The Civil Judge decreed the suits for possession holding that the defendants were not tenants of the suit land prior to the mortgage, and as such there was no question of revival of tenancy rights under section 25A of Act 404 In appeals the District Judge held that in only one suit the defendant was in possession of the suit land as a tenant on the date of the mortgage and so his tenancy would revive after redemption of the mortgage, However, relying on sections 2A and 3A of the Bombay Tenancy Act 1939 it was held that the defendants in the other four suits also became deemed tenants under section 2A and consequently a protected tenant under section 3A of the said Act as it stood amended in 1946 and could not, therefore, be evicted from the suit land.
All the appeals were, therefore, allowed, the defendants permitted to remain in actual possession of the suit land and the plaintiff respondent getting only symbolic possession.
The plaintiff filed appeals and the High Court reversed the judgment of the District Judge holding that the mortgagees in possession did not become 'deemed tenants ' under the provisions of section 2A of the Act of 1939 as amended in 1946.
The respondent defendants appealed to this Court.
Allowing the appeals, ^ HELD: 1.A mortgagee in possession cannot become a deemed tenant under section 2A of the Bombay Tenancy Act of 1939 on the strength of the saving provision in section 89(2)(b) of the Bombay Tenancy and Agricultural Lands Act of 1948.
[413F] Sidram Narsappa Kamble vs Sholapur Borough Municipality Salman Raje vs Madhavsang Banesang & Ors., 4 Guj.
L.R. 817 and Ishwara Bhau Sawant vs Pandurang Vasudeo Karmarkar, , overruled.
Dinkar Bhagwant Salekar vs Babaji Mahamulkar, 59 Bom.
L. R. 101 and Jaswantrai Tricumlal vs Bai Jiwi, 59 Bom.
L. R. 168 Shankar Kalyan Kulkarni Ors.
vs Basappa Sidramappa Kolar & Ors.
[1969]2 Mys.
L.J.77 and Patel Ambalal Manilal & Ors.
vs Desai Jagdishchandra Naginlal & Ors.
17 Guj.
L.R. 578, approved.
Two conditions were necessary in order to attract the provisions of section 2A(I) of the Bombay Tenancy Act, 1939.
But in the corresponding section 4 of the Bombay Tenancy and Agricultural Lands Act of 1948 one more condition was added in addition to the old two conditions as provided in section 2A(I) of the Bombay Tenancy Act, 1939 and that additional condition excludes the mortgagee in possession from acquiring the status of a 'deemed tenant ' within the meaning of section 4.
If the cases in hand were to be governed by the Bombay Tenancy and Agricultural Lands Act 1948, the mortgagees in possession would be out of the purview of section 4 of that Act 405 as mortgagees in possession have been excluded from being 'deemed tenants '.
As the Act of 1948 has no retrospective effect the suits giving rise to the aforesaid appeals will be governed by the Act of 1939.
[408H; 409A B] 3.
In the instant case, the plaintiff respondent was entitled to file an application for declaration before the Mamlatdar that the defendants were not tenants, within one year of the coming into force of the Amendment Act of 1946 as provided in sections 2A and 3A of the 1939.
But he did not choose to do so and, therefore, he lost whatever right he had.
[413G H]