judgement:
Civil Appeal No. 2607 of 1987.
From the Judgment and order dated 6.1.1986 of the Patna High Court in Appeal Decree No. 75 of 1978.
416 Avadh Behari and Y.K. Jain for the Appellant.
Shanker Ghosh and M. P. Jha for the Respondent.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The appellant is a firm carrying on business at Jharia.
It took on lease a room bearing No. 1 in a building belonging to the respondent on a monthly rent of Rs.70 on 7.11.1960 and paid in advance two months ' rent, i.e., Rs.140.
The appellant paid rents regularly but did not pay the rent for the months of September and October, 1972.
Taking advantage of the non payment of the rent in respect of the said two months the respondent filed a petition for eviction against the appellant contending that the appellant had become liable to be evicted from the premises in question under clause (d) of sub section (1) of section 11 of the Bihar Building (Lease, Rent and Eviction) Control Act, 1947 (hereinafter referred to as 'the Act ') which provided that on failure to pay two months ' rent a tenant was liable to be evicted from the premises taken on lease.
The appellant pleaded inter alia in his written statement that at the time of the inception of the tenancy it had paid the respondent a sum of Rs.140 as advance rent with an understanding that the amount of advance could be set off against the rent whenever necessary or required and that since under section 3 of the Act it was not lawful for a landlord to claim or receive, in consideration of the grant, renewal or continuance of a tenancy of any building, the payment of any premium, salami, fine or any other like sum in addition to the rent or payment of any sum exceeding one month 's rent of such building as rent, in advance, the appellant could not be considered as a defaulter in payment of rent for purposes of clause (d) of section 11(1) of the Act as atleast one month 's rent which had been paid in excess of what was permitted under section 3 of the Act was liable to be adjusted towards the arrears.
The appellant, therefore, contended that in any view of the matter it could not be treated as a defaulter liable to be ejected from the premises.
Agreeing with the pleas of the appellant the trial court dismissed the suit and the appeal filed by the respondent before the {[; Additional Subordinate Judge, Dhanbad against the judgment of the trial court was also dismissed.
The respondent filed a second appeal before the High Court against the judgment of the Additional Subordinate Judge.
The High Court found that the appellant had failed to pay the rent for the months of September and October, 1972 although it accepted the plea of the appellant that he had paid the sum of Rs.140 as rent in advance on the ground that the appellant had not requested 417 the respondent to adjust the rent which he had paid in advance A towards the rent due for the months of September and October, 1972.
The relevant part of the judgment of the High Court reads thus: "6.
In paragraph 9 of the written statement, the respondent stated that Rs.140 was advanced to the appellant, with an understanding that it could be set off against the rent whenever necessary or required.
It will, therefore, appear that the respondent was entitled to claim adjustment if it was necessary or required.
The respondent neither orally nor in writing informed that it was exercising its option under the agreement for adjusting the amount paid in advance towards the rent of September and October, 197,.
Accordingly to the respondent 's own showing, it remitted the rent for these two months also alongwith rent of November and December, 1972 in January, 1973.
If it had exercised its option under the agreement, there was no necessity for it to remit the rent for the months of September and October because that amount was not due as it had been paid by adjustment.
Mr. Sinha submitted that the pleading should not be construed in a pedantic manner.
There is no question of construing the pleadings in this case in a pedantic manner because according to its own case, the respondent was entitled to adjust the amount if necessary or required and for that it was necessary for it to intimate the appellant that it was exercising his option.
Further, in the written statement no where it is asserted that it may be allowed to adjust the amount against the rent of September and October, 1972.
Since the option was not exercised at any stage, the respondent cannot get the benefit of the amount paid by it in advance to the appellant.
Mr. Merathia tried to make out that section 3 of the Act prohibits the landlord to accept the rent for more than one month and as the advance was for two months, no benefit can be given to the respondent as the contract was against the statute.
It is true that if the parties are in pari delicto court will not come in rescue of either.
However.
that does not help the appellant.
" Accordingly the High Court set aside the concurrent judgments of the two courts below and directed the eviction.
This appeal by special leave is filed by the appellant against the judgment of the High Court.
H 418 It is unfortunate that the High Court has approached the entire case in a technical fashion.
It is not disputed that the respondent was not entitled to receive more than one month 's rent by way of advance.
Yet, the respondent had received in advance the rent for two months.
The receipt under which the said advance was received does not state that the amount received was liable to be adjusted towards the arrears of rent only on the appellant informing the respondent orally or in writing that such adjustment is to be made.
In the written statement, however, the appellant pleaded that the amount paid by way of advance could be set off by way of rent whenever necessary or required.
This is not a case where there was any agreement to the effect that such adjustment could be made only on the tenant asking the landlord to make such adjustment.
Nor is this a case where the tenant was liable to the landlord on any other account.
The only transaction between them was the lease in question and the amount in question had been paid as rent in advance.
There was also no agreement that the amount was liable to be adjusted at the termination of the lease.
It was, therefore, open to the respondent to appropriate the said sum towards the arrears even without any option being exercised as regards such adjustment by the appellant.
The High Court erred in observing that the appellant had not asserted in its written.
statement that it may be allowed to adjust the advance amount towards the rent due for the months of September and October, 1972.
In substance the plea set out in para 9 of the written statement, amounts to such an assertion.
In any case the appellant could not be treated as a defaulter who had failed to pay rent for two months.
The High Court was also wrong in coming to the conclusion that the appellant could not rely on the provisions of section 3 of the Act on the ground that if the parties were in pari delicto the court would not come to the rescue of either.
In Mohd. Salimuddin vs Misri Lal and another, [19861 1 S.C.R. 622 this Court has held that where in a suit by landlord for eviction of tenant it was found that the tenant, in order to secure the tenancy advanced certain amount to the landlord (although in violation of prohibition to do so as embodied in section 3 of the Act) under an agreement containing a stipulation that the loan amount was to be adjusted against the rent which accrued, and the amount so advanced was sufficient to cover the landlord 's claim of arrears of rent for the relevant period, it could not be said that the tenant was not entitled to claim adjustment of the loan amount so advanced against the rent which accrued subsequently, simply because the loan advanced was in violation of the prohibition contained in the Act.
Accordingly, this Court held that as the tenant was not in arrears of rent after the 419 adjustment of loan amount towards the rent, he was not liable to be evicted from the premises in question.
This Court further observed that the doctrine of in pari delicto was not attracted to such a situation.
The principle enunciated in the above case is equally applicable to the case before us.
The learned counsel for the respondent, however, relied upon a Full Bench decision of the High Court of Patna in Galab Chand Prasad vs Budhwanti and another, A.I.R. 1985 Pat.
327 in which it had been held that any excess rent paid by a tenant to his landlord in pursuance of a mutually agreed enhancement of rent which was illegal did not get automatically adjusted against all the subsequent defaults in the payment of the monthly rent under the Act.
The decree for eviction passed by the High Court of Patna in the above case has no doubt been affirmed by this Court in Budhwanti & Anr.
vs Gulab Chand Prasad., ; But, this Court affirmed the judgment of the High Court not on the ground that the tenant in that case was a defaulter in payment of rent but on the ground that the landlord required the premises for his bona fide use and occupation.
This Court in its judgment observed that "in the view we propose to take . . . we do not think it necessary to go into the question whether the appellants had committed default in payment of rent and secondly even if they had committed default, they are entitled to adjust the excess rent paid by them over a span of 30 years without reference to the rule of in pari delicto.
The reason for our refraining to go into these questions is because we find the decree for eviction passed against the appellants can be sustained on the second ground, viz., bona fide requirement of the shop for the business requirements of the members of the joint family.
" It is not now necessary for us to consider the correctness of the observation made by the Full Bench of Patna High Court on the question of default and the right of the tenant to claim adjustment because what was claimed by way of adjustment in the said case was a certain excess amount paid over a long period of 30 years as enhanced rent under a mutual agreement though such payment was contrary to law.
But in the case before us the amount of Rs.140 had not been paid as enhanced rent under any such agreement.
It was, in fact, an amount which had been paid in advance which was liable to be adjusted whenever it was necessary or required.
On the facts and in the circumstances of the case we are satisfied that the appellant was not in arrears of two months ' rent.
We are of opinion that the High Court was in error in holding that the appellant was a defaulter who was liable to be evicted under clause (d) of sub 420 section (1) of section 11 of the Act.
The judgment of the High Court is,therefore, liable to be set aside and we accordingly set it aside.
The judgment of the trial court which has been affirmed by the first appellate court is restored.
The appeal is accordingly allowed with costs.
H.L.C. Appeal allowed.

summary/full:
When the appellant did not pay rent for September and October, 1972, the respondent filed a petition for its eviction from the premises in question under section ll(l)(d) of the Bihar Building (Lease, Rent and Eviction) Act, 1947 which provided that on failure to pay two months ' rent a tenant was liable to be evicted from the premises taken on lease.
The appellant 's defence was that it had paid two months ' rent in advance at the inception of the tenancy with an understanding that it could be set off against the rent whenever necessary or required and, further, that since under section 3 of the Act it was not lawful for the landlord to have received any sum exceeding one month 's rent in advance, it could not be considered as a defaulter in payment of rent for purposes of section ll(l)(d) as, at least one month 's rent which had been paid in excess of what was permitted under section 3 was liable to be adjusted towards the arrears.
The Trial Court dismissed the suit, and his appeal against the same having been rejected by the Additional Subordinate Judge, the respondent approached the High Court by a Second Appeal.
Although it accepted the plea that the appellant had paid two months ' rent in advance at the inception of the tenancy, the High Court arrived at the finding that the appellant had failed to pay the rent for the months of September and October, 1972, on the ground that the appellant had not requested the respondent to adjust it towards the rent due for the aforesaid two months.
Observing that the rule of in pari delicto did not help the appellant in this case, the High Court set aside the concurrent judgments of the two courts below and directed eviction.
Allowing the appeal by special leave, 415 ^ HELD: The appellant could not be treated as a defaulter who had A failed to pay rent for two months.
[418E] (i) The High Court approached the entire case in a technical fashion.
The respondent was not entitled to receive more than one month 's rent by way of advance.
Yet, the respondent had received in advance the rent for two months.
The receipt under which the said advance was received does not state that the amount received was liable to be adjusted towards the arrears of rent only on the appellant informing the respondent orally or in writing that such adjustment is to be made.
In the written statement, however, the appellant pleaded that the amount paid by way of advance could be set off by way of rent whenever necessary or required.
This is not a case where there was any agreement to the effect that such adjustment could be made only on the tenant asking the landlord to make such adjustment.
Nor is this a case where the tenant was liable to the landlord on any other account.
The only transaction between them was the lease in question and the amount in question had been paid as rent in advance.
There was also no agreement that the amount was liable to be adjusted at the termination of the lease.
It was, therefore, open to the respondent to appropriate the said sum towards the arrears even without any option being exercised as regards such adjustment by the appellant.
[418A D] (ii) The High Court was also wrong in coming to the conclusion that the appellant could not rely on the provisions of section 3 of the Act on the ground that if the parties were in pari delicto the court would not come to the rescue of either.
[418E] Mohd. Salimuddin vs Misri Lal & Anr., [1986] 1 S.C.R. 622, relied on.
Gulab Chand Prasad vs Budwanti & Anr., A.I.R. 1985 Pat.
327, referred to.
Budhwanti & Anr.
vs Gulab Chand Prasad.
, ; , distinguished.


judgement:
: Special Leave Petition (Crl. ) No. 419 of 1987.
From the Judgment and order dated 11.12.1986 of the Punjab and Haryana High Court in Criminal Miscellaneous No. 7421 M of 1 986 .
R.K. Garg, Ms. Suman Kapoor and R.P. Singh for the Petitioner.
P.N. Puri, R.S. Sodhi and R.S. Suri for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is a petition for leave to appeal under Article 136 of the Constitution against the judgment and order of the High Court of Punjab and Haryana dated 11th of December, 1986.
By the order the High Court has dismissed the applica 452 tion under section 482 of the Code of Criminal Procedure praying that further that proceedings be stayed in Sessions Case No. 1 of 25th of March, 1985 under sections 148/302/325/323/149/120 B of the I.P.C.
The High Court dismissed this petition because it found no merit in the same.
The petitioner, herein alongwith 14 more persons were charged by an order dated 30th of May, 1986 under sections 148/302/149/325/149 and under sections 323/149 of the I.P.C. for allegedly causing death of one Ajit Singh and for causing hurt to Smt.
Gurmej Kaur, the complainant.
The case was committed to the Court of Sessions by the Judicial Magistrate 1st Class, Kapurthala vide order dated 20.2.1985.
As per the case set up by the complainant Smt.
Gujmej Kaur, her son Ajit Singh since deceased was involved in a murder case pertaining to the murder of head constable Bagga Singh of Police Station Dhilwan.
That case was registered in police station Bhogpur, District Jalandhar and Ajit Singh was tried alongwith other persons and was sentenced by the Additional Sessions Judge but he was acquitted by the High Court.
The complainant further states that Ajit Singh was also involved by the police in a case of dacoity of police station Kotwali Kapurthala and police station Dhilwan during investigation of the murder case in question.
Ajit Singh was also convicted in those cases but acquitted by the High Court.
It is the case of the complainant that Ajit Singh was allegedly involved in some other murder and dacoity case by the police which was tried in Himachal Pradesh and Ajit Singh was acquitted by the Himachal Pradesh High Court.
Mohinder Singh and Des Raj also co accused in this case allegedly investigated cases of Kapurthala and Ajit Singh was tortured by Des Raj and the leg of Ajit Singh was broken.
Ajit Singh then filed complaint against Des Raj (also accused in this case) and he was summoned by the Judicial Magistrate 1st p Class, Kapurthala and thus the relation between Ajit Singh and Kapurthala Police Station had become very strained.
Ajit Singh had then settled in U.P., according to the allegations in the complaint, out of fear of the police.
It is stated that on or about 7th of April, 1983 at about 3 p.m. all the accused including present petitioner went to village Bhandal Bet.
They went to the house of the complaint where she was present alongwith her sons Ajit Singh and Manjit Singh and other members of the family.
Manjit Singh and Ajit Singh, it was alleged, were surrounded by the police officials and Manjit Singh and Ajit Singh protested against this.
Then Bakshish Singh accused, petitioner, directed his companions to arrest Ajit Singh and Manjit Singh and tie them with ropes and put them in the truck for the purpose of throwing them in the river Beas.
It was further alleged that Manjit 453 Singh and Ajit Singh ran to save themselves but they were attacked by the police officials.
The complainant also received injuries in the A course of this occurrence when she was given dang blows.
Ajit Singh and Manjit Singh were given blows by the police officals on the asking of the appellant herein Bakhshish Singh Brar, who is the Deputy Superintendent of Police.
A hue and cry was raised.
Other persons came, Ajit Singh and Manjit Singh became unconscious and then they were taken away in the truck for the purpose of throwing them in the river, according to the complaint.
The case of the complainant further was that Ajit Singh and Manjit Singh were then got admitted by the police in Civil Hospital, Kapurthala as indoor patients and Ajit Singh died as a result of injuries on 8th of March, 1983.
It was further alleged that the accused who are the police officials fabricated false evidence in order to make out a defence and registered two false cases one under section 61(1)(a) of the Punjab Excise Act, F.I.R. No. 70 dated 7th of April 1983 and the other under section 307, I.P.C. F.I.R. No. l 1 dated 7th April, 1983.
On the other hand, the case of the respondents was that the police party headed by the petitioner including 13 of his subordinates went to the Haveli of Jit Singh alias Jita, situated in village Bhandel Bet in connection with raid on secret information to the effect that he is indulging in illicit liquor and unlicenced arms.
There were two First Information Reports one under section 61(1)(14) of the Punjab Excise Act and the other under section 25(54)(59) of the Arms act were recorded in Police Station Dhilwan.
That on the same date the police party raided the Haveli of Jit Singh alias Jita, where Manjit Singh, Jasbir Singh, Balwant Singh, Chhinda and Majwi, residence of village Bullowal and Gurdev Singh resident of village Ucha were present there.
It is further alleged that seeing the police party, Jasbir Singh fired at Ajit Singh, who saved himself by hiding himself behind a wall.
The other persons armed with dangs and dhope attacked the police party.
There are rival versions involved in this case.
The question was whether without the sanction under section 197 of the Code of Criminal Procedure the proceedings could go on.
It is quite apparent that as a result of the alleged search and raid, which was conducted by the petitioner in discharge of his official duties certain injuries, which are described as grievous, injuries had been inflicted on the complainant and one of the alleged offenders had died.
In this case, admittedly, the petitioner is a Government servant.
Admittedly, there was no sanction under section 197 of the Cr.
P.C. had been taken.
The trial in this case H 454 is one of the offences mentioned under section 196 of the Cr.
The A contention of the petitioner was that under section 196 of the Cr.
P.C. the cognizance of the offence could not be taken nor the trial proceeded without the sanction of the appropriate authorities.
The learned Additional Sessions Judge, Kapurthala after consideration of the facts and circumstances of the case in view of the observations of this Court in Pukhraj vs State of Rajasthan and another, that unless cognizance is taken and the facts and in the circumstances and the nature of the allegations involved in this case are gone into the question whether the raiding party exceeded its limits or power while acting in the official duties cannot be determined.
The learned Judge observed after gathering the materials and some evidence, it would be possible to determine whether the petitioner while acting in the discharge of his duties as a police officer had exceeded the limit of his official capacity in inflicting grievous injuries on the accused and causing death to the other accused.
This Court in the aforesaid decision had occasion to consider this aspect.
The case is instructive and illustrative how a balance has to be struck between the need for speedier trial of criminal offenders and at the same time protecting public servants or police officials in the discharge of their duties without obstructions.
There the appellant had filed a complaint against his superior officer, in the Postal Department under sections 323 and 502 of I.P.C. alleging that when the appellant went with a certain complaint to the second respondent, the said respondent kicked him in his abdomen and absued him by saying "Sale, gunde, badmash . " The said respondent filed an application under section 197 of the Cr.
P.C. praying that the Court should not take cognizance of the offence without the sanction of the Government, as required by section 197 of the Cr.
It was further contended that the alleged acts, if at all done by the accused were done while discharging his duties as a public servant.
The trial Magistrate dismissed the application.
The High Court allowed the revision application of the said respondent.
This Court on appeal held that at that stage, the Court was concerned only with one point, viz., whether on facts alleged in the complaint, it could be said that the acts were done in purported exercise of his duties.
Applying the test laid down in the decisions of the Federal Court and this Court to acts complained of, viz., kicking the complainant and abusing, could not be said to have been done in the course of the performance of the duty by the said respondent.
The facts subsequently coming to light during the course of the judicial enquiry or during the course of the prosecution evidence at the trial might establish the necessity for sanction, it was observed.
This Court noted that it might be possible for the said respondent to 455 place materials on record during the course of the trial for showing what his duties were and also that the acts complained of were so interrelated with his official duty, so as to attract the protection afforded by section 197 of the Cr.
This Court reiterated that the question whether sanction was necessary or not might have to depend upon from stage to stage having regard to the facts and circumstances of the case.
This Court allowed the appeal and allowed the trial to proceed without the sanction.
In the instant case, it is alleged that grievous injuries were inflicted upon the complainant and as a result of injuries one of the alleged accused had died.
The question is while investigating and performing his duties as a police officer was it necessary for the petitioner to conduct himself in such a manner which would result in such consequences.
It is necessary to protect the public servant in the discharge of their duties.
They must be made immune from being harassed in criminal proceedings and prosecution, that is the rationale behind section 196 and section 197 of the Cr.
But it is equally important to emphasise that rights of the citizens should be protected and no excesses should be permitted.
"Encounter death" has become too common.
In the facts and circumstance of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties or purported discharge of his duties, and whether the public servant has exceeded his limit.
It is true that section 196 states that no cognizance can be taken and even after cognizance having been taken if facts come to light that the acts complained of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained.
But at the same time it has to be emphasised that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence.
In that view of the matter we are of the opinion that the order passed by the learned Additional Sessions Judge, Kapurthala, in the facts of this case, was proper and the High Court was right in not interfering with the same.
We, therefore, dismiss this petition.
G We, however, direct that the trial should proceed as expeditiously as possible.
We further record that if necessary the question of sanction under section 197 of the Cr.
P.C. may be agitated after some evidence have been noted by the learned Additional Sessions Judge.
P.S.S. Petition dismissed.

dataset_name: IN-Abs

summary/full:
The petitioner, a police officer, was charged by the Judicial Magistrate under sections 148/302/149/325/149 and under sections 323/149 of the Indian Penal Code for allegedly causing grievous injuries to the complainant and death of one of the alleged offenders during a raid and search for illicit liquor and unlicenced arms, and committed to the Court of Sessions for trial.
His contention was that under section 196 of the Code of Criminal Procedure the cognizance of the offence could not be taken nor the trial proceeded with without the sanction of the appropriate authorities under section 197 of that Code.
The Sessions Court took the view that unless cognizance was taken and the facts and the circumstances and the nature of the allegations involved in the case were gone into, it would not be possible to determine whether or not the raiding party exceeded its limits or power while acting in the discharge official duties.
The High Court dismissed the application under section 482 of the Code of Criminal Procedure for staying further proceedings in the Sessions Court.
In the special leave petition to this Court on the question: Whether without the sanction under section 197 of the Code of Criminal Procedure the proceedings could go on.
Dismissing the special leave petition, ^ HELD: l.
The order passed by the Sessions Court was proper and the High Court was right in not interfering with the same.
[455G] 2.
Criminal trials should not be stayed in all cases at the prelimi 451 nary stage because that will cause great damage to the evidence.
It is necessary to protect the public servants in the discharge of their duties.
They must be made immune from being harassed in criminal proceedings and prosecution, that is the rationale behind sections 196 and 197 of the Criminal Procedure Code.
But it is equally important that rights of the citizens should be protected and no excesses should be committed.
In the facts and circumstances of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have, therefore, to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties or purported discharge of his duties, and whether the public servant has exceeded his limit.
[455F,C E] Pukhraj vs State of Rajasthan and Anr., [1974] 1 S.C.R. 559, referred to In the instant case, it is alleged that grievous injuries were inflicted upon the complainant and as a result of injuries one of the alleged accused had died.
The question is while investigating and performing his duties as a police officer was it necessary for the petitioner to conduct himself in such a manner which would result in such consequences.
Therefore, the trial should proceed.
If necessary the question of sanction under section 197 of the Criminal Procedure Code may be agitated after some evidence have been noted by the Sessions Court.
[455C, H]


judgement:
Appeal No. 99 of 1954.
Appeal from the judgment and order dated the 20th August, 1952, of the Bombay High Court in Appeal No. 43 of 1952 arising out of Original Suit No. 1262 of 1949.
N. C. Chatterjee, J. B. Dadachanji and Rameshwar Nath, for the appellant.
Porus A. Mehta and R. H. Dhebar, for the respondent.
November 27.
The following Judgment of the Court was delivered by VENKATARAMA AIYAR J.
On February 28,1934, the Appellant who is the religious head of the Dawoodi Bohra Community, passed an order excommunicating one Tyebbhai Moosaji Koicha.
On July 17, 1920, the appellant had excommunicated two persons, Tahirbhai and Hasan Ali, and the validity of the order was questioned in a suit instituted in the Court of the Subordinate Judge, Barhampur.
The litigation went up to the Privy Council, which held that the appellant as the religious head had the power to excommunicate a member of the community, but that that power could only be exercised after observing the requisite 1009 formalities, and as in that case that had not been done, the order of excommunication was invalid.
Vide Hasan Ali vs Mansoorali (1).
Apprehending that the order dated February 28, 1934, was open to challenge under the decision in Hasan Ali vs Mansoorali (supra) on the ground that it had not complied with the requisite formalities, the appellant started fresh proceedings, and on April 28, 1948, passed another order of excommunication.
Thereupon, Tyebbhai Moosaji filed the present suit for a declaration that both the orders of excommunication dated February 28, 1934, and April 28, 1948, were invalid and for other consequential reliefs.
While this action was pending, the Legislature of the Province of Bombay passed the Bombay Prevention of Excommunication Act (Bombay XLII of 1949) prohibiting excommunication, and that came into force on November 1, 1949.
The plaintiff contended that the effect of this legislation was to render the orders of excommunication illegal.
The answer of the appellant to this contention was, firstly, that the Act had no retrospective operation, and that, in consequence, the orders passed on February 28, 1934, and April 28, 1948, were valid, and remained unaffected by it; and secondly, that the Act was itself unconstitutional, because the subject matter of the impugned legislation was not covered by any of the entries in List 2 or 3 of Seventh Schedule to the Government of India Act, 1935, and the Legislature of the Province of Bombay had no competence to enact the law.
After the coming into force of the Constitution, the contention was also raised that the right of the defendant to excommunicate members of the com munity was protected by articles 25 and 26 of the Constitution, and that the impugned Act was void as infringing the same.
The issues in the action were then settled, and issue No. 19, which was raised with reference to the above contentions, was as follows: " Whether the orders of excommunication made in 1934 and/or 1948 are invalid by reason of the (1) A.I.R. 1948 P.C. 66.
1010 provisions of the Bombay Prevention of Excommunication Act of 1949?" This was tried as a preliminary issue, and as it raised the question of the vires of a statute, the State of Bombay was impleaded as the second defendant in the suit.
Shah J.who tried this issue, held that the impugned Act was retrospective in its operation, that it was within the competence of the Provincial Legislature, and further that it did not offend articles 25 and 26 of the Constitution.
Against this finding, the present appellant preferred an appeal to a Bench of the Bombay High Court, and that was heard by Chagla C. J. and Bhagwati J. who held that under the Act, excommunication meant the condition of being expelled, that it was a continuous state during which the person excommunicated was deprived of his rights and privileges, and that, therefore, the Act would operate to protect those rights from the date it came into operation.
They further held that the Act was within the competence of the Legislature, and they also repelled the contention that it infringed the rights guaranteed under articles 25 and 26 of the Constitution.
In the result, they concurred in the decision of Shah J. and dismissed the appeal but granted a certificate to appeal to this Court under articles 132 and 133 of the Constitution.
Hence this appeal.
Pending the appeal, the plaintiff died on March 11, 1953, and his daughter applied on May 22, 1953, to be substituted in his place.
But eventually she did not press the application, and that was dismissed on October 5, 1953.
In this Court by an order dated November 21, 1955, the cause title was amended by deleting the name of the plaintiff.
Thus, the only parties who are now before the Court are the defendant and the State of Bombay.
The question is whether in the events which have happened, the appeal can proceed.
We are of opinion that it cannot.
It should be remembered in this connection that no decree had been passed in the suit.
Only a finding has been given on a preliminary point, and it is that finding that has been the subject of 1011 appeal to the High Court of Bombay and thereafter to this Court.
There are other issues still to be tried, and the action is thus undetermined.
Now, the claim with which the plaintiff came to Court was that he was wrongly excommunicated, and that was an action personal to him.
On the principle, actio personalis moritur cum persona when he died the suit should abate.
As a matter of fact, his legal representative applied to be brought on record, but the application was not pressed.
The result is that the suit has abated.
This would ordinarily entail the dismissal of this appeal.
Mr. N. C. Chatterjee for the appellant argues that as the State of Bombay had been impleaded as a party, and that as the decision on the question of the vires of the Act had been given in its presence, the appellant is entitled to continue the appeal against the State without reference to the plaintiff and seek the decision of this Court on the validity of the Act ; and relies on the decision of the Federal Court in The United Provinces vs Mst.
Atiqa Begum and others (1).
There, a suit was filed by a landlord for recovery of rent.
While it was pending in appeal, an Act was passed by the Legislature of the United Provinces validating certain Government notifications requiring the landlords to give to the tenants remission of rent.
The landlord contended that the Act was ultra vires, and a Full Bench of the Allahabad High Court, for whose opinion the question was referred, agreed with this contention.
Thereafter, the Government of the United Provinces got itself impleaded as a party to the appeal of the landlord, and a decision having been given therein in accordance with the opinion of the Full Bench, it preferred an appeal to the Federal Court on a certificate granted under section 205 of the Government of India Act, 1935, and contended that the impugned Act was valid.
The judgment debtor himself did not file any appeal.
The question was whether the Government was entitled to file the appeal when the party had not chosen to contest the decree.
It was held by the Federal Court that the scope of (1) 1012 section 205 of the Government of India Act was wider than that of section 96 of the Civil Procedure Code, and that the Government was entitled to file the appeal for getting a decision on the validity of the Act, notwithstanding that it had no interest in the claim in the suit.
This ruling has, in our opinion, no application to the facts of the present case.
Here, the action itself has abated, and there can be no question of an appeal in relation thereto, as an appeal is only a continuation of the suit, and there can be no question of continuing what does not exist.
But apart from this, there is another formidable obstacle in the way of the appellant.
Under article 132, an appeal lies to this Court only against judgments, decrees or final orders.
That was also the position under section 205 of the Government of India Act.
Now, the order appealed against is only a decision on one of the issues, and it does not dispose of the suit.
In The United Provinces vs Mst.
Atiqa Begum and others (supra), there was a decree, and the requirements of section 205 were satisfied.
Here, there is only a finding on a preliminary issue, and there is no decree or final order.
The Explanation to article 132 provides that: "For the purposes of this Article, the expression 'final order ' includes an order deciding an issue which, if decided in favour of the appellant, would be sufficient for the final disposal of the case.
" Applying this test, even if we accept the contention of the appellant that the impugned Act is bad, that would not finally dispose of the suit, as there are other issues, which have to be tried.
We are clearly of opinion that the appeal is not competent under article 132, and the fact that a certificate has been given does not alter the position.
It is said that the certificate is also under article 133, but under that article also, an appeal lies Only against judgments, decrees or final orders, and no certificate could be granted in respect of an interlocutory finding.
The result is that this appeal must be dismissed, as not maintainable.
We should add by way of abundant caution that as we express no opinion on the 1013 correctness of the decision under appeal, this order will not preclude the appellant from claiming such rights as he may have, in appropriate proceedings which he may take.
In the circumstances, there will be no order as to costs.
Appeal dismissed.

summary/full:
The appellant as the religious head of his community ex communicated T who thereupon filed a suit for a declaration that the order of excommunication was invalid.
When the suit was pending the Bombay Prevention of Excommunication Act, 1949, was passed and one of issues raised in the suit was whether the order of excommunication was invalid by reason of the provisions of the Act.
This issue was tried as a preliminary issue and (1) (1948) L.R. 75 I. A. 30.
128 1008 as it raised the question of the vires of the Act, the State of Bombay was impleaded as the second defendant in the suit.
The Bombay High Court decided the issue against the appellant, but granted a certificate to appeal to the Supreme Court under articles 132 and 133 Of the Constitution of India.
Pending the appeal the plaintiff died and the action which was personal to him consequently abated.
It was contended for the appellant that as the State of Bombay had been impleaded as a party and that as the decision on the question of the vires of the Act had been given in its presence, the appellant was entitled to continue the appeal against the State without reference to the plaintiff and seek the decision of the Court on the validity of the Act : Held, that the appeal must be dismissed as not maintainable, because (1) the appeal was only a continuation of the suit which, in the events, had abated, and (2) the certificate under articles 132 and I33 of the Constitution was incompetent, as it could not be granted in respect of an interlocutory finding.
The United Provinces vs Mst.
Atiqa Begum and Others, , distinguished.


judgement:
Special Leave Petition (Civil) No. 16085 of 1986.
From the Judgment and order dated 28.7.1986 of the Kerala High Court in M.F.A. No. 482 of 1981.
G. Vishwanatha Iyer and P.K. Pillai for the Petitioners.
Soli J. Sorabjee, M.N. Jha and K.L. John for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an application for leave to appeal under article 136 of the Constitution from the judgment and order of the High Court of Kerala dated 28th July, 1986.
The question involved in this case is whether where Eucalyptus is planted in the Travancore area of Kerala is a private forest or not.
Act 26 being Kerala Private Forests (Vesting and Assignment) Act, 1971 came into operation in 1971.
On 24th June, 1981 by a common order, the Forest Tribunal, Palghat held in favour of the respondent company, the Nilgiri Estate Ltd. that certain areas of forest did not vest in the government under the said Act.
The High Court affirmed that finding.
The propriety and validity of that decision are sought to be challenged by this application under article 136 of the Constitution.
The factual parameters have to be borne in mind in the background of the relevant provisions of the Act.
The said Act 26 by section 2(f) provides, inter alia, as follows: "(f) "private forest" means (1) in relation to the Malabar district referred to in subsection (2) of section 5 of the (Central Act 37 of 1956) (i) any land to which the Madras Preservation of Private Forests Act, 1949 (Madras Act XXVII of 1949), applied 446 immediately before the appointed day excluding (A) lands which are gardens or nilams as defined in the Kerala Land Reforms Act, 1963 (1 of 1964): (B) lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamom and lands used for any purpose ancillary to the cultivation such crops or for the preparation of the same for the market.
Explanation Lands used for the construction of office buildings, godowns, factories, quarters for workmen, hospitals, schools and playgrounds shall be deemed to be lands used for purposes ancillary to the cultivation of such crops; (C) lands which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with any other agricultural crop and (D) sites of buildings and lands appurtenant to and necessary for the convenient enjoyment or use of, such buildings; (ii) any forest nor owned by the Government, to which the Madras Preservation of Private Forests Act, 1949 did not apply, including waste lands which are enclaves within wooded areas.
(2) in relation to the remaining areas in the State of Kerala any forest not owned by the Government including waste lands which are enclaves within wooded areas: Explanation For the purposes of this clause, a land shall be deemed to be a waste land notwithstanding the existence thereon of scattered trees or shrubs; The Forest Tribunal in this case held, inter alia, in its order as follows: "The entire property in O.A. 39/79 (26.90 hectares corresponding to 66.50 acres) admittedly contains eucalyptus 447 trees raised by the petitioner as also cardamom plants here and there.
The Superintendent in charge of the petitioner estate had deposed to that effect.
The Range officer examined as R.W. 1 has stated that the disputed land on O.A. 39/79 lie in two bits and in both the bits there are eucalyptus trees raised by the petitioner, that they are aged between 12 to 15 years and are having a height of about 30 ft.
It is also stated by him that at present there are cardamom plants but they are raised after 1971.
" The Tribunal went on to record as follows: "But, the respondents have conceded that those trees are not of natural growth but they have been grown there with human skill, expenses and labour.
That these trees are planted for purposes of fuel necessary for the manufacture of tea also admits of no doubt.
" The tribunal concluded by stating: "The question whether eucalyptus plantations raised in a tea estate would be a forest or not has no bearing to the extent of the cultivation.
It should be remembered that eucalyptus trees were raised in the instant case not for raising a forest but for supply of fuel necessary for the manufacture of tea.
Hence I have no hesitation to come to the conclusion that the areas planted with eucalyptus trees in a tea estate do not form part of a vested forest or a private forest and therefore it is excluded from the purview of Act 26/71.
In other words, the entire lands involved in O.A. 39/79 and 20 acres out of the property shown as item 1 in O.A. 146/78 which are eucalyptus plantations are not private forest and they have not vested in the Government.
" On this basis, the High Court came to conclusion that the Tribunal was right.
The High Court in its order observed: "The question whether forest lands planted with eucalyptus by employing agricultural operations would be forest was considered by this court in the decision of a Division Bench reported in State of Kerala vs Anglo American Direct Tea Trading Co. Ltd., The same question was considered over again by a Full Bench 448 of this Court in the decision reported in State of Kerala.v.
A Moosa Haji, In the former decision, it was held: "As we have indicated in the absence of a definition of the term 'forest ' in Act 26 of 1971 we should take notice of the general meaning of the term as used in common parlance.
Whether one would understand a eucalyptus plantation within a Tea estate or adjoining a Tea estate as forest in common parlance would necessarily be the test.
This calls for consideration of the scope of the term 'forest" In the contest in which the term "Private forests" has been used in Act 26 of 1971, it is evident that it ap plies to lands other than those on which human skill, labour and resources have been spent for agricultural operations.
In the light of what we have adverted to we do not think that the State has succeeded in establishing that the land in which eucalyptus has been planted in the Tea plantations could be said to be forest land and if so we should agree with the decision of the Forest Tribunal that it would be outside the purview of the vesting provisions in Act 26 of 197 1.
" We are of the opinion that in view of the Finding recorded by the Tribunal, the decision and judgment of the High Court cannot be impugned.
It is instructive that in respect of proceedings initiated under the Land Reforms Act, this Court in Malankara Rubber and Product Co. & Ors. etc.
vs State of Kerala & Ors. etc.
; , observed at page 426 as follows: "Lands under eucalyptus or teak which are the result of agricultural operations normally would be agricultural lands.
They would certainly not be forests but the statements in the petitions seem to suggest that operations were carried hereon for the express purpose of growing these plants and trees.
However, lands which are covered by eucalyptus or teak growing spontaneously as in a jungle or a forest, would be outside the purview of acquisition.
" 449 It is true as noted above that this observation was made in the context A of Land Reforms Act but it was held that lands on which eucalyptus or teak are planted would be agricultural lands.
In this case it has been found as noted before that eucalyptus trees in the area concerned under dispute were raised in the instant case not for a forest but for supply of fuel necessary for the manufacture of tea, which is the industry carried on by the respondent company.
In view of the aforesaid facts and in the light of provisions of the Act 26 of 1971, we are of the opinion that the view of the High Court is right in the facts and circumstances of this case and as such calls for no interference.
The application is accordingly dismissed with no order as to costs.
We had in this matter advantage of the assistance of Shri Vishwanath Iyer, counsel for the petitioners and Shri Soli Sorabji, counsel for the respondent.
N.P.V. Petition dismissed.

summary/full:
The Forest Tribunal, Palghat, found that Eucalyptus trees raised by the respondent in the lands in dispute were not for raising a forest, but for supply of fuel necessary for the manufacture of tea.
It held that the question whether Eucalyptus plantations raised in a tea estate would be forest or not, had no bearing to the extent of the cultivation, that the area planted with the Eucalyptus trees in a tea estate did not form part of a vested forest or private forest and was, therefore, excluded from the purview of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (Act 26 of 1971) and that the Eucalyptus plantations in question were not private forest and did not vest in the Government under the Act.
Relying on an earlier Division Bench decision that in the context in which the term 'private forest ' had been used in the Act, it applied to lands other than those on which human skill, labour and resources had been spent for agricultural operations, the High Court held that the State had not succeeded in establishing that the land in which Eucalyptus had been planted could be said to be forest land and agreed with the decision of the Tribunal.
On the question whether land planted with Eucalyptus in tea estate in the Travancore area of Kerala was a 'private forest ' or not in terms of section 2(f) of the Kerala Private Forests (Vesting and Assignment) Act, 1971.
Dismissing the Special Leave Petition, ^ HELD: The Eucalyptus trees in the area concerned under dispute were raised not for forest but for supply of fuel necessary for the manufacture of tea which is the industry carried on by the respondent Company.
The High Court was, therefore, right in the facts and 445 circumstances of the instant case, in holding that the land in question was outside the purview of the vesting provisions contained in the Kerala Private Forests (Vesting and Assignment) Act, 1971.
[449B C] Malankara Rubber and Product Co. & ors etc.
vs State of Kerala & Ors. etc.
; , , referred to.


judgement:
Special Leave Petition (Civil) No.9887 of1987.
From the Judgment and order dated 20.8.
1987 of the Bombay High Court in L.P.A. No. 77 of 1987.
K.K. Venugopal, A.K. Sen, M.K. Nesari, P.H. Parekh and R.K. Dhillon for the petitioners.
F.S. Nariman, U.J.Maskeja, B.S. Basaniaum, J. Peres, A.K. Verma and D.N. MiShra for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This petition is for leave to appeal against the judgment and order of the Division Bench of the 485 Bombay High Court dismissing Letters Patent Appeal from the order of the learned Single Judge.
The 1st respondents being the trustees for the Port of Bombay are the owners of plot of land bearing Plot No. 62 admeasuring 576 sq.
yards Lying and situate in Pooria Street, Elphinstone Estate, Bombay 3.
In or about 1945 the trustees of the Port of Bombay granted lease of the said plot of land to one Mustafa Husein for the purpose of erecting a godown for carrying on commercial activities at a monthly rent of Rs. 925 which later on was increased to Rs.1,465.
In or about 1946 Mustafa Husein being the lessee of the 1st Respondent erected a permanent godown of brick, mortar and cement.
The said Mustafa Husein in 1958 granted lease of the said godown to the petitioners; the area of the godown is about 3,000 sq.
It is alleged that petitioners have since been carrying on their business in the said godown The Trustees of the Port of Bombay filed suit against the heirs of Mustafa Husein for eviction from the lease granted to Mustafa Husein for termination of the tenancy.
The ground for eviction was termination of tenancy.
The Trustees of the Port of Bombay in July, 1977 obtained a decree on admission against the heirs of Mustafa Husein in the said suit.
In or about May, 1985 warrant of possession in execution of decree dated 20th of July, 1977 was sought to be executed against the petitioners.
The petitioners obstructed the execution of the decree.
Thereupon in or about June, 1985, the Trustees of the Port of Bombay took out a Chamber Summons in the High Court of Bombay for removal of obstruction under order 21 Rules 97 to 101 of the Code of Civil Procedure.
Petitioners contended that they were lessees under the said Mustafa Husein and as such they were entitled to the protection of the Bombay Rent, Hotel and Lodging Houses Rates (Control) Act, 1947, hereinafter called the Bombay Rent Act, as the Bombay Rent Act applied to the building erected by a lessee from the local authority and as such the petitioners right of possession was protected under the provisions of the Bombay Rent Act.
The Trial Court allowed the Chamber Summons and rejected the petitioner 's contentions.
He observed that it was not necessary to record evidence in this case.
The petitioners being aggrieved preferred a first appeal.
The learned single judge of the High Court dismissed the first appeal holding that the petitioners were not entitled to the benefit of the Bombay Rent Act and negatived the contentions arising out of the Easement Act and also arising out of the alleged acquiescence of the Trustees of the Port of Bombay.
The petitioners preferred Letters Patent Appeal which was also dismissed by the Division Bench of the Bombay High Court.
The High Court observed that if the contentions of the petitioners were accepted then the provisions of Section 4(1)(a) of the Bombay Rent Act would become nugatory.
Being aggrieved 486 therefrom the petitioners seek leave to appeal to this Court under A Article 136 of the Constitution.
The question, is, whether the petitioners are entitled to protection under section 4(1)(a) of the Bombay Rent Act.
The answer will depend upon the question whether there was any building lease granted to the original tenant Mustafa Husein.
There was none, at least no such evidence was adduced before the learned Trial Judge or before the Division Bench of the High Court.
When the matter came before this Court for admission by our order dated 17th of September, 1987 as the question involved was whether there was any agreement or lease with the lessor that they will have to construct building on the land demised to them, but as no such lease had been produced so far, time was granted for production of such evidence.
Pursuant to the same today we have been shown two letters, one dated 16th of April, 1951 written by the Architect of the lessor forwarding the plants in triplicate to the Bombay Port Trust for approval, and the other letter dated 14th of June, 1951 written by the Manager, Land and Bunders to the architect of the lessor on the following subject: "Elphinstone State Reconstruction of a Shed on Monthly Tenancy Plot at Poona Street.
" The petitioners were informed that the plan was approved subject to the compliance of the Municipal Regulations.
This question arose in the Bombay High Court in Ram Bhagwandas vs Municipal Corporation of the City of Bombay, There interpreting the Bombay Rent Act and section 4(1) and 4(a) thereof Chief Justice Chagla speaking for the Division Bench held that the proper interpretation to put upon section 4(4)(a) was that "under an agreement, lease or grant" must qualify both "building erected" and "land held".
In other words, the building must be erected by the lessee pursuant to the agreement, lease or grant given to the person who held the land under that agreement, lease or grant.
Therefore, where a building was erected by the lessee not pursuant to any agreement with the lessor or not under any agreement with the lessor then the case did not fall under section 4( l)(a).
What section 4(1) does is to give immunity to the local authority in respect of the land which it has let out to the lessee and that immu 487 nity cannot be taken away merely because the lessee on his own volition and without being under any obligation under any agreement choses to put up structures on that land.
Section 4 deals with exemptions and sub section (1) provides as follows: "This Act shall not apply to any premises belonging to the Government or a local authority or apply as against the Government to any tenancy or other like relationship created by a grant from the Government in respect of premises taken on lease or requisitioned by the Government: but it shall apply in respect of premises let to the Government or a local authority".
Therefore, if we have premises which belong to Government or a local authority, then the Act would not apply.
The land here belongs to the local authority but the structures were put on by the lessees of the Port not under any building lease, and such protection can not be claimed in respect of these premises.
Sub section (4)(a) of section 4 is also relevant.
It was held "The expression 'premises belonging to the Government or local authority ' in sub section (1) shall, notwithstanding anything contained in the said sub section or in any judgment decree or order of a Court not include a building erected on any land held by any person from the Government or a local authority under an agreement, lease or other grant, although having regard to the provisions of such agreement, lease or grant the building so erected may belong or continue to belong to the Government or the local authority, as the case may be".
Chief Justice Chagla considered the historical background under which Section 4(a) was enacted by the Bombay Act of 1953.
This decision was approved by this Court in Kanji Manji vs The Trustees of the Port of Bombay [1962] Suppl.
3 S.C.R. 461.
Sub section (4)(a) and (b) read as follows: "(4)(a).
The expression "premises belonging to the Government or a local authority" in sub section (1) shall, notwithstanding anything contained in the said sub section or in any judgment, decree or order of a Court, not include a building erected on any land held by any person from the Government or a local authority under an agreement, lease or other grant, although having regard to the provisions of 488 such agreement, lease or grant the building so erected may belong or continue to belong to the Government or the local authority, as the case may be; and (b) notwithstanding anything contained in section 15, such person shall be entitled to create a tenancy in respect of such building or a part thereof." This Court observed at page 471 of the report that this was introduced by amendment and the purpose of the amendment was as follows: "The amendment achieved two different things.
It enabled the lessee of the particular kind of building described in cl.(a) to create sub tenancies in spite of the ban against sub tenancies contained in section 15.
It also excluded from the operation of sub section (1) the buildings specified in cl.
(a) of the sub section.
The amendment said nothing about the relationship of the Government or the local authority, on the one hand, and the lessee, on the other, in respect of the land.
The word "premises" in sub section (1) could mean the land or the buildings or both.
Sub section (4)(a) dealt only with the buildings, and did not deal with the land, because it used the word "buildings" and not the more general word "premises".
The import of sub section
(4)(a) of section 4 was thus limited to buildings, and did not extent to land.
The sub section, however, was drafted somewhat in artistically, and the obscurity of the language presents some difficulty.
The Trial Judge followed a decision of the Bombay High Court reported in Ram Bhagwandas vs Bombay Corporation In that case, one Khudabaksh Irani had taken lease of certain plots some 30 years back, and constructed some structures upon the open plot, and rented them out as tenements.
In 1947, Irani sold them to one Tyaballi.
In 1951, the Municipal Corporation filed a suit to eject Tyaballi from the plots, and by a consent decree, Tyaballi agreed to deliver up vacant and peaceful possession of the plots clear of all structures.
Tyaballi failed to remove the structures, and the Municipal Corporation sought to execute the decree.
The tenants thereupon filed a suit under 0.21, r. 103 of the Civil Procedure Code against Municipal Corporation, but the h suit was dismissed.
In the appeal which was filed in the 489 High Court, it was conceded that the Municipal Corporation was the owners of the plots in question, but protection was claimed on the basis of sub section
(4)(a) of section 4 of the Rent Control Act.
Chagla, C.J. in dealing with the history of the amending Act, pointed out that the legislature was seeking to protect by that sub section tenants who occupied buildings put upon land belonging to a local authority, if the buildings occupied by them were constructed under an agreement under which the lessee was under an obligation to construct buildings.
He pointed out that the protection of sub section
(4)(a) was to buildings and not to land, and that the phrase "under an agreement, lease or other grant" modified not only "held by any person from Government or local authority" but also "erected on any land".
therefore, held that the words "erected on any land held by any person form a local authority" were descriptive of the building and did not emphasise the point of time when the building was erected.
By that phrase, what was emphasised was "that the nature of the building must be such as to satisfy the test that it was erected on land held by a person from a local authority and the test must be applied at the time when the protection is sought." In that case, it was contended before this Court, as it was contended in the Bombay High Court, that so long as a building was erected under an agreement with Government or a local authority, the benefit of sub section
(4)(a) of section 4 would be available, no matter how many hands the property might have changed.
This Court accepted the interpretation of the High Court in the aforesaid decision.
In our opinion, in the instant case, in view of the fact that the original lease was only a monthly tenancy and not a building lease, the High Court was right in dismissing the objections on behalf of the petitioners.
We find no reason, therefore, to interfere with the order of the High Court.
The special leave petition therefore, fails and is accordingly dismissed without any order as to costs.
Since, the petitioners have been in possession of the premises for some time, in the interest of justice it is desirable, in our opinion, that the petitioners should have time to vacate the premises in question.
In the premises, we allow the petitioners to continue to remain in the premises upto 15th of September, 1988 provided they file the usual undertaking in this Court within four weeks.
N.P.V. Petition dismissed.

summary/full:
In 1945 the first respondent Trustees of Port of Bombay, granted lease of plot owned by them for the purpose of erecting a godown for carrying on commercial activities at a monthly rent of Rs. 925.
In 1946 the lessee erected a permanent godown.
In 1958, he granted lease of the said godown to the petitioners.
The first respondent filed a suit against the heirs of the original lessee for eviction on the ground of termination of tenancy, and obtained a decree.
When warrant of possession was sought to be executed, the petitioners obstructed the execution of the decree.
The first respondent thereupon took out a Chamber Summons for removal of obstruction under order 21 Rule 97 101 C.P.C.
The petitioners contended that as they were lessees under the original lessee they were entitled to protection of the Bombay Rent, Hotel and Lodging Houses Rates (Control) Act, 1947 the Bombay Rent Act which applied to the building erected by a lessee from the local authority.
The trial court rejected the petitioners ' objection and allowed the Chamber Summons.
The appeal of the petitioners was dismissed by the Single Judge of the High Court holding that they were not entitled to the benefit of the Bombay Rent Act.
The contentions arising out of the Easement Act and alleged acquiescence of the first respondent were negatived.
The Letters Patent Appeal was also dismissed by the Division Bench.
On the question whether the petitioners were entitled to protection under section 4(1)(a) of the Bombay Rent Act.
484 dismissing the Special Leave Petition, ^ HELD: Where a building was erected by the lessee not pursuant to or not under any agreement with the lessor then the case did not fall under section 4(1)(a) of the Bombay Rent, Hotel and Lodging Houses Rates (Control) Act, 1947.
[486G] Section 4(1) gives immunity to the local authority in respect of the land which it has let out to the lessee and that immunity cannot be taken away merely because the lessor on his own volition and without being in obligation under any agreement choses to put up structures on that land.
Therefore, if the premises belonged to the Government or a local authority then the Act would not apply.
[486H; 487A, D] In the instant case, The lands belong to the local authority but the structures were put on by the lessees of the first respondent not under any building lease, and such protection cannot be claimed in respect of these premises.
In view of the fact that the original lease was only a monthly tenancy and not a building lease, the High Court was right in dismissing the objections on behalf of the petitioners.
Since the petitioners have been in possession of the premises for some time, the petitioners are allowed to continue to remain in the premises upto 15th September, 1988.
[489F, H] Kanji Manji vs The Trustees of the Port of Bombay, [1962] Suppl.
3 S.C.R. 461 applied.


judgement:
tition (Criminal) No. 30 of 1987.
(Under Article 32 of the Constitution of India).
Harjinder Singh for the petitioner.
R.S. Sodhi for the Respondent.
The Judgment of the Court was delivered by KANIA, J.
This is a petition under Article 32 of the Constitution of India for a writ of habeas corpus or any other appropriate writ or order quashing the order dated 3rd January, 1985 passed by the Special Secretary to the Government of Punjab for detention of the petitioner and praying for the release of the petitioner.
By our order dated 8th May, 1987, we had held that the writ petition succeeds for the reasons which we would give later.
We had also set aside the order of detention and directed the petitioner to be released.
We are now giving the reasons for the said order.
459 The facts necessary for disposal of the writ petition lie within a fairly narrow compass.
The petitioner was detained on 21st November, 1985 pursuant to an order of detention dated 3rd January, 1985 passed under Sub Sections 1 & 2 of section 3 of the National Security Act, 1985 signed by the Special Secretary to the Government of Punjab setting out that the President of India in exercise of the powers conferred by Sub Sections ( 1) & (2) of Section 3 of the National Security Act, 1985 was pleased to order that the petitioner should be detained.
The ground given in that order is that the petitioner is indulging in activities prejudicial to the defence of India and the security of the State.
On 17th April, 1985, the petitioner, when he was in jail, was served with an order passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Act (referred to hereinafter as COFEPOSA), dated 17th April, 1985, directing his detention.
The petitioner made a representation against his order of detention under COFEPOSA.
He was produced before the Advisory Board under that Act and pursuant to the recommendation of the Advisory Board, his detention Under COFEPOSA was revoked.
The petitioner was also produced before the same Board, being also the Advisory Board under the National Security Act.
The petitioner did not make any representation against his detention under that Act as, according to him, he was confused and believed that his detention was only under COFEPOSA.
It appears that the Advisory Board confirmed the order of his detention.
On 24th January, 1986, an order was passed by the Under Secretary to the Government of Punjab, Home Department setting out that the President of India in exercise of powers conferred on him under Sub Section ( 1) of Section 12 read with Section 14 A( 1) (2) (c) & (d) of the (No. 65 of 1980) as amended confirmed the aforesaid order of detention and was pleased to order that the petitioner would continue to be detained in the custody of the Inspector General of Prisons, Punjab for a period of two years from the date of his detention.
The petitioner made a representation dated 18th December, 1986 through his Advocate addressed to the President of India for revocation of his detention.
On 24th December, 1986 the petitioner made a representation to the Special Secretary to the Government of Punjab, Department of Home Affairs and Justice, against his detention.
In this representation the petitioner, inter alia, contended that his detention was invalid as vital facts and materials that should have influenced the minds of the declaring authority and the detaining authority had not been placed before them.
Both the representations made by the petitioner were rejected on 26th February, 1987.
According to the respondent, the representation made to the Special Secretary, Government of Punjab was 460 received on 14th January, 1987.
But, according to the petitioner, it was received by the Special Secretary on 30th December, 1986.
In support of this contention the detenu has produced an acknowledgement slip along with a copy of his representation.
We propose to proceed on the assumption that the representation was received by the Special Secretary on 14th January, 1987 because, even on that assumption, the petitioner, in our opinion, must succeed in the petition.
In the petition the petitioner has challenged the order of detention passed against him under the on various grounds including the ground that Section 14 A of the is void as violating the Constitution of India.
We propose to dispose of the petition only on one ground, namely, that there was inordinate delay in consideration of the representation made by the petitioner to the Government of Punjab through Special Secretary; and hence we do not propose to discuss the other grounds urged by the petitioner.
We may mention here that as far as representation made by the petitioner to the Central Government by his Advocate 's letter addressed to the President of India is concerned, we do not propose to enter into any controversy regarding that representation as the Union of India has not been joined as a party to the petition.
The contention of the petitioner, on the basis of which we propose to dispose of this petition, is that he made a representation to the Government of Punjab on 18th December, 1986.
That representation, as per admission of the Government of Punjab, was received on 14th January, 1987 and there was undue delay in disposing of that representation which was rejected on 26th February, 1987, as aforesaid.
According to the petitioner there is no justification for this delay and on account of this delay the rights of the petitioner under Article 22(5) of the Constitution of India have been violated and the continued detention of the petitioner is not valid in law.
Coming to the affidavit filed by Shri V.V. Chadha, Under Secretary to the Government of Punjab, in this connection, we may point out that, apart from saying that the representation made by the petitioner as aforesaid, was received on 14th January, 1987, no explanation whatever is given as to why it took over a monty and ten days to consider and dispose of that representation.
It has been repeatedly laid down that in a matter of detention, the representation made by the detenu should be disposed of with utmost expedition and failure to do so vitiates the order of detention, because it infringes the fundamental right given to every citizen under Article 22(5) of the Constitution of India.
In support of his arguments, learned counsel for the petitioner 461 drew our attention to the decision of this Court in Saleh Mohammed vs Union of India, where a delay of 22 days in considering the representation of the detenu was held to be inordinate and unreasonable.
It was held that this delay violated the rights of the petitioner under Article 22(5) of the Constitution of India and vitiated the detention order.
In that case the detention order was under COFEPOSA and the detenu was arrested on 21st January , 1980.
On 20th February, 1980 the detenu made a representation to the detaining authority through Superintendent of Jail.
On 25th February, 1980 he was produced before the Advisory Board.
On 10th March, 1980 his detention was confirmed by the State Government and on 26th March, 1980 his representation was rejected by the State Government.
In the affidavit filed by the respondent in that case it was contended that the representation of the detenu made on 20th February, 1980 was received in the Home Department on 14th March, 1980.
It has been pointed out by this Court in that case that: "Times out of number, this Court has emphasised that where the liberty of an individual is curtailed under a law of preventive detention, the representation, if any, made by him must be attended to, dealt with and considered with watchful care and reasonable promptitude lest the safeguards provided in Article 22(5) of the Constitution and the statute concerned should be stultified and rendered meaningless.
" It was held that the functionaries of the state were guilty of gross negligence in dealing with and disposing of the representation of the detenu.
The delay of about 22 days during which time the representation of the detenu remained unattended in the office of the Suprintendent of Jail or Inspector General of Prisons was to be held as inordinate.
In Harish Pahwa vs State of U.P. & ors.
, [19811 3 S.C.R. 276 it has been pointed out by this Court that it does not look with equanimity upon delays in considering the representations of detenus.
Where the liberty of a person is involved, it is the duty of the State to determine his representations with the utmost expedition and deal with it continuously until a final decision is taken and communicated to the detenu.
In that case the representation of the detenu was received by the State Government on 4th June, 1980.
The detention was under COFEPOSA.
Comments were called for from the Customs authorities on 6th June, 1980 and the comments were received on 13th June, 1980.
462 On 17th June.
1980, the State Government referred the representation A to its Law Department for is opinion which was furnished on 19th June, 1980.
The representation was rejected on 24th June, 1980.
The rejection was communicated to the jail authorities two days later.
The writ petition filed by the petitioner was dismissed by the High Court.
The aforesaid principles were reiterated by this Court on an appeal preferred by the detenu against the decision of the High Court.
It was held in that case that there was no explanation given by the Government as to why no action was taken on the representation of the detenu on 4th, 5th and 25th June, 1980 and what consideration was given by the Government to it from 13th June, 1980 to 16th June,1980.
On that ground it was held that there was inordinate delay in considering the representation of the detenu and the detention became bad in law.
In the light of these decisions in the present case it must be held that the delay in dealing with the representation of the petitioner, which was admittedly received by the Government on 14th January, 1987 and rejected as late as on 26th February, 1987, must be considered as inordinate delay in dealing with the representation.
No explanation is given in the counter affidavit as to why the representation could not have been dealt with and disposed of earlier, and hence it must be held that the order of detention of the petitioner is vitiated by reason of delay in dealing with his representation.
It was contended by the learned counsel for the respondent that the representation made by the detenu to the Special Secretary, Government of Punjab was invalid as the Advocate who sent the representation had no authority to make that representation.
It was submitted by him in the alternative that the delay in dealing with the representation was on account of the fact that it was made by a person claimed to be the Advocate of petitioner but whose authority was not checked.
In our view neither of these contentions can be upheld.
These contentions have not been taken up in the counter affidavit and cannot be urged merely at the hearing of the petition.
There is nothing in law which prevents a representation being made by an Advocate on behalf of the detenu.
If there was any difficulty on that ground, enquiries should have been made with the Advocate as to what was his authority to represent the detenu, and no such enquiry has been made in the present case.
Thus, in the present case, the fact that the representation was made by the Advocate does not explain the delay in dealing with that representation and cannot constitute any explanation for the delay in dealing with it.
463 lt was next sought to be contended by learned counsel for the respondent that the delay in dealing with the representation had caused no prejudice to the petitioner, because it admitted that he preferred a writ petition against his detention to the Punjab & Haryana High Court and that writ petition was dismissed by the High Court.
In our view this submission also cannot sustain order of detention.
It is true that the writ petition preferred by the petitioner to the Punjab and Haryana High Court was dismissed, but we are informed that a Special Leave Petition filed against that decision is pending in this Court.
Moreover at the time when the writ petition was dismissed, the petitioner had not made any representation to the State Government at all and hence the dismissal of his writ petition by the High Court cannot be regarded as any substitute for consideration of his representation by the State Government which, unlike the Court, might be entitled to go into the factual merits of the grounds forming the basis of detention order.
In support of his contention, learned counsel for the respondent sought to rely on the decision of this Court in Smt.
Asha Keshavrao Bhosale vs Union of India & Anr., ; in which case it was held that the delay of about two months in disposal of the representation made by the petitioner on behalf of the detenu to the Chief Minister against his order of detention did not vitiate the order of detention.
That case, however, is of no assistance to the respondent because it turns on its own facts.
A detailed representation was made in that case by the Secretary, Khed Taluka Maratha Seva Sangh which espoused the cause of the detenu and challenged the detention.
That representation was received on 29th November, 1984 in the Secretariat of the Chief Minister.
It was forwarded to the Home Department on 3rd December, 1984 and disposed of expeditiously, namely, on 12th December, 1984.
The rejection of that representation was communicated on 13th December, 1984.
The High Court, which dismissed the petition of the detenu had considered the contents of both the representations and held that the representation made by the petitioner was the second one and based yon the same grounds and delay in disposing of that representation did not prejudice the case of the detention.
That conclusion was confirmed by the Supreme Court.
The facts in this case are nowhere comparable to the facts of that case, and hence the principles laid down in that case have no application to the case before us.
It was for the aforesaid reasons that the order setting aside the order of detention was passed by us as stated earlier.
N.P.V. Petition allowed.

summary/full:
The petitioner was detained by the Punjab Government pursuant to an order of detention passed under sub sections (1) and (2) of section 3 of the .
When in jail, he was served with an order passed under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Act (COFEPOSA) directing his detention.
The petitioner made a representation against his order of detention under COFEPOSA.
He was produced before the Advisory Board.
Pursuant to Board 's recommendation, his detention was revoked.
He was also produced before the same Board, being also the Advisory Board under the .
He did not make any representation against his detention under the , believing that his detention was only under COFEPOSA.
The Board confirmed the detention order.
On January 24, 1986 an order passed under subsection (1) of section 12 read with section 14 A(1)(2)(c) and (d) of the , as amended, confirmed the aforesaid order of detention and the petitioner was directed to be continued to be detained for a period of 2 years from the date of his detention.
The petitioner made a representation dated December 18, 1986, through his Advocate, addressed to the President of India for the revocation of his detention.
On December 24, 1986, the petitioner made a representation to the Government of Punjab against his detention, con tending that his detention was invalid as vital facts and materials that should have influenced the minds of the declaring authority and the detaining authority had not been placed before them.
Both these 457 representations were rejected on 26.2.1987.
The petitioner challenged the order of detention on various grounds including the one that there was inordinate delay in dealing with his representation to the Punjab government.
It was contended that there was no justification for the undue delay in disposing of his representation, which had resulted in violation of his rights under Article 22(5) of the Constitution and that his continued detention was not valid in law.
It was contended on behalf of the respondent State that the representation was received on January 14, 1987, and it was invalid as the Advocate who sent it had no authority to make it and that the delay in dealing with it was on account of the fact that it was made by a person claiming to be an Advocate of the petitioner whose authority was not checked, and that the delay had caused no prejudice to the petitioner because he preferred a writ petition against his detention to the High Court which was dismissed.
This Court allowed the writ petition, set aside the order of detention, and directed release of the petitioner.
Giving reasons for its decision, this Court, ^ HELD: 1.1 Where the liberty of a person is involved, it is the duty of the State to determine his representation with utmost expedition and deal with it continuously until a final decision is taken and communicated to detenu.
Failure to do so vitiates the order of detention, because it infringes the fundamental right given to every citizen under Article 22(5) of the Constitution of India.
[461F G, 460H] In the instant case the delay in dealing with representation of the petitioner, which was admittedly received by the Government on January 14, 1987 and rejected as late as on February 26, 1987, must be considered as inordinate delay in dealing with the representation.
No explanation is given in the counter affidavit as to why the representation could not have been dealt with and disposed of earlier.
Hence, the order of detention is vitiated by reason of delay in dealing with his representation.
[462C E] Saleh Mohammad vs Union of India, and Harish Pahwa vs State of U.P. & Ors., ; , relied on.
458 1.2 There is nothing in law which prevents a representation being made by an Advocate on behalf of the detenu.
If there was any difficulty on that account, enquiry should have been made with the Advocate as to what was his authority to represent the detenu.
No such enquiry has been made in the present case.
Thus, the fact that the representation was made by the Advocate does not explain, and cannot constitute any explanation for the delay in dealing with that representation.
[462G H] 1.3 No doubt the writ petition preferred by the petitioner was dismissed but Special Leave Petition against that decision is pending in this Court.
Further, at that time, the petitioner had not made representation to the State Government at all.
Hence the dismissal of the writ petition by the High Court cannot be regarded as any substitute for consideration of his representation by the State Government which, unlike the Court, might be entitled to go into the factual merits of the grounds forming the basis of detention order.
[463B C] Smt.
Asha Keshavrao Bhosale vs Union of India & Anr., ; , distinguished.


judgement:
Special Leave Petition No. 1900 of 1981 etc.
From the Judgment and order dated 3.2.1981 of the Allahabad High Court in C.M.W.P. No. 1924 of 1981.
P.P. Rao, Ambrish Kumar, Mrs. Rani Chhabra, M. Qamaruddin, Mrs. Qamaruddin, A.K. Srivastava, B.B. Tawakley, Mrs. Subhadra, S.N. Singh, C.K. Ratnaparkhi, S.K. Gupta, Uma Dutt, C.P. Lal, M.K. Garg, and Lokesh Kumar for the Petitioners.
Anil Dev Singh, O.P. Rana, B.P. Maheshwari, Mrs. section Dikshit, P.K. Pillai, R. Ramachandran, A.K. Srivastava, S.C. Birla, section Wasim, A. Qadri, N.N. Sharma, Shakeel Ahmad and K.K. Gupta for the Respondents.

summary/full:
% In exercise of the powers conferred by Section 239(2)(E)(a) of the Uttar Pradesh Kshetra Samiti and Zila Parishads Adhiniyam, 1961, various Zila Parishads framed a bye law, providing that right to trade in carcass utilisation in the rural area of the respective Zila Parishads shall be put to public auction.
Such activities comprised of taking of the carcass of dead animals to a specified place, skinning of the carcass, storage of bones and skins, curing and dyeing of such skins and preparation of leather goods.
In a writ petition challenging the validity of the said bye law, a Single Judge of the High Court struck down the latter part of the bye law framed by one of the Zila Parishads, providing for farming out of the privilege of utilisation and disposal of carcass of dead animals, on the ground that it created a monopoly in favour of an individual or group of individuals.
A Division Bench reiterated that view in two writ petitions filed before it, and distinguished the decision of this Court in State of Maharashtra vs Mumbai Upnagar Gramodyog Sangh, ; taking a contrary view on the ground that the restrictions were reason able within the meaning of article 19(6), in the context of the thickly populated metropolitan city.
The correctness of the said decision of the Division Bench was open to question.
Another Division Bench referred the matter to a Full Bench, which expressly repelled the aforesaid view, and held that it was competent for the Zila Parishads to frame such bye laws in exercise of the powers conferred by section 239(2)(E)(a) of the Act.
539 Against the various judgments and orders of the High Court, special leave petitions and appeals by special leave challenging the constitutional validity of the aforesaid bye law, were filed in this Court.
In SLP(C) No. 1900 of 1981, this Court, in order to protect the interests of persons traditionally engaged in the work of skinning, tanning etc., directed the State Government to frame a Model Scheme for carcass utilisation in the Etawa district at the village panchayat level on an experimental basis, and passed certain incidental directions as to the price payable for skins, bones and horns.
As nothing further was done, in partial modification of its earlier orders, this Court directed the Zila Parishad, Etawa to issue licence to any person who applied for the same.
In the meantime, the Government of Uttar Pradesh issued a Circular dated June 7, 1986 stating that in future the licences for disposal of carcass of animals should be granted only to registered industrial cooperative societies formed by the persons engaged in this work.
Disposing of the Special Leave Petitions and civil appeals, ^ HELD: It is plain upon the reading of the Circular dated June 7, 1986 issued by the State Government that the contract system envisaged by the impugned bye law framed by the different Zila Parishads in the State has been virtually abandoned, and the State Government proposes to replace the system of auction by a system of licensing, giving preferential right to cooperative societies consisting of members of the traditional occupation, for the disposal of carcass of dead animals.
[544E F] In view of the subsequent policy decision taken by the State Government, the present controversy no longer survives.
It would be open to different Zila Parishads, in view of the directive of the State Government, to frame the appropriate Bye laws consistent with and for the implementations of the policy declared by the State Government.
The Zila Parishads, while considering the question, shall keep in view the directions issued by this Court on April 15, 1983, and also the order passed introducing the licence system in the Zila Parishad, Etawa on an experimental basis.[544F G] For a meaningful effectuation of the policy decision of the Government, which is taken in the larger interests of a sizeable segment of the weaker sections of the society, it is of utmost importance that the 540 work of formation of cooperative society of the members of the traditional occupation, who lack the will and the ability to organise themselves, should be taken up by the social welfare department of the State Government and every effort should be made to bring the members of the traditional occupation within the fold of these cooperative societies.
The social welfare department shall take effective steps to organise such cooperative societies.
[544H; 545A B] Wherever it is not possible to implement the policy decision and there is likely to be a loss of revenue or other compelling reason, it would be open to the Zila Parishads, as a purely transitory measure and with the prior concurrence of the State Government, to arrange for carcass utilisation by auction if the Bye laws permit such auction.
It is only where, for any compelling reason, the said policy decision cannot be implemented effectively in any area, that the concerned Zila Parishad could, with the prior sanction of the State Government, continue the present contract system subject to such variation as may be necessary till the cooperative societies are formed.
[545C D1]