judgement:
Criminal Appeal 151 of 1963.
Appeal by special leave from the judgment and order dated March 27, 1962 of the Punjab High Court in Criminal Revision No. 1137 or 1961.
Gopal Singh, for the appellant.
The respondent did not appear.
The Judgment of Wanchoo and Sikri JJ.
was delivered by Wanchoo J. Mudholkar J. delivered a dissenting opinion.
Wanchoo, J.
This appeal by special leave raises the question of the interpretation of section 259 of the , No. 11 of 1924, (hereinafter referred to as the Act).
The respondent was a tenant of the appellant.
An application was made by the Cantonment Executive Officer, Ambala, on January 7, 1960, for realisation of a sum of Rs. 649.50 from the respondent under section 259 of the Act on the ground that the amount was due as arrears of rent on the basis of a lease in favour of the respondent.
The respondent apparently questioned the jurisdiction of the magistrate to realise the amount.
The magistrate held that he had jurisdiction and issued warrants for attachment of the movable property of the respondent on June 13, 1961.
Thereupon the respondent went in revision to the Sessions Judge Ambala contending that the magistrate had no jurisdiction to realise the arrears of rent due under a lease 343 under section 259 of the Act and in any case that could not be done without taking into account the objections of the respondent.
The Sessions Judge following certain earlier decisions of the Lahore High Court took the view that rent under a lease could not be recovered under section 259 of the Act and made a reference to the High Court under section 439 of the Code of Criminal Procedure.
The High Court heard the reference and accepted the view of the Sessions Judge and set aside the order of the magistrate dated June 13, 1961.
The High Court having refused the certificate, the appellant obtained special leave from this Court; and that is how the matter has come up before us.
Two questions have been raised by learned counsel for the appellant in this appeal.
In the first place, he urges that the magistrate when he is acting under section 259 of the Act is a persona designata and therefore his order is not revisable under sections 435/439 of the Code of the Criminal Procedure.
The Sessions Judge and the High Court therefore had no jurisdiction to interfere with that order under sections 435/439 of the Code of Criminal Procedure.
Secondly, it is urged that the view taken by the High Court that arrears of rent due under a lease cannot be recovered under section 259 of the Act is incorrect.
The question as to the jurisdiction of the Sessions Judge and High Court was never raised before the appeal in this Court.
Learned counsel, however, relies on the Dargah Committee,Ajmer vs State of Rajasthan(1) in support of his contention that the magistrate acting under section 259 of the Act acts as a persona designata and therefore his order under that section is not revisable under sections 435/439 of the Code of Criminal Procedure and the Sessions Judge and the High Court had no jurisdiction under those provisions to interfere with such an order.
The case cited on behalf of the appellant certainly supports the contention put forward; but in the circumstances of this case we are not prepared to allow this contention to be raised at this stage.
It is true that a question of jurisdiction, not depending upon facts to be investigated, can be allowed to be raised at any stage.
Ordinarily if we were satisfied that the High Court had no jurisdiction at all to interfere we would have allowed this question to be raised even at this late stage.
But we are of opinion that though the High Court may not have jurisdiction to interfere under sections 435/439 of the Code of Criminal Procedure it could certainly interfere with the order of the magistrate under article 227 of the Constitution.
Now if this point had been raised before the High Court it may very well be that the High Court might have considered the reference as if it was an application before it under article 227 of the Constitution, in which case the High Court would have jurisdiction to interfere with the order or the magistrate if it came to the conclusion that the magistrate had 344 no jurisdiction in such circumstances under section 259 of the Act.
In these circumstances we are not prepared to permit the appellant to raise this point before us at this late stage.
This brings us to the interpretation of section 259 of the Act as it stood after amendment by Act II of 1954.
The relevant part of the section now reads as follows : "Notwithstanding anything elsewhere contained in this Act, arrears of any tax, rent on land and buildings and any other money recoverable by a Board or a Military Estate Officer under this Act or the rules made thereunder may be recovered together with the cost of recovery either by a suit or.
on application to a Magistrate having jurisdiction in the cantonment or in any place where the person from whom such tax, rent or money is recoverable may for the time being be residing, by the distress and sale of any movable property of, or standing timber, or growing crop belonging to such person which is within the limits of such magistrate 's jurisdiction, and shall if payable by the owner of any property as such, be a charge on the property until paid; provided.
. . . . . . . . (2) * * * * . ' ' The first question that arises is whether rent on land and buildings mentioned ' in the section is governed by the words "recoverable b a Board or a Military Estates Officer under this Act or the rules made thereunder".
There is no doubt that "any tax" and "any other money" mentioned in the section are governed by the words "recoverable by a Board etc.
" It seems to us that the words "rent on land and buildings" which appear between the words "any tax" and "any other money" must equally be governed by the words "recoverable by a Board etc." Therefore the provisions of section 259 of the Act can be utilised for realisation of arrears of rent on land and buildings only if such rent is recoverable by a Board or a Military Estates Officer under the Act or the rules made thereunder.
The word "recoverable" in the context obviously means "claimable".
for section 259 itself provides for the manner of recovery.
Therefore action for recovery can be taken under section 259 with respect to rent on land and buildings provided such rent is claimable by a Board under the Act or the rules framed thereunder.
This view was taken by the Lahore High Court in Banarsi Das vs Cantonment Authority Ambala Cantonment (1) and is in our opinion correct.
It may be added that in 1938.
the words "rent on land ' and buildings" and "under the rules" did not appear in section 259.
Even so.
the Lahore High Court took the view with respect to the section as it then stood that the money to be recovered under 8.
259 must be claimable by the Board under the Act.
(1) A.I.R. 1933 Lah.
345 The next question that arises is whether "rent on land and buildings" on lease can be said to be claimable by the Board "under the Act or the rules.
made thereunder".
It is urged on behalf of the appellant that cl.
(p) of section 116 of the Act provides for "maintaining and developing the value of property vested in, or entrusted to the management of the Board", and section 116 A gives the Board power to manage any property entrusted to its management by the Central Government on such terms as to the sharing of rents and profits accuring from such property as may be determined by rule.
Further reliance is placed on the Cantonment Property Rules, 1925.
Rule 8 thereof provides that immovable property which vests in and belongs to the Cantonment Authority may be leased by the Cantonment Authority without a premium on the condition that a reasonable rent is reserved and made payable during the whole term of the lease and that the lease or the agreement for the lease is not made without the previous sanction of the Cantonment Authority by resolution at a general meeting, or the Officer Commanding in Chief of the Command or the Government of India as the case may be.
It is urged that these provisions of the Act and the Rules show that the Board has the power to claim rent thereunder in respect of the leased property.
Reliance is further placed on the Cantonment Land ' Administration Rules 1937 which provide how rents would be fixed when land is leased out by the Cantonment Authority.
Rule 4 of these Rules provides for classification of land and r. 8 for standard table of rents; r. 9 (6) vests the management of class 'C ' land in the Board; r. 26 provides for disposal of land ' by private agreement; r. 28 for execution of leases, rr. 29 and 30 for maintenance of grants registers of building sites; r. 31 for leases for special periods and on special terms; r. 32 for agricultural land leases; r. 34 for record of agricultural leases; r. 35 for execution of agricultural leases; r. 37 for leases for miscellaneous purposes and r. 41 for special conditions in leases.
It may be mentioned that originally there was a rule (r.42) in these terms : "Recovery of arrears All arrears of rent and other payment under these rules together with interest on such arreas at the rate of seven and a half per cent per annum from the date when they become due to the date of their realisation, shall, on the application of the person specified in sub section (2) of section 259 of the Act, or of the Military Estates Officers, as the case may be, recoverable in the manner provided in that section.
" That rule however no longer exists as it was repealed in 1940.
There is no doubt that in view of the provisions of the Act, the Property Rules and the Land Administration Rules to which we have referred above, the Board has the power to manage lands (1) A.I.R. 1933 Lab. 517, 346 and Buildings vested in it or entrusted to its management, lease them out and fix rents therefor.
But the right of the Board to claim the rent on land and buildings does not arise from these provisions under the Act and the Rules referred to above.
The right of the Board to claim rent only arises after the execution of the lease.
Therefore rent on land and buildings is not claimable by the Board under the provisions of the Act or the Property Rules or the Land Administration Rules but under the lease.
It follows therefore that section 259 (1) cannot be applied to a simple case of money due to the Board on a contract of lease.
It is however urged on behalf of the appellant that the words "rent on land and buildings" which were added by the 1954 Amendment refer to something of that kind which is recoverable under section 259 as otherwise the amendment would be meaningless.
That is undoubtedly so.
We find however, that section 256 provides that in the event of non compliance with the terms of any notice, order or requisition issued to any person under this Act, or any rule or bye law made thereunder, requiring such person to execute any work or to do any act, it shall be lawful for the Cantonment Authority after giving notice in writing to such person, to take such action or such steps as may be necessary for the completion of the act or work required to be done or executed by him, and all the expenses incurred on such account shall be recoverable by the Cantonment Authority.
Section 257 then provides that if any such notice as is .referred to in section 256 has been given to any person in respect of property of which he is the owner.
the Cantonment Authority may require any occupier of such property or of any part thereof to pay to it, instead of to the owner, any rent payable by him in respect of such property, as it fails due, upto the amount recoverable from the owner under section 256 and it further provides that any amount recovered from any occupier instead of from an owner under sub section
(1) shall.
in the absence of any contract between the owner and the occupier to the contrary, be deemed to have been paid to the owner.
Here at any rate we have an example of the Board 's power to claim rent from a tenant of an owner under section 257 of the Act read with section 256.
So it cannot be said that there is no case where the Act does not provide for claim of rent by the Board.
We may add that there may be other cases like this either under the Act or under the Rules.
In our view it is in such cases where the Act or the Rules in terms make the rent on land and buildings claimable by the Board.
that section 259 will apply.
But where the liability to pay rent arises purely on the basis of a lease between the Board and the tenant, nothing in the Act or the Rules has been brought to our notice, particularly after r. 42 referred to above has been repealed, which makes such rent claimable by the Board under the Act or the Rules.
We may add r. 42 was repealed long before 1954 when the words "rent on land and buildings" came in section 259.
So it cannot be argued that the omission of r. 42 was due to the amendment of 1954.
347 It is urged that the section provides for recovery by suit also and as such it wilI not be possible for the Board to recover rent of land and buildings let out by it even by suit if the rent in the section refers only to rent directly claimable under the Act or the Rules.
This is clearly incorrect.
The section does not bar the right of the Board as an owner or holder of land and buildings to take action for recovery of rent thereof by suit under the general law of the land.
Further by providing for recovery of rent of the kind we have indicated above by suit or by application rent of the kind we have indicated above by suit or by application to a magistrate the section does not affect the right of the Board to recover rent of its land and buildings by suit for such rents are entirely outside the section and the right of the Board under the general law of the land is not taken away by the section.
It may be that the section provided for recovery by suit as an alternative as a matter of abundant caution to avoid an argument that the application to a magistrate was the only means open to the Board for recovery of sums covered by the section.
In any case the view we are taking will not affect the right of the Board to recover by suit under the general law rent of its land and buildings given on lease.
In the circumstances we agree with the High Court that the rent in this case was not claimable by the Board under the Act or the Rules but only under the lease in favour of the respondent.
Therefore section 259 (1) insofar as it refers to recovery of such rent by application to a magistrate will not apply.
In the circumstances the appeal fails and is hereby dismissed.
Mudholkar, J.
The question which falls for a determination in this appeal is whether under section 259 of the Cantonment Act, No. II of 1924 'rent ' on land or buildings under the management of the Cantonment Board can be recovered thereunder by a Magistrate.
This question was raised by the respondent in a revision application made by him before the Sessions Judge under section 435 of the Code of Criminal Procedure against the order of the Magistrate, II Class, made under the aforesaid provision upon an application made to him by the Executive Officer, Ambala Cantonment for the recovery of Rs. 649.50 nP being the arrears of rent alleged to be due from the respondent to the Cantonment Board.
the learned Sessions Judge made a reference to the High Court under section 438 of the Code of Criminal Procedure on the authority of the decisions in Municipal Committee, Delhi vs Hafiz Abdullah (1) and Guranditta Mal vs Emperor (2).
The High Court, after referring to these cases and to Banarsi Das vs Cantonment Authority, Ambala Cantonment (2) accepted the reference and set aside the order of the Magistrate.
By special leave the Cantonment Board has come up to this Court in appeal.
(1) A.I.R 1994 Lah 699 (2) A.l.
R. (3) A.l.
R. 348 Two points were urged by Mr. Gopal Singh appearing for the appellant.
The first is that the proceeding before the Magistrate was not one under the Code of Criminal Procedure and, therefore, neither could a reference be made by the Sessions Judge to the High Court under section 438.
P.C. nor could an order be made by the High Court under section 439.
The second point is that upon a correct interpretation of section 259 of the Act the Magistrate had the power to recover the rent due to the appellant in the manner provided for in the section.
We did not allow the first contention to be raised for two reasons.
In the first place the point was not raised in the High Court and in the second place it would not be fair to the respondent who is ex parte to have the appeal decided upon a new ground altogether.
In so far as the second point is concerned it seems to me that the contention of Mr. Gopal Singh is correct and that the High Court was in error in setting aside the order of the Magistrate.
The two cases upon which reliance was placed before the High Court arose under section 81 of the Punjab Municipal Act (III of 1911) which runs thus: "Any arrears of any tax, water rate, rent, fee or any other money claimable by a committee under this Act may be recovered on an application to a Magistrate." According to the Lahore High Court the operation of this section was controlled by the words "claimable by a committee under this Act" and that it was not any sum that could be described as rent or fee which could be recovered under summary provisions of that section.
According to that High Court only a sum that was claimable by the Committee under the express provisions of that Act could be recovered by resort to summary procedure provided by that section.
In Banarsi Das 's case(1) it was similarly held that the expression "recoverable by the Cantonment Authority under the Act" did not include money due under an ordinary contract between the Cantonment Authority and others and that section 259 of the Act applied only to such monies as were recoverable by that authority under express provisions of the Act.
It is this last decision which was relied upon by the High Court and it pointed out that though the word rent did not occur in section 259 of the Act as it stood when Banarsi Das 's case(1) was decided the introduction of that word had not altered the position in so far as recovery of rent is concerned.
Section 259 of the Act as it now stands runs thus: "Notwithstanding anything elsewhere contained in this Act, arrears of any tax, rent on land and buildings and any other money recoverable by a Board or a Military Estates Officer under this Act or the rules made thereunder may be recovered together with the cost of recovery (1) A.I.R. 1938 Lah.
349 either by a suit or on application to a Magistrate having jurisdiction in the cantonment or in any place where the person from whom such tax, rent or money is recoverable may for the time being be residing, by the distress and sale of any movable property of, or standing timber or growing crop belonging to such person which is within the limits of such magistrate 's jurisdiction, and shall, if payable by the owner of any property as such, be a charge on the property until paid for.
" Then there is a proviso which need not be quoted.
The aforesaid section deals with "Method of recovery".
It sets out two methods: one is institution of a suit and the other is making of an application to a Magistrate.
Therefore, where rent of land or building under the management of the Cantonment Authority falls to be recovered.
resort could be had ' either to a suit or to summary proceeding as provided in the section.
But if the expression "rent" is confined to money due under some express provision of the Act it will lead to a curious result.
Thus in respect of rent of land or buildings under the management of the Board neither remedy would be available though the claim for the rent is ultimately traceable to those provisions of the Act and ' the Rules which empower the Board to let out the land or buildings upon the ground that it cannot be said to be claimable or recoverable under any express provision of the Act.
Surely the Legislature could never have meant that even a suit for recovery of rent would be maintainable at the instance of the Board only if it was for the purpose of recovery of rent from a tenant who was liable under an express provision of the Act or the Rules to pay rent to the Board.
Under sections 116 and 116A of the Act.
read along with Cantonment Land Administration Rules, 1937, the Cantonment Board is entrusted with certain duties and is empowered to do certain acts in relation to the Cantonment property under its management.
It is the duty of the Board, among other things, to maintain and develop the property vested in or entrusted to its management.
Section 116 A provides as follows: "A Board may, subject to any conditions imposed by the Central Government, manage any property entrusted to its management by the Central Government on such terms as to the sharing of rents and profits accruing from such property as may be determined by rules made under section 280.
" The Cantonment Land Administration Rules, 1937 contain detailed provisions as to the leasing of land, standardisation of rents, disposal of land by a private agreement, execution of leases etc.
Powers are thus conferred upon the Board to let out property vested in it or which is under its management.
It would follow from this that where in exercise of these powers the Board has let out any land or buildings it has the right as well as the duty to collect the rent from the tenant.
Therefore, though, strictly speaking, the 350 rent due from the tenant cannot be said to be payable under any express provision of the Act the tenant 's liability to pay and the Board 's right to recover it is ultimately traceable to the Act inasmuch as this liability has arisen by reason of the exercise of a power exercised or performance of duty by the Board under express provisions of the Act and the Rules.
Surely the Board cannot be deprived of the right to recover the rent or be absolved from the duty to recover it by resort to the normal remedy of suit.
Yet upon the interpretation placed upon section 259 of the Act by the Lahore High Court and by the Court below a suit as well as a proceeding before a Magistrate have to be placed on the same footing.
This will lead to an impossible position and it cannot for one moment be thought that this is what the Legislature had intended.
What the expression "recoverable by a Board ' or the Military Estates Officer under this Act or the rules made thereunder" means is what the Act or the Rules permit the Board to recover or what the Act or the Rules permit the Military Estates Officer to recover.
To put it in another way the words "recoverable by" and "under this Act or the Rules made thereunder" are meant to govern "a Board" or "a Military Estates Officer".
It was necessary to make this provision because certain duties are imposed and powers conferred on the Board and certain other duties imposed and powers conferred upon the Military Estates Officer and the section makes it clear that the power to recover money is exercisable by such of these two authorities as performs the duty or exercises the power by reason of which the liability of another to pay the tax, rent or any other money arises.
In support of the view which I have expressed I may refer to a decision of the Court of Appeal in Tideway Investment and Property Holdings Ld.
vs Wellwood (1).
There one of the questions which had to be considered related to awarding costs to the successful plaintiffs who were the landlords of the defendants.
The suit was brought in the High Court and the plaintiffs contended that since the defendants have committed a breach of the provisions of the lease they had forfeited it and, therefore, were entitled to possession on forfeiture as also to damages for breach of the contract contained in the lease.
The defendants claimed protection of the Rent Acts and Harman J., who heard the case held that the lease having already expired there could be no forfeiture and the tenant who was holding over became a statutory tenant entitled to the protection of the Rent Acts.
Evershed M.R., however, said that the tenant became a trespasser or a statutory tenant and that the breach of the convenant was a continuing one.
Therefore, he said, it was plain that all claims arising out of the breach of the convenant and consisting primarily of a claim for possession must be regarded as arising out of or under the Rent Restriction Act, 1920.
Harman J., also held that the claim must be regarded as (1) 351 claims under the Rent Act and section 17(2) precluded ' him from awarding costs to the successful plaintiffs.
Section 17(2) reads thus: "A county court shall have jurisdiction to deal with any claim or other proceedings arising out of this Act or any of the provisions thereof, notwithstanding that by reason of the amount of claim or otherwise the case would not but for this provision be within the jurisdiction of a county court, and, if a person takes proceedings under this Act in the High Court which he could have taken in the county court, he shall not be entitled to recover any costs.
" The Master of the Rolls, with whom the other Lords Justices agreed, took the same view as Harman J.
It may be mentioned that the suit was not instituted under any specific provision of the Rent Acts and the claim for possession was based on the breach of a covenant in the lease which the Court of Appeal treated as a continuing one and yet was treated as one under the Rent Restriction Act, 1922 because of the defence raised.
This case thus illustrates that an expression such as the one found in section 259 of the Act must be construed liberally and not narrowly.
In Stroud 's Judicial Dictionary, Vol.
I, an Australian case, Winstone vs Wurlitzer Automatic Phonograph Co. of Australia Pty Ltd. C) on which could not lay my hands is cited.
There it was held that 'authorise ' should be read in its ordinary sense of sanction, approve or countenance.
I do not think that there is any substantial difference between "Authorised by the Act" and "under the Act".
It would, therefore, be not right to construe the section in the way it was construed by the court below.
On the other hand it must be held that where the liability to pay money arises against a person by reason of something done by the Board or the Military Estates Officer in exercise of a power or the performance of a duty under the Act that liability can be enforced by the authority concerned either by instituting the suit or by making an application to a Magistrate.
Further, if the word 'rent ' in section 259 of the Act were to be given a restricted meaning that word itself would be rendered otiose because there is no provision whatsoever in the Act which expressly makes rent claimable or recoverable by either of the two authorities specified therein.
Our attention was drawn to section 257(1) which with.out its proviso reads thus: "If any such notice as is referred to in section 256 has been given to any person in respect of property of which he is the owner, the Board may require any occupier of such property or of any part thereof to pay to it, instead of to the owner, any rent payable by him in respect of ; 352 such property, as it falls due, up to the amount recoverable from the owner under section 256.
" It cannot, however, be said that what the Legislature had in contemplation when it am.ended section 259 by adding the word "rent" therein was "rent" to which reference is made in section 257(1).
Section 257 is complementary to section 256.
What section 256 provides is as follows: "In the event of non compliance with the terms of any notice, order or requisition issued to any person under this Act, or any rule or bye law made thereunder, requiring such person to execute any work or to do any act, it shall be lawful for the Board, whether or not the person in default is liable to punishment for such default or has been prosecuted or sentenced to any punishment therefor, after giving notice in writing to such person, to take such action or such steps as may be necessary for the completion of the act or work required to be done or executed by him, and all the expenses incurred on such account shall be recoverable by the Board.
" Therefore, what the Board has the power to recover from the person is the expenses which it has incurred.
One of the modes is to proceed against the occupier of any property belonging to the owner thereof and require that occupier to pay to the Board instead of to the owner the rent payable by him to the owner.
What the Board thus recovers from the person cannot obviously be regarded as rent in so far as the Board is concerned.
For, the Board is not the landlord of the occupier and what it recovers from his is not something which was due to the Board as rent from him. 'Rent ' as commonly understood and as defined in Jowitt 's Dictionary of English Law ' is a sum of money payable periodically by a tenant to a landlord as compensation for occupation of a building or land belonging to the landlord.
It cannot thus include money payable by one person to another when they do not stand in the relationship of tenant and landlord.
It is the Dictionary meaning which has to be given to the word 'rent ' in section 259.
Giving it this meaning it would be clear that what is referred to in section 257(1) as rent was not intended to be included in that expression in section 259.
Apart from section 257 no other provision has come to our notice which can support the view of the High Court as to the interpretation of section 259.
It may be mentioned that before the year 1940 there was r. 42 in the Cantonment Land Administration Rules, 1937 which expressly authorised the Board to recover all arrears of rent and "other payments" under the Rules by resorting to section 259 of the Act.
But that rule was repealed in 1940.
It was represented to us by Mr. Gopal Singh that this was repealed because in view of the wide language of section 259 there was no need felt for the retention of the rule.
Whatever that may be.
the position ;,s, if I may repeat.
353 that if the word rent is given a restricted meaning as has been done by the High Court, that word would become purposeless.
On the other hand if the expression is interpreted in the way suggested here it will serve a purpose for which it was intended.
For these reasons I am of the view that the appeal should be allowed.
ORDER BY COURT In accordance with opinion of the majority the appeal is dismissed.

summary/full:
In 1954, the words "rent on land or buildings" were added to section 250 of the .
After the amendment, the appellant (Cantonment Board), applied under the section to the concerned Magistrate, for realisation of arrears of rent from the respondent, on the basis of a lease in his favour.
The Magistrate issued warrants for attachment of the movable property of the respondent.
The respondent went in revision to the Sessions Judge.
He made a reference to the High Court and the High Court set aside the Magistrate 's order.
In its appeal to the Supreme Court, the appellant contended that, upon a correct interpretation of the section, the Magistrate had the power to order the recovery of rent due to the appellant.
HELD: (Per Wanchoo and Sikri JJ.) ' The rent was not claimable by the appellant under the Act or the Rules but only under the lease in favour of the respondent.
Therefore, section 259(1), in so far as It refers to recovery of such rent by application to Magistrate, would not apply.
In view of the provisions of the Act, Cantonment Property Rules, 1925, and the Cantonment Land Administration Rules, 1937, a Cantonment Board has power, to manage the lands or buildings vested in it or entrusted to its management, to lease them out and to fix rents therefor.
But section 259 can be utilised for realisation of arrears of rent on land and buildings, only if such rent is recoverable by a Board or a Military Estates Officer under the Act or the Rules made thereunder.
The word "recoverable" means "claimable".
Section 257 read with section 2.56 is an example of the Board 's power to claim rent from the tenant of an owner.
There may be other such cases, and it is only in those cases, where the Act or the Rules, in terms, make the rent on land and buildings claimable by the Board, that the section will apply.
But where the liability arises purely on the basis of a lease between the Board and the tenant, nothing in the Act or the Rules, particularly after r. 42 which provided for such recovery had been repealed, makes such rent claimable by the Board under the Act or the Rules.
Since.
the repeal was in 1940 before the section was amended, it cannot be argued that the rule was repealed because of the amendment of the section.
[344 F H; 346 F H] The view taken, however, would not affect the right of the Board to recover by suit, under the general law, rent of its land and buildings given by it on lease.
[347 B] Per Mudholkar, J. (dissenting): The High Court was in error in setting aside the order of the Magistrate.
What the expression "recoverable by a Board or a Military Estates Officer under the Act or the Rules made thereunder," in section 259 means is, what the Act or the Rules permit the Board to recover, or what the Act or the Rules permit the Military Estates Officer to recover.
The words "recoverable by" and "under this Act of the Rules made thereunder." are meant to govern "a Board" or "a Military Estates Officer." Thus under the section the power to recover money is exercisable by such of these two authorities as performs the duty or exercises the power by reason of which the liability of another 342 to pay the tax, rent or any other money arises.
Powers are conferred upon a Board under the Act read with the Cantonment Land Ad ministration Rules, 1937.
to let out property vested in it or which is under its management.
Where, in exercise of those powers the Board has let out any land or buildings, it has the right as well as the duty to collect the rent from the tenant.
Therefore, where the liability to pay money arises against a person, by reason of something done by the Board or the Military Estates Officer, in exercise of a power or the performance of a duty under the Act, that liability can be enforced by the authority concerned, either by instituting a suit or by making an application to a Magistrate.
But if the word "rent" is confined to money due under some express provision of the Act or Rules, it will lead to the curious result, that, in respect of land or buildings under the management of the Board, neither remedy would be available though the claim for rent is ultimately traceable to those provisions of the Act and the Rules which empower the Board to let out the land or buildings upon the ground that it cannot be said to be claimable or recoverable under any express provision of the Act.
[350 C E; 351F; 351 G H] Further, if the meaning of the word "rent" is so restricted, that word itself would be rendered otiose, because, there is no provision whatsoever in the Act which expressly makes rent claimable or recoverable by either of the two authorities specified therein.
What the Board recovers under sections 256 and 257 cannot be regarded as rent, giving the word its dictionary meaning, for, the Board is not the landlord of the occupier, and what it recovers from him, is not something which was due to the Board as rent from him.
[352 E G].


judgement:
Appeal No. 532 of 1963.
Appeal by special leave from the Award dated February 9, 1962, of the Industrial Tribunal, Delhi in I.D. No. 294 of 1961.
Sukumar Ghose, for the appellant.
section V. Gupte, Solicitor General, section Murthy and B. P. Maheshwari, for the respondent.
The Judgment of the Court was delivered by Gajendragadkar, C. J.
The short question of law which arises for our decision in this appeal is whether the order passed by the Delhi Administration referring the dispute between the appellants, the workmen of M/s Dharampal Premchand, Sau ghandhi and the respondent, the employer, M/s Dharampal Premchand Saughandhi, Delhi was valid.
The order of reference has been passed by the Delhi Administration under sections 10(1)(d) and 12(5) of the (No. 14 of 1947) (hereinafter called the Act).
When the Industrial Tribunal, Delhi took up this matter for hearing, the respondent raised a preliminary objection that the reference was invalid inasmuch as the dispute referred to the Tribunal by the impugned order of reference is not an industrial dispute.
but is merely an individual dispute which cannot be the subject matter of a valid reference under section 10(1) of the Act.
This contention has been upheld by the Tribunal, with the result that the Tribunal has held that it has no jurisdiction to adjudicate upon the merits of the dispute referred to it.
It is against this order that the appellants have come to this Court by special leave.
On behalf of the appellants, Mr. Sukumar Ghose contends that the view taken by the Tribunal is not sound, and that raises the question as to whether the dispute referred to the Tribunal for its adjudication in the present case can be said to be an industrial dispute within the meaning of section 2(k) of the Act.
The facts which it is necessary to state for the purpose of dealing with this point are very few and they are not in dispute.
The respondent is a firm which carries on business as perfumers and tobacconists in Chandni Chowk, Delhi.
On the 28th July, 1961, the respondent passed the impugned order dismissing the services of its 18 employees.
On that date, the respondent had in its employment 45 employees.
It appears that on the 16th July, 396 1961, the 18 employees who were dismissed by the respondent had become members of the Mercantile Employees ' Association which is a registered Trade Union in Delhi.
On the 29th July, 1961, the said Association took up the cause of the dismissed employees and carried the dispute before the Conciliation Officer, Delhi.
The conciliation proceedings, however, failed, and at the instance of the Association the present reference was made on the 6th September, 1961.
It is in the light of these facts that we have to decide whether the dispute referred to the Tribunal for its adjudi cation is an industrial dispute within the meaning of section 2(k) of the Act or not.
Section 2(k) defines an "industrial dispute" as meaning any dispute or difference between employers and employees, or between employers and workmen, or between workmen and workmen, which is connected with the employment 'or non employment or the terms of employment or with the condition of labour, of any person.
This definition shows that before any dispute raised by any person can be said to be an industrial dispute, it must be shown that it is connected with the employment or non employment of that person.
This condition is satisfied in the present case, because the dispute is in relation to the dismissal of 18 workmen, and in that sense, it does relate either to their employment or non employment.
The question, however.
still remains whether it is a dispute between employers and workmen.
Literally construed, this definition may take within its sweep a dispute between a single workman and his employer, because the plural, in the context, will include the singular.
Besides, in the present case, the dispute is in fact between 18 workmen on the one hand, and their employer on the other, and that satisfies the requirement imposed by the fact that the word "workmen" in the context is used in the plural.
But the decisions of this Court have consistently taken the view that in 'order that dispute between a single employee and his employer should be validly referred under section 10 'of the Act, it is necessary that it should have been taken up by the Union to which the employee belongs or by a number of employees.
On this view, a dispute between an employer and a single employee cannot, by itself, be treated as an industrial dispute, unless it is sponsored or espoused by the Union of workmen or by a number of workmen.
In other words, if a workman is dismissed by his employer and the dismissed workman 's case is that his dismissal is wrongful, he can legitimately have the said dispute referred for adjudication before an Industrial Tribunal under section 10(1) of the Act, provided a claim for such a reference is supported either by the Union to which he belongs or by a number of workmen, vide Central Provinces Transport Services vs Raghunath Gopal Patwardhan(1) and The Newspapers Ltd. vs The State Industrial Tribunal, U.P. (2).
(1) ; (2) ; 397 This view is based on a consideration of the general policy underlying the provisions of the Act.
As is well known, the Act has been passed for the investigation and settlement of industrial disputes, and its material provisions have been enacted, because it was thought expedient to make provision for such investigation and settlement of disputes, keeping in mind the importance of the development of Trade Union Movement on proper lines in this country.
Having regard to this broad policy underlying the Act, this Court and indeed a majority of Industrial Tribunals are inclined to take the view that notwithstanding the width of the words used by the Act in defining an "industrial dispute", it would be expedient to require that a dispute raised by a dismissed employee cannot become an industrial dispute, unless it is supported either by his Union or, in the absence of a Union, by a number of workmen.
Unless such a limitation was introduced, claims for reference may be made frivolously and unreasonably by dismissed employees, and that would be undesirable.
Besides, in order to safeguard the interests of the working class in this country, it was thought that the development of Trade Union movement on healthy Trade Union lines was essential and that requires that disputes between employers and employees should be settled on a collective basis.
A complaint against a wrongful dismissal should, therefore, be the subject matter of reference, provided the workmen acting collectively take up the case of the dismissed employee and contend that the dismissal is unjustified or wrongful.
It is on these grounds that this Court has held that an individual dispute arising from an alleged wrongful dismissal of an employee can be validly referred under section 10 only if it is supported by the Union of the workmen to which the dismissed employee belongs or by a group of his co employees.
There is no dispute that the Mercantile Employees ' Association has taken up the dispute on behalf of the 18 dismissed employees.
In fact, as we have already indicated, the said Association took up this dispute before the Conciliation Officer and when the conciliation proceed ings failed, it successfully moved the Delhi Administration to make a reference under section 10(1) of the Act.
It was, however, urged before the Tribunal that besides the 18 dismissed employees, no other employee of the respondent is a member of the said Association, and so, it was contended that the said Association was not authorised to raise the dispute, and in the absence of proof of the fact that the dispute had been sponsored or espoused by the Union of the employees of the respondent, the reference should be held to be invalid.
This contention has been upheld by the Tribunal; and so, the question which we have to decide is whether the Tribunal was right in holding that the Mercantile Employees ' Association had no authority to raise and support the present dispute.
398 In support of its conclusion, the Tribunal has relied upon the decision of this Court in Bombay Union of Journalists and others vs The "Hindu", Bombay & Anr.(1).
In that case, the services of one Salivateeswaran, who claimed that he was a full time employee of the "Hindu", a daily newspaper published in Madras, were terminated and an industrial dispute was raised in respect of the said termination by the Bombay Union of Journalists.
The contention raised by the employer was that the reference was invalid inasmuch as the dispute referred for adjudication was an individual dispute and not an industrial dispute.
This contention was accepted by the Tribunal; and that brought the dispute before this Court.
In dealing with the effect of the decision pronounced by this Court in that case and particularly of certain observations made in the course of the judgment, it is necessary to bear in mind one finding of fact which had been recorded by the Tribunal and confirmed by this Court.
It appears that in that case, the appellants strongly relied upon a resolution passed on April 17, 1948, by which it was alleged that the Bombay Union of Journalists had taken up the dispute of Salivateeswaran against the "Hindu" and had decided to demand reliefs for the "retrenched Journalist".
Evidence was led to prove that such a resolution had been passed, but that evidence was discarded both by the Tribunal and this Court, and this Court definitely found that "the evidence tends to establish the plea raised by respondent No. 1 that the record of the alleged resolution was fabricated with a view to support the case of Salivateeswaran".
In other words, in point of fact, there was no reliable evidence to show that the Bombay Union of Journalists had taken up the case of the retrenched employee Salivateeswaran.
In view of this finding, it follows that the 'observations made by this Court in regard to the requirements of a valid reference under section 10(1) of the Act are in the nature of orbiter observations.
It does appear that in dealing with the point of law as to the requirements of a valid reference, this Court 'observed that "the dispute, in the present case, being prima facie an individual dispute, in order that it may become an industrial dispute, it had to be established that it had been taken up by the Union of employees of the "Hindu", Bombay, or by appreciable number of employees of the "Hindu", Bombay.
Similarly, it was also observed that the "principle that the persons who seek to support the cause of a workman must themselves be directly and substantially interested in the dispute, applied to the case before the Court"; and so, one of the tests which this Court applied was whether the persons who supported the cause, were employees of the same employer; if they were not, it was thought that they could not be regarded as interested in the dispute and as such, their support may not (1) ; 399 convert an individual dispute into an industrial dispute.
That is why the support lent to the cause of Salivateeswaran by the Bombay Union of Journalists was found to be insufficient to convert the cause into an industrial dispute.
These observations, no doubt, prima facie lend support to the view which the Tribunal has accepted.
It appears that the Bombay Union of Journalists had on its roll several working Journalists in other journals; but out of the three working journalists working with the "Hindu" at its Bombay office, two had become the members of the Bombay Union of Journalists, viz., Salivateeswaran and Venkateswaran.
Tiwari, the third working journalist working in the office of the "Hindu", Bombay, had not become a member of the said Union.
In the Office of the "Hindu", there were seven other workmen, but they were working on the administrative side.
In other words, out of the ten employees in the office of the " Hindu", seven were on the administrative side, and three on the journalism side; and out of these three, two were members of the Union.
It is in the light of these facts that this Court expressed the opinion that the Bombay Union of Journalists was not competent to raise the dispute, and even if it had raised it, the dispute could not have become an industrial dispute.
In our opinion, the observations on which the Tribunal has relied in support of its conclusion in the present case, should not be read as laying down any hard and fast rule in the matter.
Take, for instance, the case of an employer who employs 20 workmen, and assume that these workmen have not formed any Union.
If the employer illegally dismisses all the workmen employed by him, it cannot be suggested that the dispute about the dismissal of these employees would not become an industrial dispute because there is no Union to support them and the dismissed employees themselves cannot convert their individual dispute into an industrial dispute.
In the present case, out of 45 employees 18 have been dismissed, and there is no evidence to show that these employees have a Union of their own.
In such a case, it would be difficult to hold that though the number of employees dismissed is 18, they cannot raise a dispute by themselves in a formal manner.
Considerations which would be relevant in dealing with a dispute relating to an individual employee 's dismissal, would not be material in dealing with a case where a large number of employees have been dismissed on the same day.
It is not disputed that a union of workmen may validly raise a dispute as to dismissal even though it may be a union of the minority of the workmen employed in any establishment.
The majority union, of course, can raise a dispute, and if a reference is made under section 10(1) of the Act at its instance, the reference, is valid.
Similarly, if there is no union of workmen in any establishment, a group of employees can raise the dispute and the dispute then becomes an industrial dispute, though it may 400 relate to the dismissal of an individual employee.
This position is not disputed.
If that is so, it is difficult, we think, to apply or extend the observations made in the case of the Bombay Union of Journalists(1) to the present case.
In the present case, we are dealing with a reference made by the Delhi Administration in relation to the appellants ' contention that the dismissal of 18 employees is invalid, and not with a case of the dismissal of a single employee.
Therefore, we do not think that the Tribunal was right in relying upon the decision in the case of the Bombay Union of Journalists(1) in support of its conclusion that the present reference was invalid.
It is well known that in dealing with industrial disputes, industrial adjudication is generally reluctant to lay down any hard and fast rule or adopt any test of general or universal application.
The approach of industrial adjudication in dealing with industrial disputes has necessarily to be pragmatic, and the tests which it applies and the considerations on which it relies would vary from case to case and would not admit of any rigid or inflexible formula.
There is no doubt that the limitations introduced by the decisions of this Court in interpreting the effect of the definition prescribed by section 2(k) of the Act were based 'on such pragmatic considerations.
It may also be conceded that if the dismissal of an individual employee working in an establishment in Delhi is taken up by the union of workmen in a place away from Delhi, that would clearly not make the dispute an industrial dispute.
Section 36 of the Act which deals with the representation of parties, incidently suggests that the union which can raise an individual dispute as to a dismissal validly, should be a union of the same industry.
Generally, it is the union of workmen working in the same establishment which has passed the impugned order of dismissal.
But in a given case, it is conceivable that the workmen of an establishment have no union of their own, and some 'or all of them join the union of another establishment belonging to the same industry.
In such a case, if the said union takes up the cause of the workmen working in an establishment which has no union of its own, it would be unreasonable to hold that the dispute does not become an industrial dispute because the union which has sponsored it is not the union exclusively of the workmen working in the establishment concerned.
In every case where industrial adjudication has to decide whether a reference in regard to the dismissal of an industrial employee is validly made or not, it would always be necessary to enquire whether the union which has sponsored the case can fairly claim a representative character in such a way that its support to the cause would make the dispute an industrial dispute.
"Industry" has been defined by section 2(j) of the Act and it seems to us that in some cases, the union of workmen working in one industry may be competent to raise a dispute about the wrongful dismissal of an employee engaged in an establishment belonging to the same industry where workmen (1) ; , 401 in such an establishment have no union of their own, and an appreciable number of such workmen had joined such other union before their dismissal.
In fact, the object of trade union movement is to encourage the formation of larger and bigger unions on healthy and proper trade union lines, and this object would be frustrated if industrial adjudication were to adopt the rigid rule that before any dispute about wrongful dismissal can be validly referred under section 10(1) of the Act, it should receive the support of the union consisting exclusively of the workmen working in the estab lishment concerned.
Besides, there is another way in which this question can be considered.
If 18 workmen are dismissed by an order passed on the same day, it would be unreasonable to hold that they themselves do not form a group of workmen which would be justified in supporting the cause of one another.
In dealing with this question, we ought not to forget the basic theory on which limitation has been introduced by this Court on the denotation of the words "industrial dispute" as defined by section 2(k) of the Act.
Therefore, we are satisfied that the Tribunal was in error in rejecting the reference on the preliminary ground that the dispute referred to it was an individual dispute and not an industrial dispute within the meaning of section 2(k).
The result is, the appeal is allowed, the finding of the Tribunal on the preliminary issue is reversed, and the matter is sent back to the Tribunal for disposal in accordance with law.
There would be no order as to costs.
Appeal allowed.

dataset_name: IN-Abs

summary/full:
Out of 45 employees of the respondent, 18 had become members of a Trade Union.
Later, these 18 employees were dismissed by an order passed on the same day.
The Union took up the cause and ultimately the dispute was referred to the Tribunal, where the respondent raised the preliminary objection that the reference was invalid inasmuch is the dispute referred to the Tribunal was not an industrial dispute but was merely an individual dispute, and besides these dismissed employees no other employees of the respon dent was a member of the Union, and so the Union could not raise the dispute.
This was upheld by the Tribunal.
In appeal by special leave; HELD:The appeal must be allowed.
The definition of "industrial dispute" in section 2(k) shows that before any dispute raised by any person can be said to be an industrial dispute, it must be shown that it is connected with the employment or non employment of that person.
This condition is satisfied in the present case.
[396 D] Having regard to the broad policy underlying the Act, this Court and indeed a majority of Industrial Tribunals are inclined to take the view that notwithstanding the width of the words used by the Act in defining an "industrial dispute" it would be expedient to require that a dispute raised by a dismissed employee cannot become an industrial dispute, unless it is supported either by his Union or, in the absence of a Union by a number of workmen.
[397 B C] Considerations which would be relevant in dealing with a dispute relating to an individual employee 's dismissal, would not be Material in dealing with a case where a large number of employees have been dismissed on the same day.
[399 G H] A Union of workmen may validly raise a dispute as to dismissal even though it may be a union of minority of the workmen employed in any establishment.
Similarly if there is no union of workmen in any establishment, a group of employees can raise the dispute and the dispute then becomes an industrial dispute, though it may relate to the dismissal of an individual employee.
[399 H] In a given case it is conceivable that the workmen of an establishment have no union of their own and some or all of them join the union of another establishment belonging to the same industry.
In such a case if the said union take up the cause of the workmen working in an establishment which has no union of its own, it would be unreasonable to hold that the dispute does not become an industrial dispute because the Union which has sponsored it is not the union exclusively of the workmen working in the establishment concerned.
In every case where industrial adjudication has to decide 395 whether a reference in regard to the dismissal of an industrial employee is validly made or not it would be necessary to inquire whether the Union which has sponsored the case can fairly claim a representative character, in such a way that its support to the case would make the dispute an industrial dispute.
[400 F H] Besides, 18 workmen, dismissed by an order passed on the same day, themselves form a group of workmen which would be justified in supporting the cause of one another.
[401 C] Central Provinces Transport Service vs Raghunath Gopal Patwardhan, ; and The Newspapers Ltd. vs The State Industrial Tribunal, U.P., ; , relied on.
Bombay Union of Journalists vs The Hindu, Bombay, , explained and distinguished.