judgement:
JURISDICTION: Civil Appeal No. 3412 13 of 1986.
From the Judgment and Order dated 19.4.85 of the Madhya Pradesh High Court in Misc.
Petition Nos. 259 and 503 of 1982.
157 Shanti Bhushan (N.P.), B. Dutta, S.K. Jain, Pradeep Aggarwal and Mrs. Pratibha Jain for the Appellants.
M.K. Ramamurthy, R.K. Garg, C.K. Ratnaparkhi, Arun Madan, S.K. Agnihotri and S.V. Deshpande for the Respond ents.
Respondent No. 15 In person.
The Judgment of the Court was delivered by OJHA, J.
These two civil appeals by special leave have been preferred against the common judgment of, the Madhya Pradesh High Court rendered in two writ petitions being Miscellaneous Petition No. 259 of 1982 and Miscellaneous Petition No 503 of 1982.
Certain persons after being select ed by the Public Service Commission were appointed as Sales tax Inspectors in the State of Madhya Pradesh.
They shall hereinafter for the sake of convenience be referred to as existing Sales tax Inspectors.
In another Department of the Government of Madhya Pradesh, there were certain persons who were working as Block Level Extension Officers.
The Government of Madhya Pradesh reorganised Blocks all over the State as a result whereof 50% of the posts of Block Level Extension Officers were rendered surplus.
A policy decision was taken by the State Government to absorb the surplus employees in equivalent post in other Government Depart ments.
A meeting was held on 30th September 1965 in the office room of the Secretary Planning and Development De partment for settling principles and procedure for absorp tion of such surplus personnel which was attended by the Secretaries of the various Department of the Government, Director of Panchayat and Social Welfare, Director of Indus tries and Director of Public Instruction.
In that meeting general principles and procedure for absorbing the surplus personnel were settled and it was inter alia agreed that; "(a) the surplus staff should be absorbed on equivalent posts and carrying the same pay scale as far as possible.
But if they are absorbed on posts carrying slightly lower pay scale, their present pay scale should be protected; (b) they should be treated as having been transferred from one post to another so that there may be no break in their service.
" A Committee consisting of the Commissioner of Sales Tax, the Addi 158 tional Commissioner of Sales Tax and the Deputy Commissioner of Sales Tax, Headquarters, held an interview of such sur plus Block Level Extension Officers who were to be absorbed as Sales tax Inspectors and as a result of that interview they were appointed to the post of Sales tax Inspectors.
These appointments seem to have been made on various dates between 13th February, 1967 and 28th September, 1970.
The Block Level Extension Officers who were so absorbed as Sales tax Inspectors shall hereinafter be referred to as the absorbed sales tax Inspectors.
At this place it is necessary to refer to certain orders having a bearing on the matter of absorption as aforesaid.
The first such order in the se quence which deserves to be noticed is a Memo dated 29th March, 1967 issued in the name of Governor of Madhya Pra desh.
It provided: "The Ex Block Development Officers and the Ex Block Level Extension Officers have been exempted by the Government from the competitive examinations to be conducted by the Public Service Commission for the purpose of absorption as Sales tax Inspectors.
The selection of these personnel to the said post shall be done by the departmental selection committee.
" The other order which requires mention is a memorandum dated 22nd may, 1967 issued by the Government of Madhya Pradesh General Administration Department inter alia to all Departments of Government.
In contained certain decisions in respect of the surplus class III (Executive) ministerial and Class IV employees of the development blocks on their ab sorption in other Departments of Government.
These decisions inter alia were about fixation of pay and fixation of sen iority.
With regard to fixation of seniority it was provided that seniority should be fixed with regard to the completed years of service counted for fixation of initial pay and the number of increments allowed therein.
This Memorandum was also issued "By order and in the name of the Governor of Madhya Pradesh".
With reference to this Memorandum it was, by a subsequent Memorandum dated 8th November, 1967, provid ed that the State Government had further decided that the facilities granted to surplus personnel to the Development Blocks vide G.A.D. Memo under reference may also be extended to such employees absorbed in Class III executive posts.
this place it may be mentioned that the post of Sales tax Inspector is a Class III (Executive) post.
Another Order dated 19th July 1973 was issued by the Madhya Pradesh Gov ernment to all the Heads of the Departments regarding facil ities to the extra officials on being 159 absorbed in other Departments.
The provision with regard to seniority was the same as in the Memorandum dated 22nd May, 1967.
As is apparent from the seniority list dated 6th Janu ary, 1981 showing the position of the Sales tax Inspectors as on 1.4.80, the existing Sales tax Inspectors were con firmed on various dates between 1st November, 1956 and 5th October, 1968.
With regard to fixation of seniority of the absorbed Sales tax Inspectors on decision seems to have been taken till 15th February 1980 when an Order of that date was issued from the office of Sales tax Commissioner of Madhya Pradesh which provided that the Sales tax Inspectors men tioned therein who were absorbed between 1967 and 1970 were made permanent to that post according to the directions of the Government with effect from 31st March, 1967 (presumed date).
The seniority list referred to above indicates that the names of the absorbed Sales tax Inspectors are to be found at serial Nos.
21 to 104 having, 31st March, 1967 as the date of confirmation of all of them.
The existing Sales tax Inspector Soni Badri Prasad shown at serial No. 20 was confirmed on 22nd May; 1966 whereas the existing Sales tax Inspector Cangrade Dashreth Lal shown at serial No. 105 was confirmed on 1st April, 1967.
The existing Sales tax Inspectors as well as the ab sorbed Salestax Inspectors both felt aggrieved by the con firmation order of the absorbed Sales tax Inspectors with effect from 31st March, 1967, the seniority list aforesaid prepared on its basis as well as a subsequent seniority list dated 15th May, 1982.
The two writ petitions referred to above were filed in the High Court, one by the existing Sales tax Inspectors and the other by the absorbed Sales tax Inspectors.
Both of them were decided by a common judgment whereby the order dated 15th February, 1980 referred to above was quashed and seniority was directed to be fixed in accordance with the Recruitment Rules and general conditions of Service Rules.
It is this judgment which is the subject matter of these two civil appeals, both having been filed by some of the absorbed Sales tax Inspectors.
The contention of the existing Sales tax Inspectors is that the absorbed Sales tax Inspectors could not be con firmed on 15th February ', 1980 retrospectively with effect from a presumed date, namely, 31st March, 1967.
According to them the determination of seniority, taking confirmation as the basis, is erroneous as they were entitled to have the entire period between their actual appointment and confirma tion taken into consideration; whereas the grievance of 160 the absorbed Sales tax Inspectors is that since they had been working in another department of the State Government as Block Level Extension Officers from various dates between 13th November, 1956 and the actual date of their absorption, they were entitled to have the entire period of their serv ice as Block Level Extension Officers taken into considera tion and the fixation of their seniority on the basis of their having been confirmed from the presumed date of 31st March, 1967 is erroneous.
It was also sought to be urged before us on behalf of the existing Sales tax Inspectors that the appointment of the absorbed Sales tax Inspectors as Sales tax Inspectors was illegal having been made not in conformity with the relevant rules and without the recommendation of the Public Service Commission.
For the absorbed Sales tax Inspectors on the other hand it was urged that none of the rules relied on by the existing Sales tax Inspectors was applicable to the absorption as Salestax Inspectors of the surplus Block Level Extension Officers and that it was the executive instruc tions issued in this behalf particularly dated 29th March, 1967, 22nd May, 1967, 8th November, 1967 and 19th July, 1973 referred to above which applied to their absorption.
Having heard learned counsel for the parties and M.C. Katarpanch, respondent No. 15 in C.A. No. 3412 of 1986, we are, on the facts of the instant case, so far as this sub mission is concerned, of the opinion that the validity of the absorption as Sales tax Inspectors of the surplus Block Level Extension Officers does not deserve to be permitted to be challenged in these appeals and that we have to proceed on the basis that their appointment by absorption as Sales tax Inspectors was valid.
It is true, as has been pointed out on behalf of the existing Sales tax Inspectors, that the surplus Block Level Extension Officers when called for interview for the purpose of being considered suitable for absorption were required to bear themselves the travelling expenses and that fresh letters of appointment were issued to them after the interview.
In our opinion, however, these circumstances are of very little significance for discerning the true nature of their absorption.
In this connection it is of significance that no material has been brought to our notice to indicate that the services of the surplus Block Level Extension Officers had ever been factually terminated.
Again, notwithstanding the fact that the nature of their appointment as Salestax Inspectors after interview was temporary, they were allowed to uninterruptedly continue to hold the post of Sales tax Inspector and were subsequently not only confirmed on that post but were also given ad hoc promotions as Assistant Sales tax Officers.
Another circums 161 tance which is of significance in this behalf is that no relief for the quashing of their appointments was sought for by the existing Sales tax Inspectors in the writ petition flied by them before the High Court nor was, as is apparent from the judgment appealed against, any such relief pressed before the High Court.
In fact, even the fixation of their pay as Sales tax Inspectors consequent upon their absorp tion, which was done in accordance with the executive in structions referred to above, does not seem to have been ever challenged.
On the other hand it is specifically stated in the judgment appealed against: "It is not in dispute that the respondents 4 to 88 were absorbed in the Sales tax Department between 13.2 1967 to 28.9.1970 although the respondent State adds that they were in Government service in other governmental departments and some of them right from the year 1948 long before the petitioners were appoint ed as Sales tax Inspectors.
" It is for these reasons that we are of the opinion that now it is too late a stage to chal lenge the validity of appointment of the absorbed Sales tax Inspectors on that post.
Now coming to the question of seniority, the term "absorbed" in Service Jurisprudence with reference to a post in the very nature of things implies that an employee who has not been holding a particular post in his own right by virtue of either recruitment or promotion to that post but is holding a different post in a different department is brought to that post either on deputation or by transfer and is subsequently absorbed in that post whereafter he becomes a holder of that post in his own right and loses his lien on his parent post.
No one asserts that the instant one was a case of the absorbed Sales tax Inspectors being initially sent on deputation from the post of Block Level Extention Officer to the post of Sales tax Inspector and being subse quently absorbed in that post.
Consequently, when as pointed out by the High Court, it was not disputed that the surplus Block Extension Officers had been absorbed in the post of Sales tax Inspectors it is obvious that it was a case of absorption by transfer.
In this connection it would be useful to recapitulate that the minutes of the meeting referred to above held on 30th September, 1965 laying down the principles of procedure for absorbing the surplus per sonnel specifically stated that the surplus staff which was to be "absorbed" should be treated as having been trans ferred from one post to another so that there may be no break in their service.
" The question as to whether the fixation of seniority by the Government was valid or not has to be considered in the aforesaid background.
The crux of the problem, therefore, is as to what princi 162 pie should govern the fixation of inter se seniority of the Sales tax Inspectors who were directly recruited as such, namely, the existing Sales tax Inspectors and those who became holders of that post by absorption on transfer from one Government department to another, namely, the absorbed Sales tax Inspectors.
The competing claims are, as already indicated above, that whereas the existing Sales tax Inspec tors contend that the date of confirmation alone was not relevant and that even the period between the dates of their actual appointment and confirmation should be counted for fixing their seniority, the contention of the absorbed Sales tax Inspectors is that the entire period of their service as Block Level Extension Officers should also be taken into consideration while fixing their seniority.
In so far as the legal position with regard to fixation of seniority is concerned it may be pointed out that a Constitution Bench of this Court in Direct Recruit Class 11 Engineering Officers ' Association vs State of Maharashtra and Others, ; after a conspectus of various earlier decisions has inter alia held: "(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirma tion.
The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as stop gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointed continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of offici ating service will be counted.
" On its basic there is obviously substance in the asser tion of the existing Sales tax Inspectors that the period from the respective dates of their appointments to those of their confirmation deserve to be counted while fixing their seniority.
As regards the absorbed Sales tax Inspectors, even if their initial appointment as Sales tax Inspector is, for the sake of argument, taken to be irregular as was sought to be urged before us on behalf of the existing Sales tax Inspectors, the said appointment not being only ad hoc and they having continued in the 163 pOSt uninterruptedly till the regularisation of their serv ice, which event even if may be treated to have taken place on 15th February, 1980 when they were granted retrospective confirmation with effect from 31st March, 1967 they are entitled to have the entire period of their service as Sales tax Inspector counted inasmuch as their confirmation at any rate with effect from 15th February, 1980 cannot be said to be in violation of any rule.
The question which , therefore, remains to be considered is about the period during which they worked as Block Level Extension Officers before they were absorbed as Sales tax Inspectors.
Is the entire period to be taken into consideration or only a part of it and if so, what part or is the said period to be ignored in its entirety, are questions which call for an answer.
In R.S. Makashi vs I.M. Menon, ; the question of seniority arose among the members of the staff who, for maintaining a new department, had been drawn from four different sources.
It was pointed out that in such a situation it was inevitable that some reasonable principles had to be formulated for the determination of the inter se seniority of the personnel appointed to work in the differ ent categories of posts in the new organisation.
Rules for fixation of seniority were framed by the Government, validi ty of some of which was challenged on the ground of being violative of Articles 14 and 16 of the Constitution.
Rule 4(a) was one such rule.
A learned Single Judge of the High Court struck down that rule.
While reversing the judgment of the High Court it was held: "Almost the entire reasoning of the learned Single Judge is based on an assumption that there is an invariable "normal rule" that seniority should be determined only on the basis of the respective dates of appointment to the post and that any departure from the said rule will be prima facie unrea sonable and illegal.
The said assumption is devoid of any legal sanction.
We are unable to recognise the existence of any such rigid or inflexible rule.
It is open to the rule making authority to take a note of the relevant circum stances obtaining in relation to each department and deter mine with objectivity and fairness what rules should govern the inter se seniority and ranking of the personnel working in the concerned departments and the courts will only insist that the rules so formulated should be reasonable, just and equitable.
Judged by the said test of reasonableness and fairness, the action taken by the Government in equating the clerical personnel which had rendered two years ' regular 164 service in other departments with the temporary Supply Inspectors of the CFD and in directing as per impugned Rule 4(a) that their inter se seniority shall be determined with reference to the length of service calculated on the basis of the said equation cannot be said to be in any way dis criminatory or illegal.
We are unable to accept as correct the view expressed by the learned Single Judge of the High Court that "while fixing the seniority in the higher post, it is not open to take into consideration any service ren dered in the lower post and that by itself spells out dis crimination." (Emphasis supplied).
Relying on the aforesaid decision it was held in Wing Commander J. Kumar vs Union of India and Others, ; "Equally untenable is the further plea advanced by the appellant that since the R & D is an integrated cadre, there cannot be any further classification of the officers com prised therein on the basis of the length of service put in by them in their respective parent services prior to their permanent statement in the R & D.
As pointed out by this Court in the decision in R.S. Makashi vs I.M. Menon, (supra), it is a just and wholesome principle commonly applied in such situations where persons from different sources are drafted to serve in a new service that their pre existing length of service in the parent department should be respected and preserved by taking the same into account in determining their ranking in the new service cadre.
Such a provision does not involve any discrimination violative of Article 16 of the Constitution." In K. Madhavan and Anr.
vs Union of India and Ors.
, it was held that it will be against all rules of service jurisprudence if, when a Government servant holding a post is transferred to the same or an equivalent post in another Government Department, the period of his service in the post before transfer is not taken into consideration in computing his seniority in the post to which he is transferred.
The transfer cannot wipe out his length of service in the post from which he has been trans ferred.
It is true that R.S. Makashi and Others as well as Wing Commander J. Kumar, (supra) were cases where new service was created in our opinion, on that ground alone the principle enunciated 165 therein cannot be treated as to be confined only to a case where new service was created.
The observations made therein are obviously based on equitable principles and it is those principles which were applied in the case of K. Madhavan (supra).
Reliance was placed by learned counsel for the absorbed Salestax Inspectors on the decision of this Court in the case of K.C. Vasudeva and Others vs Union of India and Others, where it was held that fixa tion of seniority between existing employees and those taken over from an autonomous body after its dissolution must be based not on mere compassion but on rational criteria having full consideration for rights of other parties affected and having nexus with efficiency in administration.
Government must apply its mind and give reasons for its exercise of power to give relaxation to one class of employees.
In our opinion the said decision in clearly distinguishable.
First ly, that was a case where employees not of another Govern ment Department but of an autonomous body were brought in a Government Department and in the matter of determination of seniority the period during which they had worked in the autonomous body was taken into account.
Emphasis was placed in that case on this circumstance when it was pointed out that such employees were new entrants into Government serv ice and even so they were given credit for their former service in the autonomous body.
Secondly, unlike the instant case in that case credit for the entire period of Service in the autonomous body seems to have been given.
What is, however, noteworthy is that it was specifically stated in paragraph 5 the report of that case that "it is perfectly within the power of the Government to have a rationalisation of the entire situation and if it thinks fit even to give weightage or credit for service" in the autonomous body.
The principle of giving weightage was approved by this Court in an earlier decision also in the case of S.G. Jai Singhani vs Union of India; , and is a well recognised principle in the sphere of determination of seniority.
In view of the legal position enumerated above, it is true that the claim of the existing Sales tax Inspectors that the period between the dates of their appointment and confirmation should be counted seems to be justified but it is equally true that the claim of the absorbed Sales tax Inspectors that the period during which they worked in their parent Department should also be taken into account, does not obviously appear to be off the mark.
If the period between the dates or ' appointment and confirmation of the existing Sales tax Inspectors was counted for fixing their seniority but the period during which the 166 absorbed Sales tax Inspectors worked in their parent Depart ment was ignored, the former would have obviously been placed on a more advantageous position but only to the prejudice of the latter as it would have amounted to sacri ficing their interest.
If, on the other hand, the periods referred to above in case of both the sets of Sales tax Inspectors was taken into account, it would have resulted in granting benefit of the absorbed Sales tax Inspectors at the cost of the existing ones and presumably including those who had already been promoted as Assistant Sales tax Officers, even prior to 22nd May 1967, inasmuch as the period during which they had served in their parent Department was much longer than the period of officiation of the existing Sales tax Inspectors.
This was the situation with which the State Government was faced and it was its duty to evolve some policy or equitable formula which did justice, as far as possible, to the competing claims of both the sets of Sales tax Inspectors.
It was apparently in search of such a formula that the State Government appears to have given retrospective confirmation to the absorbed Sales tax Inspec tors from a presumed date and determined the seniority on the basis of the dates of confirmation.
This section can be justified even on the well recognised principle referred to above of giving weightage in the matter of determination of seniority.
The principle formulated in the case of R.S. Makashi (supra) with reference to a rule of seniority namely that "the Courts will only insist that the rules so formu lated should be reasonable, just and equitable" with the result that if they meet this requirement the Court will not interfere, would in our opinion apply even to a case of executive action of determining seniority if the above test is satisfied.
It is also relevant to point out that no statutory rule has been brought to our notice which may run counter to the decision mentioned above taken by the govern ment.
The two rules to which our attention has been invited are (i) Madhya Pradesh Civil Services (General Conditions of Service) Rules 1961 and (ii) Madhya Pradesh Sales taX Subor dinate Class III Executive Service Recruitment Rules, 1966.
In so far as the 1966 Rules are concerned, they do not contain any provision about seniority.
The 1961 Rules, no doubt, deal with seniority in Rule 12 but having gone through the said Rule we are of the opinion that the case of the absorbed Sales tax Inspectors does not fail under any of the categories enumerated therein.
At this place, we may mention that nothing substantial has been brought to our notice by either party on ' the basis of which it could safely be said that on the peculiar facts and circumstances of this case already referred to above, the decision of the State Government did not satisfy the above said test and was either arbitrary or discriminatory.
167 In this view of the matter.
we are of the opinion that it was not a fit case for interference by the High Court in exercise to its jurisdiction under Article 226 of the Con stitution of India with the decision of the State Govern ment.
In the result, these civil appeals are allowed, the common judgment of the High Court in the two writ petitions referred to above set aside and both the said writ petitions are dismissed.
In the circumstances of the case, however, the parties shall bear their costs in this Court as well as in the High Court.
P.S.S. Appeals allowed.

summary/full:
A group of Block Level Extension Officers rendered surplus in their parent department were appointed as Sales Tax Inspectors, Class III (Executive) posts, in the respond ent State between 13th February, 1967 and 28th September, 1970.
By an order dated 29th March, 1967, they were exempted from the requirement of going through competitive examina tion for the purpose of absorption.
By memorandum dated 22nd May, 1967 it was provided that seniority of surplus Class III ministerial employees of the development blocks on their absorption in other departments shall be determined with regard to the completed years of service counted for fixa tion of initial pay.
By a subsequent memorandum dated 8th November, 1967 this facility was also extended to employees absorbed in Class III executive posts.
Another order issued on 19th July, 1973 on the subject maintained the provision with regard to seniority as contained in the memorandum dated 22nd May, 1967.
Subsequently these Sales Tax Inspec tors were made permanent to that post retrospectively with effect from 31st March, 1967 by an order dated 15th Febru ary, 1980.
In the combined seniority list prepared accord ingly some of the directly recruited Sales Tax Inspectors were shown junior to the absorbed Sales Tax Inspectors.
On cross petitions being filed by the existing Sales Tax Inspectors and the absorbed Sales Tax Inspectors assailing the seniority list the High Court quashed the order dated 15th February, 1980 and seniority was directed to be fixed in accordance with the Recruitment Rules and general condi tions of Service Rules.
In these appeals by special leave, it was contended for the existing Inspectors that the absorbed Inspectors could not be confirmed on 15th February, 1980 retrospectively with effect from a presumed date, namely, 31st March, 1967; that the determination of seniority taking 155 confirmation as the basis was erroneous as they were enti tled to have the entire period between their actual appoint ment and confirmation taken into consideration, and that the appointment of the absorbed Inspectors was illegal having been made not in conformity with the relevant rules and without the recommendations of the Public Service Commis sion.
For the absorbed Inspectors it was contended that since they had been working in another department of the State Government from various dates between 13th November, 1956 and the actual date of their absorption they were entitled to have the entire period of their service in that department taken into consideration and the fixation of their seniority on the basis of their having been confirmed from the presumed date of 31st March, 1967 was erroneous, that none of the rules relied on by the existing 'Inspectors was applicable to them, and that it was the executive in structions issued in this behalf particularly dated 29th March, 1967, 22nd May, 1967, 8th November, 1967 which ap plied to their absorption.
Allowing the appeals, the Court, HELD: 1.
The order of the State Government dated 15th February, 1980 giving retrospective confirmation to the absorbed Sales tax Inspectors from a presumed date and determination of inter se seniority on the basis of the dates of confirmation was valid.
[159H] 2.1 Once an incumbent is appointed to a post according to rule, his seniority shall be counted from the date of his appointment and not according to the date of his confirma tion.
His transfer to the same or an equivalent post in another Government department cannot wipe out his pre exist ing length of service in the parent department.
[162D; 164G] Direct Recruit Class II Engineering Officers ' Associa tion vs State of Maharashtra & Ors., ; ; Wing Commander J. Kurnar vs Union of India & Ors., ; and K. Madhavan & Anr.
vs Union of India & Ors.
, , referred to.
2.2 It is, however, perfectly within the power of the Government to have a rationalisation of the entire situation and determine with objectivity and fairness what rules should govern the inter se seniority and ranking of the personnel working in the concerned department.
The Courts will only insist that the rules so formulated should be reasonable, just and equitable.
[165E; 166E] R.S. Makashi vs I.M. Menon, ; ; K.C. Vasudeva 156 S.G. Jai Singhghani vs Union of India, ; , referred to. 2.3 In the instant case, if the period between the dates of appointment and confirmation of the existing Inspectors was counted for fixing their seniority but the period during which absorbed Inspectors worked in their parent department was ignored, the former would have obviously been placed on a more advantageous position but only to the prejudice of the latter as it would have amounted to sacrificing their interest.
If, on the other hand, the periods of continuous service of both the sets of Inspectors was taken into ac count it would have resulted in granting benefit to the absorbed Inspectors at the cost of existing ones and presum ably including those who had already been promoted as As sistant Sales Tax Officers, even prior to 22nd May, 1967, inasmuch as the period during which they had served in their parent department was much longer than the period of offici ation of existing Inspectors.
This was the situation with which the State Government was faced and it was its duty to evolve some policy or equitable formula which did justice, as far as possible, to the competing claims of both the sets of officers.
The decision taken by the Government in the peculiar facts and circumstances of the case could not be said to be either arbitrary or discriminatory.
No statutory rule has been brought to Court 's notice which could run counter to it.
[165H; 166A D] 3.
The services of the absorbed Inspectors have not been shown to have ever been factually terminated in their parent department.
Again, though the nature of appointment of these officers in the Sales Tax Department was temporary they were allowed to uninterruptedly continue to hold the said post and were subsequently not only confirmed on that post but were also given ad hoc promotion as Assistant Sales Tax Officers.
Furthermore, no relief for the quashing of their appointment was sought for by the direct recruits before the High Court nor was any such relief pressed there.
In fact, even the fixation of their pay as Inspectors consequent upon their absorption, which was done in accordance with the executive instructions does not seem to have been ever challenged.
The validity of their appointment in the Sales Tax Department, therefore, could not be assailed.
[160G;


judgement:
ivil Appeal No. 1811 of 1975.
From the Judgment and Order dated 18.4.1975 of the Allahabad High Court in Second Appeal No. 734 of 1975.
R.K. Mehta, Ms. Mona Mehta and S.K. Bagga (NP) for the Appellant.
P.K. Bajaj and Mrs. Rani Chhabra (NP) for the Respondents.
The Judgment of the Court was delivered by S.C. AGRAWAL, J.
This appeal by special leave arises from the judgment of the High Court of Judicature at Allaha bad dated April 18, 1975, dismissing the Second Appeal filed by the appellant.
Teja, the common ancestor, had five sons: Nanha, Mulle, Manna, Chhota and Ram Sahai.
All of them have died.
Appel lant Sita Ram is the son of Nanha.
Mulle had a son Nokhey who died in 1953 without any issue.
Respondent No. 2 Soney Lal is the son of Manna.
Kailasho Devi, respondent No. 3 is the widow of Ram Sahai.
Chhota Bhondey respondent No. 1, claims to be the son of Chhota which is disputed by the appellant.
The dispute in the appeal relates to sirdari holdings in Khata No. 72 and 73 in village Sambhalpur Sheoli in the State of Uttar Pradesh.
Lands in Khata No. 72 were originally entered in the names of Nanha, Manna and Ram Sahai in the revenue records and on their deaths the names of the appellant and respondents Nos. 2 and 3 were entered.
Respondent No. 3 sold her shares in these lands.
The lands in Khata No. 73 were entered in the name of Nanha alone and on his death the same were entered in the name of the appel lant.
Consolidation proceedings under the provisions of U.P. Consolidation of Holdings Act, 1953 (U.P. Act No. 5 of 1954) hereinafter referred to as 'the Act ' commenced in Village Sambhalpur Sheoli in the year 1969.
Respondent No. 1 filed objections to the entries and claimed one fourth share in the holdings in both the Khatas on the basis that he is the son of Chhota and that the said lands belonged to the joint Hindu family consisting of the sons of Tej Ram.
Respondents Nos. 2 and 3 filed objections claiming shares in the lands in Khata No. 73 on the ground that the said holding was jointly 187 acquired by Nanha and his brothers, Manna and Ram Sahai, and the name of Nanha was recorded in a representative charac ter.
The appellant contested the said claims and claimed that lands in Khata No. 73 were acquired by Nanha in his individual capacity and not on behalf of his family.
The appellant further claimed that respondent No. 1 could claim no interest in the holdings as he is not a member of the family.
The case of the appellant was that respondent No. 1 is not the son of Chhota but is the son of one Heera who was a resident of a different village.
The objections were considered by the Consolidation Officer, who, by order dated August 31, 1970, held that respondent No. 1 is the son of Heera alias Chhota.
He gave half share to the appellant and one fourth share each to respondents Nos. 1 and 2 in all the plots of the Khata No. 73 except plots Nos. 140, 141, 142/2, 142/3 and 143/3 which were given to the appellant exclusive ly.
The appellant as well as respondents Nos. 2 and 3 filed appeals against the said order of the Consolidation Officer.
The Assistant Settlement Officer (Consolidation), by Order dated February 8, 1971, allowed the appeal of the appellant and directed that Khata No. 73 will be continued in the name of the appellant alone inasmuch as the lands of the said Khata were acquired by Nanha between 1927 and 193 1 before the birth of respondent No. 1 and the said land was not the ancestral acquisition nor Nanha had acquired it in a repre sentative capacity.
The Assistant Settlement Officer, howev er, agreed with the findings of the Consolidation Officer that respondent No. 1 is the son of Heera alias Chhota and belongs to the family to which the appellant and respondent No. 2 belong.
The respondents went in revision against the said order of the Assistant Settlement Officer.
The said revisions were decided by the Deputy Director of Consolida tion by his Order dated May 13, 1971.
The Deputy Director allowed the revision of respondent No. 1 in full and held that he has got a share in Khata No. 72 along with the appellant and respondent No. 2 and since respondent No. 3 has already sold her share of Khata No. 72 the remaining three branches namely the appellant and respondents Nos. 1 and 2 are entitled to one third share each in the lands included in this Khata.
As regards lands in Khata No. 73 the Deputy Director disallowed the claim of the respondents in respect of plots Nos. 140, 141,142 and 143.
But with regard to other plots of Khata No. 73 the Deputy Director held that the name of Nanha was entered only in a representative capacity and that the branches of Manna, Chhota and Ram Sahai also had a share in these plots and that the respond ents had acquired equal shares along with the appellant in these plots and their names may also be recorded over the same.
The appellant filed a writ petition in the High Court to challenge the said decision of the Deputy Director of Consolidation, 188 but the said writ petition was dismissed in limine by the High Court by order dated July 23, 1971.
The application filed by the appellant for grant of certificate of fitness to appeal to this Court under Article 133 of the Constitu tion was also rejected by the High Court by its order dated November 9, 1972.
The appellant, thereafter, filed the civil suit giving rise to this appeal on January 25, 1973 for a declaration that the order of the Deputy Director of Consolidation dated May 13, 1971, is without jurisdiction.
The said suit was contested by respondent No. 1.
He raised a preliminary objection that the suit was barred by Section 49 of the Act.
The Munsiff Hawaii, Kanpur, by judgment dated August 16, 1974 decided the said preliminary objection in favour of respondent No. 1 and dismissed the suit on the ground that it was barred by Section 49 of the Act.
The said judgment and decree of the Munsiff Hawaii was affirmed in appeal by the Additional District and Sessions Judge, Kanpur Etawah by judgment dated January 17, 1975.
The second Appeal filed by the appellant against the said judgment was dismissed in limine by the High Court by the judgment under appeal.
The only question which arises for consideration in this appeal is whether the suit filed by the appellant was barred by Section 49 of the Act.
In the instant case the consolida tion proceedings under the Act were taken during the period 1969 to 1971 and the suit was filed in 1973.
At that time Section 49 read as under: "49.
Bar to civil jurisdiction Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of rights of tenure holders in respect of land lying in an area, for which a notification has been issued under sub section (2) of Section 4 or adju dication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act, shall be done in accordance with the provisions of this Act and no civil or revenue court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act.
" Shri R.K. Mehta, the learned counsel for the appellant, has urged that the bar of Section 49 of the Act is not applicable to the suit of the appellant because the orders passed by the consolidation 189 authorities were without jurisdiction inasmuch as the con solidation authorities could not decide questions as to title to the lands as well as the question relating to the parentage of respondent No. 1 which the Civil Courts alone could decide.
The submission of Shri Mehta is that the bar of Section 49 of the Act is applicable in respect of only those matters which could be adjudicated upon by the consol idation authorities.
Shri Mehta has placed reliance on the decision of this Court in Suba Singh vs Mahendra Singh and Others, From a perusal of Section 49 it is evident that declara tion and adjudication of rights of tenure holders in respect of land lying in an area for which a notification has been issued under Section 4(2) and adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under the Act, had to be done in accordance with the provi sions of the Act only and the jurisdiction of the civil or revenue courts to entertain any suit or proceeding with respect to rights in such land or with respect to any other matter for which a proceeding could or ought to have been taken under the Act, has been taken away.
The language used in Section 49 is wide and comprehensive.
Declaration and adjudication of rights of tenure holders in respect of land lying in the area covered by the notification under Section 4(2) of the Act and adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under the Act, would cover adjudication of questions as to title in respect of the said lands.
This view also finds support from the other provisions of the Act and the amendments that have been introduced therein.
In the Act, as originally enacted, Section 12 made provision for filing of objections against the statement of plots and tenure holders prepared by the consolidation authorities and in sub section (4) of Section 12 it was prescribed that where the objection filed under subsection (1) involves a question of title and such question has not already been determined by a competent court, the Consolida tion Officer shall refer the question for determination to the arbitrator.
Sub section (5) of Section 12 laid down that all suits or proceedings in the Court of first instance or appeal in which a question of title in relation to some land has been raised shall be stayed.
Under subsection (6) Of Section 12 finality was given to the decision of the Arbi trator under sub section (4).
Similarly Section 20 made provision for filing of objections against statement of proposals prepared by the consolidation authorities under Section 19 of the Act.
Section 22 prescribed that where any objection filed under Section 20 involves a 190 question of title in or over land and such question has not already been finally determined by a competent court, the Consolidation Officer shall refer it to the Arbitrator for determination and all suits or proceedings of the first instance or appeal in which a question of title in relation to the same had been raised shall be stayed and the decision of the Arbitrator shall be final.
There was a similar provi sion for reference to arbitrator in Section 36.
These provi sions indicate that initially the Act envisaged that ques tions of title, if not finally determined by a competent court, shall, instead of being decided by the Courts, be decided by an Arbitrator and the decision of the Arbitrator would be final.
As a result the determination of questions of title was withdrawn from the jurisdiction of the Courts.
On a consideration of the scheme of the Act and the policy behind the legislation, in the light of the provisions referred to above, this Court has observed: "The scheme of that Act, the policy behind that legislation and the language of the relevant provisions clearly show that the Legislature did not want questions of title to be decided by the Civil Court when the consolidation proceed ings were under way.
It is perfectly plain that the frag mented holdings being converted into consolidated parcels of land is a complicated operation to be conducted by adminis trative authorities, and if long and frequent proceedings in Civil Courts hold up consolidation operations, the very transformation of land holdings in villages the legislature desired to produce .would have been indefinitely postponed and messed up.
It is thus obvious that at this stage Civil Courts should not intervene even if the questions were of heirship or title to property.
At the same time, the Legis lature did not want to hand over these complicated questions of title and the like to mere consolidation agencies, and so under Sections 12(4) and 22(1), it was provided that objec tions relating to title to land, if they cropped up at intermediate stages of these operations, were to be referred to arbitration." (p.420 21) Extensive amendments were made in the Act by the U .P.
Consolidation of Holdings (Amendment) Act, 1958 (U.P. Act No. 38 of 1958) whereby a number of sections including section 36, were deleted and various provisions, including sections 5, 7 to 12 and 22, were substituted.
As a result of these amendments the provisions with 191 regard to arbitration contained in Sections 12, 22 and 36 of the original Act were removed.
In sub clause (i) of Clause (b) of Section 5, as substituted, it was provided that all proceedings for correction of the records and all suits for declaration of rights and interests over land, or for pos session of land or for partition, pending before any author ity or court, whether of first instance, appeal, or refer ence, or revision, shall stand stayed, but without prejudice to the rights of the persons affected to agitate the right or interest in dispute in the said proceeding or suits before the consolidation authorities under and in accordance with the provisions of the Act and the Rules made thereun der.
In sub clause (ii) of Clause (b) it was further provid ed that the findings of consolidation authorities in pro ceedings under the Act in respect of such right or interest in the land, shall be acceptable to the authority or court before whom the proceeding or suit was pending which may, on communication thereof by the parties concerned, proceed with the proceeding or suit, as the case may be.
In Section 9 as substituted, provision was made for issuing notice of the statement prepared under Section 8 of the Act to tenure holders concerned and to persons interested calling upon them to file before him objections, if any, disputing the correctness or nature of the entries in the extracts and pointing out of any omission therefrom.
In Section 10 of the Act provision was made for adjudication by the Consolidation Officer of the said objections in disputed cases.
In Section 11 provision was made for appeal against the orders passed by the Assistant Consolidation Officer and the Consolidation Officer under Sections 9 and 10.
Section 12, as substituted, prescribed that all matters relating to changes and trans fers affecting any of the rights or interests recorded in the revised records published under Section 1 1B for which a cause of action was non existent when proceedings under Sections 7 to 10 were started or were in progress may be raised before the Assistant Consolidation Officer as and when they arise but not later than the date of notification under Section 52 or under sub section (1) of Section 6 and that the provisions of Sections 7 to II shall mutatis mutan dis, apply to the hearing and decision of any matter praised under Section (1) as if it were a matter raised under the aforesaid Sections.
The scheme of the above mentioned amend ments introduced in the Act by the Amendment Act of 1958 was to empower the consolidation authorities to adjudicate on matters involving declaration of right and interests over land or for possession of land or for partition and suits or proceedings in that regard pending before any Court were to be stayed till such determination and after such determina tion.
the Court was to proceed with the said proceedings in the light of the findings of the consolidation authorities.
In other words the question as to title which were 192 earlier required to be determined by arbitration were to be adjudicated upon by the consolidation authorities under the Act.
From the Statement of Objects and Reasons for the Amendment Act of 1958 it appears that it become necessary to do away with the provisions for arbitration because it used to cause great delay and in order to inspire greater confi dence in the people in the adjudication of rights of tenure holders by consolidation authorities provision was made for a Second Appeal against orders passed by the Consolidation officer.
Further amendment was made in Section 5 of the Act by U.P. Act No. 21 of 1966 whereby clause (b) of sub section (1) of Section 5, as renumbered, was omitted and sub section (2) was added in Section 5.
By clause (a) of the said sub section (2) it has been provided that upon the publication of the notification under sub section (2) of Section 4 every proceeding for the correction of the records and all suits and other proceedings in respect of declaration of rights and interests in any land lying in the area, or for declara tion or adjudication of any other right in regard to which proceedings can or ought to be taken under the Act, pending before any Court or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the Court or authority before whom such suit or proceeding is pending, stand abated.
In clause (b) of sub section (2) of Section 5 it is further provided that such abatement shall be without prejudice to the rights of the persons affected to agitate the right or interest in dispute in the said suit or proceedings before the appropriate consolidation authorities under and in accordance with the provisions of the Act and the Rules made thereunder.
As a result of the said amendment which has been introduced in Section 5 the right of the Courts to adjudi cate in respect of declaration of rights or interest in any land lying in the area for which the notification has been issued under Section 4(2) or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under the Act has been completely taken away and the adjudication of these rights is to be done by the consolidation authorities under and in accordance with the provisions of the Act and the Rules made thereunder.
Section 49 of the Act which bars the jurisdiction of the civil and revenue Courts gives effect to the aforesaid provisions contained in Section 5(2) of the Act.
As a result of these amendments civil and revenue Courts have no role in the matter of determination of rights or interests in any land lying in the area for which notice has been issued under Section 4(2) of the Act or for the declaration or adjudication of any other right in regard to which proceed ings can or ought to be taken under the Act.
193 In Ram Adhar Singh vs Ramroop Singh and Others, ; this Court has dealt with the question whether a suit for recovery of possession filed by the plaintiff claiming to be 'Bhoomidar ' of the land and asserting that the defendant was a trespasser and not entitled to remain in possession of the property was covered by Section 5(2) of the Act as amended by U.P. Act No. 21 of 1966.
After consid ering the various provisions of the Act this Court held that "disputes of the nature which exists between the parties in the present litigation are all now within the jurisdiction of the authorities, constituted under the Act, to adjudicate upon" and on that basis it was held that the suit had abated under Section 5(2).
In Gorakh Nath Dube vs Hari Narain Singh and Others, ; this Court was concerned with a suit for cancellation of a Sale Deed to the extent of half share claimed by the plaintiff in fixed rates tenancy plots and for award of possession of the plaintiff 's share.
This Court held that the said suit had abated under Section 5(2) of the Act inasmuch as the claim made in the said suit could be adjudicated upon by consolidation courts.
Referring to Section 5 of the Act this Court has observed: "The whole object of this provision of the Act was to remove from the jurisdiction of ordinary civil and revenue courts, for the duration of consolidation operations, all disputes which could be decided in the course of consolidation pro ceedings before special courts governed by special proce dure.
Such adjudication by consolidation authorities were considered more suitable, just and efficacious for speedy decisions which had to be taken in order to enable consoli dation operations to be finalised within a reasonable time.
(P.341) This Court has held that questions relating to the validity of sale deeds, gift deeds and wills could be gone in proceedings before the consolidation authorities because such questions naturally and necessarily arose and had to be decided in the course of adjudication on rights or interests in land which are the subject matter of consolidation pro ceedings.
A distinction has, however, been made between cases where the document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have.legal effect.
With regard to cases falling in the first category it was held that such a claim can be 194 adjudicated by consolidation courts on the view that an alienation made excess of power to transfer would be, to the extent of the excess of power, invalid and an adjudication on the effect of such a purported alienation would be neces sarily implied in the decision of a dispute involving con flicting claims to rights, or interests in land which are the subject matter of consolidation proceedings.
But as regards cases falling in the second category where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it was held that the consolidation authorities would have no power to cancel the same and it must be held to be binding no them so long as it is not cancelled by a court.
In the instant case respondent No. 1 was claiming an inter est in the land lying in the area covered by notification issued under section 4(2) on the basis that he is the son of Chhota, brother of Nanha and that the lands were recorded in the name of Nanha in a representative capacity on behalf of himself and his other brothers.
This claim which fell within the ambit of Section 5(2) had to be adjudicated by the consolidation authorities.
Since it was a matter falling within the scope of adjudicatory functions assigned to the consolidation authorities under the Act the jurisdiction of the Civil Court to entertain the suit in respect of the said matter was expressly barred by Section 49 of the Act and the suit of the appellant was rightly dismissed on that ground.
Suba Singh vs Mahendra Singh, (Supra), on which reliance has been placed by the learned counsel for the appellant,has no application to the present case.
That case related to the year 1956 i.e. before the Amendment Act of 1958.
At that time provision relating to arbitration were contained in Sections 12(4) and 21(1) of the Act.
The provisions of sections of Section 49 of the Act which were in force at that time had a narrower scope and the jurisdiction of the Civil Court was barred "with respect of any matter arising out of consolidation proceedings or with respect to any other matter in regard to which a suit or application could be filed under the provisions of the Act.
" In that case after the scheme for consolidation under Section 23 of the Act had been confirmed one Jag Ram, who was held to be a Bhoomidar under the Scheme, had died.
Jag Ram had four sons including Ram Bhajan who hadpre deceased Jag Ram.
The plaintiff appellant claimed himself to be the son of Ram Bhajan and had applied for mutation in the consolidation proceedings on that basis which was allowed.
Thereafter he approached the Civil Court for partition of the property of Jag Ram.
The question was whether the said suit was barred by Section 49 of the Act.
This Court held that it was not so barred on the view that the 195 question as to who were the heirs of Jag Ram was not a matter arising out of consolidation proceedings and further that the said question of inheritance to the estate of Jag Ram arose after the consolidation operations had been sub stantively completed.
In this context this Court has ob served that there is no provision in the Act for any dispute of title which arises subsequent to confirmation of the statement under Section 23 to be decided by way of arbitra tion or otherwise and that the consolidation authorities had no jurisdiction to determine finally the complicated ques tion of title when the cause of action had arisen subsequent to the finalisation, publication and even implementation of the consolidation scheme so far as Jag Ram was concerned.
This would show that in this case this Court was considering the question whether a dispute as to title which arises subsequent to confirmation of the statement under Section 23 could be adjudicated upon by the consolidation authorities.
As pointed out earlier the position has been changed after the amendments that have been introduced in the Act by the Amendment Acts of 1958 and 1966.
For the reasons aforesaid we find no substance in this appeal and it is accordingly dismissed with costs.
R.S.S. Appeal dis missed.

dataset_name: IN-Abs

summary/full:
In the course of consolidation proceedings under the U.P. Consolidation of Holdings Act, 1953, questions arose amongst the members of a family regarding the title to certain properties.
Respondent No. 1 filed objections to the original entries in respect of lands in Khata No. 72 and 73 on the basis that he was the son of Chhota, one Of the sons of Teja, the common ancestor.
Similarly, respondents Nos. 2 and 3 filed objections claiming shares in the lands in Khata No. 73 on the ground that the said holding was jointly acquired but was recorded in the name of Nanha in a repre sentative character.
The appellant contested the claims of respondents Nos. 1, 2 and 3.
The objections were considered by the Consolidation Officer, who held that respondent No. 1 was the son of Heera alias Chhota, brother of Nanha, and granted him his share in certain plots of the Khata No. 73.
The appellant as well as respondents Nos. 2 and 3 fried appeals against the said order of the Consolidation Officer.
The Assistant Settlement Officer (Consolidation) allowed the appeal of the appellant and directed that lands in Khata No. 73 will be continued in the name of the appellant alone.
The respondents went in revision against the order of the Assistant Settlement Officer.
The Deputy Director of Consolidation allowed the revision of respondent No. 1 in full in respect of share in Khata No. 72.
As regards plots in Khata No. 73 the Deputy Director held that the name of Nanha was entered only in a representative capacity.
The appellant filed a writ petition in the High Court to challenge the decision of the Deputy Director of Consolida tion which was dismissed in limine.
185 The appellant, thereafter, 'filed the civil suit for a declaration that the order of the Deputy Director of Consol idation was without jurisdiction.
Contesting the suit, respondent No. 1 raised a preliminary objection that the suit was barred by section 49 of the Act.
The Munsiff decid ed the preliminary objection in favour of respondent No. 1.
The Additional District and Sessions Judge in appeal, af firmed the order of the Munsiff.
The second appeal filed by the appellant was dismissed by the High Court in limine.
Before this Court, it was contended on behalf of the appellant that the bar of section 49 of the Act was not applicable to the suit of the appellant because the orders passed by the consolidation authorities were without juris diction inasmuch as the consolidation authorities could not decide questions as to title to the lands as well as the question relating to the parentage of respondent No. 1 which the civil courts alone could decide.
Dismissing the appeal, this Court, HELD: (1) The language used in section 49 of the U.P. Consolidation of Holdings Act, 1953 is wide and comprehen sive.
Declaration and adjudication of rights of tenure holders in respect of land lying in the area covered by the notification under section 4(2) of the Act and adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under the Act, would cover adjudication of ques tions as to title in respect of the said lands.
Accordingly, the jurisdiction of the civil or revenue courts to entertain any suit or proceeding with respect to rights in such land or with respect to any other matter for which a proceeding could or ought to have been taken under the Act has been taken away.
[189D E; C] Suba Singh vs Mahendra Singh and Others, ; Gorakh Nath Dube vs Hari Narain Singh, , referred to.
(2) In the instant case, respondent No. 1 was claiming an interest in the land lying in the area covered by the notification issued under section 4(2) on the basis that he was the son of Chhota, brother of Nanha, and that the lands were recorded in the name of Nanha in a representative capacity on behalf of himself and his other brothers.
This claim which fell within the ambit of section 5(2) had to be adjudicated by the consolidation authorities under the Act, and the jurisdiction of the Civil Court to entertain the suit in respect of the said 186 matter was expressly barred by section 49 of the Act and the suit of the appellant was rightly dismissed on that ground.
[194C D]


judgement:
ivil Appeal Nos. 47(11 and 4702 of 1985.
From the Judgment and Order dated 12.12.
1983 of the Karnataka High Court in C.R.P. No. 3765 of 1981.
Dr. Y.S. Chitale Rameshwar Nath, Ravinder Nath and Sukumar Ghosh for the Appellants in C.A. Nos. 4701 and 4702 of 1985.
253 P. chidambram, S.S. Javali, H.R. Anantha Krishna Murthy and Ranjit Kumar for the Respondents in C.A. Nos. 4701 and 4702 of 1985.
The Judgment of the Court was delivered by VERMA, J.
These appeals by special leave are by the tenant and the sub tenant against a decree for eviction passed on the grounds of sub letting and the reasonable and bona fide requirement of the respondent landlord specified in clauses (f) & (h) of the proviso to sub section 1 of Section 21 of the Karnataka Rent Control Act, 1961 (herein after called 'the Act ').
The Trial Court had rejected the landlord 's application.
for an order of eviction on these grounds, but the High Court in a revision under Section 50 of the Act has set aside the Trial Court 's order and passed the decree for eviction on these grounds.
Hence these ap peals.
The material facts are undisputed at this stage.
The premises comprises of two shops and a house adjoining the shops and belonged earlier to one T.A. Jotindranath Mudali ar.
The premises were let out by the original lessor to M/s. Bhoolchand Chandiram (Appellant in Civil Appeal No. 470 1 of 1985) on 4.10.1943 on terms contained in the letter dated 4.10.
1943 from the original lessor to M/s. Bhoolchand Chandiram which reads as under: "T.A. Jotindranath 933, Laxmipur Mudaliar.
Mysore, 4th October 43 To Messrs. Boolchand Chandiram, Silk Merchant, C/o Messrs. Bhagwandas Shyam sunder & Co., 112, Commercial Street, Bangalore Cantt.
Dear Sirs, With reference to your letter dated 30th Sept. 43 and your personal conversation about renting out my shops in 254 the Commercial Street, Bangalore Cantonment, it is agreed and confirmed that you are prepared to take the two shops at monthly rent of Rs.430 (Rs. Four hundred and thirty only) with two years agreement and three month 's advance and execute the necessary rental Deed, with the option of sub letting one of the shops.
As for the House adjoining the shops at monthly rent of Rs.50 (Rs. Fifty only) with one month 's advance and Eleven Month 's rental Deed.
You have the option of sub letting the house also.
Yours sincerely, sd/ T.A. Jotindernath Mudaliar" M/s. Bhoolchand Chandiram continued as a tenant in the premises and sometime in the year 1946 sublet one of the two shops to one 'Arts Palace '.
Later, w.e.f.
1.4.1948 the appellant M/s. Bhoolchand Chandiram inducted another sub tenant M/s. Super Dry Cleaners (Appellant in Civil Appeal No 4702 of 1985) in place of Arts Palace in the same shop.
In 1960, a partition took place in the Hindu Undivided Family of Mudaliar brothers, the original lessor and the suit premises fell to the share of Narendranath Mudaliar.
M/s. Bhoolchand Chandiram continued in the premises as the tenant with Super Dry Cleaners as the sub tenant in one shop from 1.4.
The original lessor (including Narendranath Mudaliar after partition in the HUF of Mudaliar brothers) continued to take rent from the tenant M/s. Bhoolchand Chandiram of the entire premises i.e. two shops and the house adjoining the shops till May, 1974.
On 28.6.1974, the said Narendranath Mudaliar executed a registered sale deed in favour of respondent No. 1, M/s. Kay Pee Cee Investments, a registered partnership firm comprising of three ladies of one family as partners, for the sale consideration of Rs. 1,40,000.
It may be mentioned that in a proceeding for fixation of standard rent between the original lessor and the tenant, monthly rent of Rs.325 was fixed for the entire premises i.e. two shops and the house and the rent due upto May, 1974 was paid by the tenant to the original lessor.
After execution of the said sale deed in favour of respond ent No. 1, the tenant attorned in favour of respondent No. 1 and paid rent for the entire premises @ Rs.325 per month to respondent No. 1.
The suit premises comprises of Shop.
Nos. 44 and 45 (New Nos. 1 & 2) in commercial Street, Bangalore Cantt.
and House No. 250 (New No. 22 Narain Pillai Street Cross).
Admittedly, the premises are 255 in a prestigious commercial locality of the city of Banga lore.
Respondent No. 1 landlord claims that the entire suit premises is reasonably and bona fide required by the land lord for its own business as agents of various textile mills for the purpose of opening a showroom for which it was purchased.
It is also alleged that one of the shops was unlawfully sublet w.e.f.
1.4.1948 giving rise to the other ground of sub letting also for eviction.
The respondent No. 1 gave a notice on 31.7.1975 terminating the appellant tenant 's tenancy.
Thereafter on 5.9.1975 a petition was filed by respondent No. 1 for eviction of the appellant on the grounds of sub letting and bona fide need of the land lord under clauses (f) & (h) of the proviso to sub section 1 of Section 21 of the Karnataka Rent Control Act, 1961.
As earlier stated, the Trial Court dismissed the application, but the High Court has set aside that order and passed a decree for eviction on both the grounds.
The ground of sub letting is to be decided on the above undisputed facts on the basis of legality of the act of sub letting on 1.4.1948 in these circumstances.
The ground of bona fide need of the landlord is to be decided on the basis of the evidence led which is entirely oral from both the sides with reference to the infirmity, if any, in the High Court 's finding permitting interference therewith in these appeals.
Dr. Y.S. Chitale, learned counsel appearing for the appellant tenant assailed the High Court 's findings on both these questions.
Shri section Ghosh, learned counsel appearing for the sub tenant adopted the arguments of Dr. Chitale.
Shri Chidambaram, learned counsel appearing on behalf of the respondent No. 1 landlord has urged that there is no infirmity in the High Court 's decision on both the questions to permit any interference in these appeals.
We shall first take up the question relating to the landlord 's reasonable and bona fide requirement which is a ground for eviction under clause (h) of the proviso to sub section 1 of Section 21 of the Act.
It may be recalled that the Trial Court had negatived the existence of this ground while the High Court reversing that conclusion has held it to be proved.
The question before us is whether there is any infirmity in the High Court 's reversal of this finding justifying interference in these appeals.
Against the deci sion of the Trial Court, the provision made in Section 50 of the Act is of a revision and not an appeal to the High Court.
However, the power of revision is not narrow as in section 115 CPC but wider requiring the High Court to examine the impugned order for the purpose of satisfying itself as to the legality or correctness of such order or proceeding ' which enables the High Court to 'pass such order in refer ence thereto as it thinks fit '.
256 It is clear that the High Court in a revision under Section 50 of the Act is required to satisfy itself not only as to the legality of the impugned order or proceeding but also of its correctness.
The power of the High Court, therefore, extends to correcting not merely errors of law but also errors of fact.
In other words, the High Court in a revision under Section 50 of the Act is required to examine the correctness of not only findings on questions of law but also on questions of fact.
It is significant that the revi sion provided is directly against the Trial Court 's order and not after a provision of appeal on facts.
All the same, the power in revision under Section 50 of the Act cannot be equated with the power of the Appellate Court under Section 107(2) of the Code of Civil Procedure which is the same as that of the original court; and the revisional power under Section 50 of the Act even though wide as indicated, must fall short of the Appellate Court 's power of interference with a finding of fact where the finding of fact depends on the credibility of witnesses, there being a conflict of oral evidence of the parties.
It has, therefore, to be seen whether the High Court in the present case while reversing the Trial Court 's finding on the question of landlord 's reasonable and bone fide requirement of the suit premises exceeded its jurisdiction.
Admittedly, the only evidence led by the landlord for this purpose is oral comprising of the testimony of PW.
I Dinesh, the Power of Attorney holder of the landlord and son of one of the three ladies who were partners of that firm.
The evidence in rebuttal is also oral comprising essentially of denial of the plaintiffs requirement.
The credibility of the oral evidence adduced by the parties has to be assessed in the background of certain undisputed facts and circumstances.
It is undisputed that the respondent No. firm comprising of three partners, all women, belonging to a family of businessmen having textile business also was constituted in 1958 and the firm was registered in 1961; the power of attorney was given to PW 1 Dinesh, son of one of the partners, on 4.9.1970; the suit premises was purchased by the respondent No. 1 firm in 1974; respondent No. 1 firm has its business in one room on the third floor in a rented premises in Bangalore and it does not have any other premises for this purpose; and PW. 1 Dinesh is looking after the entire business of the respond ent No. 1 firm as a duly constituted attorney.
1 Thakur das Bhoolchand, proprietor of M/s. Bhoolchand Chandiram also admitted that the children of the ladies who were partners of the respondent No. 1 firm are carrying on the business and that business is being carried on 257 in a premise at Sakalji Market, Avenue Raod, Bangalore which according to respondent No. 1 is a rented accommodation.
RW. 1 has merely denied knowledge of the premises being taken on rent by respondent No. 1.
The question, therefore, is wheth er on these undisputed facts and circumstances the ,land lord 's reasonable and bona. fide need has been proved.
The Trial Court in deciding against the landlord was influenced considerably by the fact that in support of the landlord 's case 'no piece of documentary evidence is pro duced '.
The Trial Court accepted that the family of the respondent No. 1 carries on textile business but held it not proved that partition in the family has taken place to give rise to the requirement of respondent No. 1 firm for the suit premises when the joint family owns other premises in Bangalore.
According to the Trial Court, the respondent No. 1 firm is not a separate entity detached from the family.
The Trial Court was obviously in error in being influenced by the absence of any documentary evidence to support the need set up by respondent No. 1.
There is no finding record ed by the Trial Court of the existence of any document which was material for deciding the question and it being in possession of the respondent No. 1 had not been produced at the trial.
In the absence of any such finding, the effect of non production of any documentary evidence being put in scales against the landlord resulted in an infirmity permit ting the High Court to examine the correctness of the find ing even when it was based on the credibility of the oral evidence adduced by the parties.
Similarly, the suit prem ises belonging, admittedly, to the three ladies who were partners of the respondent No. 1 firm and to no other member of the family to which those ladies belonged, the premises, if any, belonging to other members of the family could not be taken into account for assessing the reasonable and bona fide need of the business of respondent No. 1 firm.
Since the three ladies constituting the respondent No. 1 firm come from a family having textile business and for the purpose of the suit premises, they being distinct from other members of the family with their separate business in a rented accommo dation in the same city, the Trial Court 's finding was vitiated by another infirmity when it failed to examine the need set up by respondent No. 1 firm in the correct perspec tive.
The High Court was, therefore, justified in re examin ing the correctness of the finding on this question correct ing both these errors which had vitiated the Trial Court 's finding.
These infirmities in the Trial Court 's finding clearly show that the weight of the Trial Court 's finding of fact in the present case was considerably reduced and the High Court in a revision under Section 50 of the Act was empowered to examine the cor 258 rectness of this finding after eliminating both the infirmi ties.
It is obvious that the partners of the respondent No. 1 firm belonging to a family already having large textile business would not purchase the suit premises in a presti gious commercial locality at Bangalore merely for earning the monthly rent of Rs.325 after investing the amount of Rs. 1,40,000 in 1974 to acquire the business premises.
This factor indicating the greater probability also has to be put in scales while assessing the landlord 's bona fide require ment set up in the present case.
Viewed in this manner, the High Court 's finding on this question based on the oral evidence adduced by the parties in the background of undis puted facts and circumstances of the case reaching the conclusion that the landlord 's reasonable and bona fide requirement of the suit premises for its own occupation is proved does not suffer from any infirmity which can justify interference therewith in these appeals.
This alone is sufficient to affirm the decree for eviction passed against the appellants in these appeals.
We shall now consider the other question relating to sub letting which is a ground for eviction specified in clause (f) of the proviso to sub section 1 of Section 21 of the Act.
The basic point for decision is whether the sub letting made by M/s. Bhoolchand Chandiram to M/s. Super Dry Cleaners of one shop which is a part of the suit premises w.e.f. 1.4, 1948 was unlawful being contrary to any provi sion of law then in force.
Considerable argument was ad vanced from both sides relating to the law then in force.
We may here indicate that existence of the ground of sub let ting loses much of its significance on our above conclusion that the landlord 's reasonable and bona fide need was right ly held proved by the High Court with the consequence that the decree for eviction can be sustained on that ground alone.
The ground of sub letting, however, remains of prac tical significance only for the purpose of applicability of sub section 4 of Section 21 of the Act since that would be attracted only if the ground of sub letting also found proved by the High Court, is not upheld herein.
If, however, this ground also is upheld, then the decree being passed even on this ground, the further question of greater hard ship to the landlord or the tenant under Section 21(4) of the Act would not arise.
It is for this reason that we consider it necessary to examine the question of subletting.
The main controversy between the two sides on the ground of sub letting is whether a written consent of the landlord for sub letting was necessary on 1.4.1948 when the sub letting was made and, if so, 259 was there such a written consent given by the landlord? The written consent of the landlord on which reliance is placed by the tenant as well as the sub tenant, the appellants in these appeals, is that contained in the above quoted letter dated 4.10.1943 of the original lessor.
Unless the written consent of the landlord contained in the above letter dated 4.10.1943 can be held to be subsisting on 1.4.1948 when the sub letting was made in favour of M/s. Super Dry Cleaners there , would, admittedly, be no written consent of the landlord to this subletting.
There is no controversy in this respect.
The first point for consideration, therefore, is whether the written consent of the landlord contained in the above quoted letter dated 4.10.1943 can be treated as subsisting and available on 1.4.
1948 when the subletting in question was, in fact, made.
There is no case set up by the tenant and sub tenant of any implied consent of the original lessor or waiver of the ground of sub letting and, therefore, that question does not arise for consideration.
The written consent of the landlord for sub letting on 1.4.1948 according to learned counsel for the appellants is to be found in the letter dated 4.10.1943 of the original lessor.
The consent of the landlord for sub letting is a question of fact.
Such consent is an act of volition of the landlord and is not to be inferred from any statutory provi sion.
The effect of the statute comes in, if at all, only for the purpose of ascertaining whether the landlord 's consent can be treated as subsisting after lapse of the period for which it was expressly given.
There being no compulsion on the landlord to give such consent it cannot ordinarily extend beyond the period for which alone it was expressly given.
Admittedly, the consent which was given by the original lessor in the present case is to be found only in the said letter dated 4.10.1943.
We must, therefore, see the consent given therein.
The aforesaid letter dated 4.10.1943 of the original lessor confirming the creation of the tenancy with effect from 4.10.1943 stated that two shops were let out on a monthly rent of Rs.430 for two years with the option of sub letting one of the shops; and the house adjoining the shops was let out on a monthly rent of Rs.50 for eleven months with the option of sub letting the house also.
There is no dispute that subsequently in a proceeding for fixation of the standard rent, the entire premises comprising of the two shops and the houses, was treated as one premises and the monthly rent of Rs.325 was fixed for the entire premises and this is how the tenancy was treated by both sides as one tenancy instead of two separate tenancies appearing in the 260 letter dated 4.10.1943.
The letter dated 4.10.1943 created contractual tenancy for a period of two years in respect of the two shops and for a period of eleven months for the adjoining houses.
Obviously, the consent of the landlord for sub letting mentioned therein by giving the tenant the option of sub letting cannot, therefore, be construed as consent for a period beyond the period of the contractual tenancy which was only two years in respect of two shops.
It would neither be reasonable nor appropriate to construe that the consent was given for any period after expiry of the period of contractual tenancy specified therein.
There is nothing in the said letter dated 4.10.
1943 10 suggest the continuance of the tenancy after the expiry of the specified period of contractual tenancy and, therefore, there could be no occasion to contemplate any consent for sub letting after expiry of the period of contractual tenancy of two years in respect of the two shops.
This is the factual position emerging from the aforesaid letter dated 4.10.1943 which alone is the basis of appellant 's assertion that sub letting w.e.f.
1.4.1948 was with the written consent of the original lessor.
Admittedly, creation of the sub tenancy w.e.f.
1.4.1948 in respect of one of these shops was long after the expiry of the period of contractual tenancy of two years specifically mentioned in that letter.
The question, there fore, is: whether the landlord 's consent given in the said letter dated 4.10.1943 could be treated as subsisting for creation of a valid sub tenancy w.e.f. 1.4.
1948 after the expiry of the period of contractual tenancy? The argument of Dr. Chitale, learned counsel for the appellanttenant, which has also been adopted by Shri Ghosh, learned counsel for the appellant sub tenant is that on expiry of the contractual tenancy, the tenant became a statutory tenant by virtue of the restriction on his evic tion except on one of the grounds for eviction provided in the statute and, therefore, all the terms and conditions of the contractual tenancy became the terms and conditions of the statutory tenancy.
On this basis, it was argued that the written consent of the landlord for sub letting during the period of the contractual tenancy continued to subsist as one of the terms and conditions of the statutory tenancy also.
It was argued that for this reason, even though the subletting was made w.e.f.
1.4.1948 after the period of the contractual tenancy, yet it too must be deemed to be with the written consent of the landlord which was available during the period of the contractual tenancy.
Dr. Chitale also referred to the fact that the first sub letting in 1946 to Arts Palace of the same shop which was later sublet w.e.f. 1.4.
1948 to M/s Super Dry Cleaners was also after expiry of the period of two years of the contractual tenan cy.
This fact, however, is not 261 material in the present case since the first sub letting ended before commencement of the second sub letting on 1.4.
1948 and it is only the validity of the subsisting sub letting w.e.f. 1.4.
1948 which is in question in the present proceedings.
Dr. Chitale relied on a number of decisions of this court in support of his contention ' that the written consent of the landlord for sub letting during the period of contractual tenancy continued as one of the terms and condi tions of the statutory tenancy when the sub letting was made w.e.f. 1.4.1948.
In reply, Shri Chidambram contended that the written consent of the landlord for sub letting is not one of the terms which ensures to the benefit of the tenant during subsistence of the statutory tenancy after expiry of the contractual tenancy.
The decisions cited at the Bar on this point are Damadilal and Others vs Parashram and Others, [1976] Supp.
SCR 645; Y. Dhanapal Chettiar vs Yesodai Ammal, ; ; Smt.
Gian Devi Anand vs Jeevan Kumar and Others, [1985] Supp. 1 SCR 1; Mahabir Prasad Verma vs Dr. Surinder Kaur; , ; M/s. Shalimar Tar Products Ltd. vs H.C. sharma and Others; , ; Shantilal Rampuria and Others vs M/s Vega Trading Corporation and Others, ; ; M/s. Bajaj Auto Limited vs Behari Lal Kohli, ; ; Duli Chand (Dead) by L.rs.
vs Jagmender Dass; , and Tara Chand and Another vs Ram Prasad, The decision in Damadilal 's case (supra) and others in the same line related primarily to the question of heritable interest in the premises of the legal representatives of the deceased tenant who was in occupation as statutory tenant.
Pointing out that the concept of statutory tenancy under the English Rent Acts and under Indian Statutes like the one with which we are concerned rests on different foundations, it was held that the statutory tenant had a heritable inter est in the premises which was not merely a personal interest but an interest in the estate like that of a contractual tenant.
On this conclusion, the right of legal representa tives of the statutory tenant to protect the possession and prosecute the appeal against eviction order was upheld.
The main question for decision in Damadilal 's case (supra) was the heritable nature of the statutory tenancy and it was in this context that the terms and conditions of a statutory tenancy were held to be the same as those of the contractual tenancy preceding it.
No question arose in Damadilal 's case (supra) of the right of a statutory tenant to create a sub tenancy after replacement of the contractual tenancy with the statutory 'tenancy.
The observations made and the deci sion rendered in Damadilal 's case (supra) cannot, therefore, be construed as holding that a statutory tenant has a right to create a sub tenancy 262 during subsistence of statutory tenancy after expiry of the contractual tenancy when the Rent Acts give the same protec tion against eviction tO the tenant except on one or more of the specified grounds.
Obviously, the protection to the statutory tenant and the heritable nature of the statutory tenancy providing the same protection against eviction to the tenant 's heirs does not further require conferral of the right of inducting a sub tenant which is not necessary for enjoyment of the tenancy and the protection against eviction given by the Rent Acts.
There is no rationale for inferring or extending the landlord 's written consent for sub letting beyond the period of contractual tenancy for which alone it is given.
No separate discussion of the later decisions in the same line is necessary because of the same distinction in all of them.
One decision which.
requires specific mention and is obviously nearest on facts to the present case is Mahabir Prasad Verma vs Dr. Surinder Kaur, ; In that case, the contractual tenancy was for a period of one month from 1.4.
1974 to 30.4.1974 with the landlord 's consent for sub letting.
The tenant continued to occupy the premises even after expiry of the contractual tenancy on 30,4.1974 and inducted therein a sub tenant.
The landlord sued for eviction of the tenant on the ground of unlawful sub letting of the premises which was a ground for eviction under the relevant Rent Act.
There was some dispute about the time of induction of the sub tenant, it being claimed by the tenant that the induction of the sub tenant was in the month of April, 1974 during subsistence of the contractual tenancy while the landlord contended that the sub letting was after the month of April, 1974.
It was found as a fact that the tenant had sublet in the month of April, 1974 when the written consent of the landlord subsisted and not subsequent to it in May as claimed by the landlord.
The crux of the question for decision therein was stated thus: "The crux of the question, therefore, is whether the sublet ting by the tenant with the written consent of landlord during the currency of the tenancy becomes unlawful and illegal on the determination of the tenancy and furnishes a ground for eviction within the meaning of section 13(2)(ii)(e) of the Act.
" On the finding that the sub tenant had been inducted during the period of contractual tenancy on the basis of the writ ten consent for subletting given by the landlord, the sub letting did not become unlawful merely because the contrac tual tenancy of the tenant came to an end and the protection against eviction to the tenant as a statutory tenant also 263 enured to the benefit of the lawful sub tenant recognised by the statute.
It was held as under: "Subletting lawfully done with the written consent of the landlord does not become unlawful merely on the ground that the contractual tenancy has come to an end.
Subletting to constitute a valid ground for eviction must be without the consent in writing of the landlord at the time when the tenant sub lets any portion to the sub tenant.
A subletting by the tenant with the consent in writing of the landlord does not become unlawful on the expiry of the contractual tenancy of the tenant, unless there is any fresh sub letting by the tenant without the written consent of the landlord Mere continuance in posses sion of a sub tenant lawfully inducted does not amount to any fresh or further sub letting.
We are, therefore, satis fied that in the instant case the tenant has not sub let any portion without the written consent of the landlady after the commencement of the Act . .
Mere continuance of possession by the subtenants lawfully inducted by the tenant with the written consent of the landlady contained in rent note does not afford any ground to the landlady for eviction of the tenant on the ground of sub letting, as the tenant has not sub let after the commencement of the Act any por tion without the consent in writing of the landlady." (emphasis supplied) Of all the decisions cited at the Bar, this decision is, admittedly, nearest on facts to the present case with the only difference that the sub letting in the present case was after expiry of the contractual tenancy and after the com mencement of the Act prohibiting subletting without the written consent of the landlord when it was made on 1.4.1948, while the sub letting in Mahabir Prasad 's case (supra) was during the period of contractual tenancy when the express written consent of the landlord for sub letting was available.
The principle for application, however, is the same with the only difference in the result since in Mahabir Prasad 's case (supra) the sub letting was made during subsistence of the contractual tenancy with the written consent of the landlord.
It is significant that the judgment in Mahabir Prasad 's case (supra) was by A.N. Sen, J. who also wrote the opinion in Gian Devi 's case (supra) relied on by Dr Chitale as one of the decisions in line with Damadilal 's case (supra).
It is clear that A.N. Sen, J., who wrote the 264 opinion of the Bench in Mahabir Prasad 's case (supra) as well as in Gian Devi 's case (supra) did not construe the earlier decisions starting with Damadilal 's case (supra) in the manner read by Dr. Chitale.
If Dr. Chitale is correct in his submission on this point, then the entire emphasis in Mahabir Prasad 's case (supra) on the sub letting being made during the period of contractual tenancy in April, 1974 and not thereafter being decisive of the validity of sub letting was misplaced and a futile exercise.
In our opinion this was not so and the correct premise is that landlord 's written consent for sub letting during the period of contractual tenancy cannot be construed as his consent subsisting after expiry of the contractual tenancy.
The submission of learned counsel for the appellants runs counter to the clear deci sion in Mahabir Prasad 's case (supra) which, in our opinion, is in no way contrary to the decisions starting with Damadi lal 's case (supra), the observations wherein are in the context of heritability of the statutory tenancy.
In fact.
it is rightly not even contended by Dr. Chitale that the decision in Mahabir Prasad 's case (supra) runs counter to Damadilall 's case Supra and other decisions following them.
This is sufficient to indicate that the appellants ' conten tion is untenable.
There is some controversy between the parties about the legislative history of the Rent Acts in the Bangalore Civil Station wherein the suit premises is located, but an in depth consideration of that controversy is not necessary.
The only question is: whether on 1.4.1948 when the sub letting was made in favour of M/s. Super Dry Cleaners, the contractual tenancy giving written consent for sub letting having expired was the written consent of the landlord for sub letting necessary under the statute then in force? It is sufficient to state that the Bangalore House Rent and Accom modation Control Act, 1946 was brought into force w.e.f. 1.10.1946 for a period of two years expiring on 1.10. 1948.
Later enactments were Mysore House Rent and Accommodation Control Act, 1951 and then Karnataka Rent Control Act, 1961 w.e.f.
31.12.1961.
The suit for eviction was filed in Sep tember, 1975 on the grounds contained in clauses (f) and (h) of the proviso to sub section 1 of Section 21 of the Karna taka Rent Control Act, 1961.
in the Bangalore House Rent and Accommodation Control Act, 1946 which applied at the time of sub letting in the present case on 1.4.1948 the provision for eviction of tenants was made in Section 9 thereof.
Sub section 2 specifies the grounds on which a landlord was entitled to seek eviction of his tenant.
One such ground in Sub section 2 is of sub letting and the relevant portion reads as under: "(iii) that the tenant has after the commencement of this 265 Law without the written consent of this landlord .
(a) sub let the entire building or any portion thereof; or ,, It is, therefore, clear that the written consent of the landlord for sub letting was necessary under the relevant statute applicable on 1.4.
1948 when the sub letting was made in the present case.
In fact.
this requirement of written consent of the landlord was the basis on which both sides argued the case and the main thrust of Dr. Chitale 's argument was that such a written consent was to be found in the letter dated 4.10.1943 of the original lessor.
We have, earlier, indicated that the landlord 's consent in the afore said letter dated 4.10.1943 was not available on 1.4.1948 after expiry of the contractual tenancy.
The rest is only a logical corollary to this conclusion leading to the inevita ble result that induction of the sub tenant M/s.
Super Dry Cleaners w.e.f. 1.4.1948 by the tenant M/s. Bhoolchand Chandiram was unlawful being made contrary to the provision of law then in force which constitutes the ground for evic tion contained in clause (f) of Sub section 1 of Section 21 of the Karnataka Rent Control Act, 1961.
There is, thus, no ground to differ with the conclusion reached by the High Court that the ground of sub letting has been made out, even though our reasons are different.
On the above conclusion that the ground of sub letting also was rightly held proved by the High Court in addition to the ground of landlord 's reasonable and bona fide re quirement, the question of applicability of Sub section 4 of Section 21 of the Karnataka Rent Control Act, 1961 does not arise and, therefore, it is not necessary to examine the question of comparative hardship.
In that view of the mat ter, the appeals must fail.
Consequently, both the appeals are dismissed.
In view of the fact that the appellants are carrying on their business in the suit premises for a long time and will, therefore, need some reasonable time to shift to some other place, we grant to the appellants time till 31.3.1991 for vacating the suit premises and delivering vacant possession thereof to the landlord respondent No. 1, subject to undertaking in the usual terms being filed by the appellants within a period of four weeks.
No costs.
Y. Lal Appeals dis missed.

summary/full:
T.A. Jotindranath Mudaliar, the original lessor, let out his premises viz. two shops and a house adjoining the shops to M/s,Bhoolchand Chandiram, appellant on 4.10.1943 on the terms contained in the letter dated 4.10.1943 whereby the shops were let out on a monthly rent of Rs.430 for two years with the option of sub letting one of the shops and the house adjoining the shops was let out on a monthly rent of Rs.50 for eleven months with the option of sub letting the house also.
The appellant sub let one of the two shops to one 'Arts Palace ' and later w.e.f.
1.4.1948, the appellant inducted another sub tenant M/s. Super Dry Cleaners, appel lant in the other appeal.
Consequent upon a partition in the family of original lessor, the premises in dispute came to the share of Narendranath Mudaliar.
The original lessor including Narendranath Mudaliar after partition continued to realise rent from the tenant of the entire premises till May 1974.
On 28.6.1974, Narendranath Mudaliar sold the property in question to respondent No. 1.
The appellanttenants at torned in favour of respondent No. 1 and paid rent for the premises @ Rs.335 (fair rent fixed) to respondent No. 1.
Respondent No. 1 filed petition on 5.9.1975 for eviction of the appellant on the grounds of sub letting and bona fide need of the landlord under clauses (f) and (h) of the provi so to sub section (1) of Section 21 of the Karnataka Rent Act.
The trial court dismissed the application, but the High Court set aside that order and passed a decree for eviction on both the grounds.
Hence these appeals by the tenant and sub tenant have been filed after obtaining special leave of the Court.
The appellants question the findings of the High Court on both the questions viz. bona fide requirement of the landlord as also sub letting.
252 Respondent No. 1 on the other hand urged that there is no infirmity in the High Court 's decision on both the questions so as to warrant any interference in these appeals.
Dismissing the appeals, this Court, HELD: Landlord 's written consent for sub letting during the period of contractual tenancy cannot be construed as his consent subsisting after the expiry of the contractual tenancy.
[265D] A sub letting by the tenant with the consent in writing of the landlord does not become unlawful on the expiry of the contractual tenancy of the tenant, unless there is any fresh sub letting by the tenant without the written consent of the landlord.
Mere continuance in possession of a sub tenant lawfully inducted does not amount to any fresh or further sub letting.
[265E F] The sub letting in the instant case was after expiry of the contractual tenancy and after the commencement of the Act prohibiting sub letting without the written consent of the landlord when it was made on 1.4.1948.
[265B] Damadilal and Ors.
vs Parashram and Others, [1976] supp.
SCR 645; Dhanapal Chettiar vs Yesodai Ammal ; ; Smt.
Gian Devi Anand vs Jeerart Kumar and Ors., [1985] Supp. 1 SCR 1; L. Mahabir Prasad Verma vs Dr. Surinder Kaur, ; ; M/s. Shalimar Tar Products Ltd. vs H.C. Sharma and Ors.
, ; ; Shantilal Rampuria and Ors.
vs M/s. Vega Trading Corpn.
and Ors., ; ; M/s. Bajaj Auto Ltd. vs Behari Lal Kohli, ; ; Duli Chand (dead) by Lrs. & Ors.
vs Jagmender Dass, ; and Tara Chand and Ant.
vs Ram Prasad, , referred to.