SUNDER SINGH AND ORS.

NARAIN SINGH AND_ ORS,

March 11, 1966

[P. B. GAJENDRAGADKAR, C. J., K. N. WANCHOO, M. HIDAYA-

TULLAH, J. C. SHAH AND S. M. S!KRI, JJ.]

Patiala and East Punjab States Union Holdings (Consolidation and Prevention of Fragmentation) Act 5 of 2007 BK, ss. 24 and 25-Land sought to be pre-empted exchanged for other land in consolidation proceedings-pre., emptor's right to follow the land to which his right attaches.

The appellants purchased certain lands in the State of Punjab and the respondents filed a suit claim:ng a right of pre-emption . thereon.

Under a scheme of consolidation, however, the appellants had before the filing of the suit, been. allotted some other lands in lieu of the land• purchased by them, and they contended that the right of pre-emption claimed by the respondents did not extend to these lands.

The trial court and the High Court decreed the respondents' suit holding on the basis of s. 24 of the Pat"ala and East Punjab States Union Holdings (Consolidation and Prevention of Fragmentation) Act 5 of 2007 BK thi.I it was open to pre-emptor to fOilow the land which had been given to the vendees in consolidation proceedings in lieu of the land which was the subject matter of the sale-deed.

The appellants came to this Court by special leave.

HELD : Section 24 when it says that the landowner or the tcnint at will shall have the same right in the land allotted to him as he bad

in his original holding or tenancy clearly preserves the obligation that 111ay be on the land in the nature of a disab:Jity.

The consequence therefore is that the ordinary law of pre-emption under which the pre-emptor has the. right to follow the land which is the subject-matter of the sale-dttd becomes expanded and the land allotted to the landlord and tenant at will in lieu of the land which may have been subject to pre-emption alllo becomes subject to pre-emption in tho same way as the original hold ing or the tenancy.

This inference is not negatived by the special pro visions of s. 25 in respect of leases and mortgages or other encumbruees.

[866 G; 867 D-E]

Shrl Audh Behari Singh v. Gaiadhar Jaipur/a, [1955] 1 S.C.R. 70, Blshan Singh v. KhaWt Singh, [1959) S.C.R. 878 relied on.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 822of1963

G Appeal by special leave from the judgment and decree dated April, 7, 1961 of the Punjab High Court in Regular First Appeal No. 32 of 1957.

, ..

Bishan Narain and B. P. Maheshwari, for the appellants Nos.1-3 and 5-10.

H M. V. Goswami, for appellant No. 4.

Bhawani Lal, E .C. Agarwala, Ganpat Rai and P.C. Agarwa/a. for respondent Nos. l(i)-l(vi).

864 SUPREME couRT REPORTS fl 966] 3 S.l'R

The Judgment of the Court was delivered by

Wanchoo, J ... This is an appeal by special lea'e fr<>m the decree of the Punjab High Court in a suit brought by the plaintiffs-respondents for pre-emption. The appellants arc vcndces to the sale which was pre-empted. The facts found by the courts below arc these. The property in suit consisted of agricultural land as well as some haras in village Jalalpur.

Punnu Singh and Mansha Singh who were also parties to the suit as defendants sold lhc property in suit on January 15.1955 to the appellanls. Thereafter consolidation proceedings took place in this village and came to an end before the present suit was filed on January 14, 1956.

Of the vcndees, six had no share in the village from before while four already had some share in the village.

As a result of the consolidation proceedings. six of the vcndecs who had no share in the viUage from before were allotted other land in place of the land which they had purchased under the sale-deed. The other four vendecs "'ho had some share in the village from before were allotted land in two blocks in lieu of the land they had in the village from before as well as the land which they had purchased by the sale deed in question. The plaintiffs-respondents instituted the suit on the basis of their being collaterals and co-sharers and wanted that they should be given out of the land allotted to the vendces in consolidation proceedings such land as they would be entitled to after pre-emption of the sale in question.

The suit was rc, isted by the appellants on a numher of ground,.

The main gr\lund of defence with which we arc concerned in the

present appeal was whether the suit was maintainable with rcspc't:t to the land which had been obtained by the vendees during consolidation proceedings in lieu of the land which was the subject matter of the sale deed.

The trial court hdd in favour of the plaintiffs-respondents and granted a decree for pre-emption. On appeal to the High Court by the vendees, the High Court held on the basis of s. 24 of the Patiala and East Punjab States Union Holdings (Consolidation and Prevention of Fragmentation) Act, No. ) of 2007 Bk. (hereinafter referred to as the Act), that it was open to the pre-emptor to follow the land which had been given to the vendees in consolidation proceedings in lieu of the land which was the subject matter of the sale deed.

Further in the High Court another point was raised on behalf of four of the appelianL' who had land from before in the village and it was urged that in their case it was not possible to distinguish which land had been allotted Lo them in place of the land sold and therefore no pre-emption decree should be granted. This argument was also rejected by the High Court, and the appeal was dismissed. The High Court h:ning refused the certificate. the appellants applied and obtained

pccial leave from this Court: and that is how the matter has come

before us.

SUND!!~ SINGH v. NA!lAIN SINGH (Wanchoo, J.) 865

The main question that has been argued before us is that the suit is not maintainable as it is not open to the pre-emptor to follow the land which might have been obtained by the vendees in lieu of the land actually sold to them. The answer to this question depends upon the interpretation of s .. 24 of the Act in the background of the law of pre-emption.

In Shri Audh Behari Singh

v. Gajadhm Jaipuria,(') this Court held that-

"The correct legal position seems to be that the law of pre-emption imposes a limitation or disability upon the ownership of a property td the "extent that it restricts the owner's unfettered right of sale and compels him to sell the property to his co-sharer or neighbour as the case may be ...... The crux of the whole thing is that the benefit as well as the burden of the right of pre-emption run with the land and can be enforced by or against the owner of the land for the time being although the right of the pre-emptor does not amount to an interest in the land itself. ......... The right of pre-emption is an incident of property and attaches to the land itself. ....... " This Court had occasion to consider the matter again in Bislwn Singh v. Khazan Singh(2) and pointed out that the right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold, this being the primary or inherent right, and that the pre-emptor has a secondary right or a remedial right to follow the thing sold. Reliance is placed on behalf of the appellants on this later decision and it is stressed that the pre-emptor's remedial right is merely to follow the thing sold, namely, the very property which is the subject-matter of the sale-deed under pre-emption.

The later decision on which reliance is placed does not in any manner affect the earlier decision where it was held that the right of pre-emption is an incident of property and attaches to the land.

It is true, as held in the later decision, that ordinarily the right of the pre-emptor is to follow the property which is the subject-matter of the sale deed. The question which, however arises in the present case is whether s.24 of the Act makes any difference to this ordinary position of the law of pre-emption. That section reads as follows:-

"A land, owner or a tenant at will shall have the same right in the land allotted to him in pursuance of the scheme of consolidation as he had in his original holding or tenancy as the case may be." Clearly the effect of this provision is to give to the land-owner or a tenant at will the same right in the land which he acquires under the scheme of consolidation in lieu of that land which he had before the consolidation proceedings. He cannot get more

--(Tf[1955]'1s.c]f 7-0-. -

(2) [1959) S.C.R. 878.

SUPRBME

COURT

REPORTS

(1966) 3 S.C.R

rights than he had before nor can be get any Jess rights. It is urged that that section only preserves the rights and has nothing to do with obligations to which the land may be subject. We are of opinion that this is not so. When the section lays down that the land-owner or a tenant at will shall have the same right ia the land allotted to him in pursuance of the scheme of consolidation as he had in his original holding or tenancy, it clearly implies that obligations would also remain the same. If that were not so and if his obligations were to disappear he would acquire more right in the land allotted to him than he had in the original holding or tenancy. For example, if the land-owner had only a life interest in the original holding he would get the same life interest in the land allotted to him and could not claim to be absolute owner of the land allotted in consolidation proceedings. Thus the obligation which attached to his ownership of his original holding (namely, that it was subject to all the disabilities of a limited owner) would also apply to the land allotted to him in consolidation proceedings.

Therefore when s. 24 speaks of the landowner or the tanant at will having the same right in the land allotted as he had in the original holding or tenancy, it brings in all tl".c rights and obligations which were attached to his ownership or tenancy of the land originally held.

It is in this background that the nature of the right of preemption as held in A11dh Behari Singh's case (1) assumes importance. In that case it was held that the law of pre-emption imposes a limitation or disability upon the ownership of a property and that the benefit as well as the burden of the right of pre-emption run with the land. Therefore if the original holding of the landowner was subject to the disability of pre-emption the land allotted in lieu thereof will be equally subject to the same disability. This will however always be subject to the law of pre-emption itself, and to the well-settled principle of pre-emption, namely, that the pre-emptor must have a right of pre-emption at the date of the sale, at the date of the suit and finally at the date of the decree.

Section 24 when it says that the landowner or the tenant at will shall have the same right in the land allotted to him as he had in his original holding or tenancy. clearly preserves the obligation that may be on the land in the nature of a disability. The consequence therefore is that the ordinary law of pre-emption under wnich the pre-emptor has the right to follow the land which is the subject-matter of the sale deed becomes expanded and the land allotted to the land-owner or tenant at will in lieu of the land which may have been subject to pre-emption also becomes subject to pre-emption in the same way as the original holding or tenancy.

So it follows that if the land allotted in lieu of the original holding or tenancy is pre-emptible under the law of pre-emption and the right of pre-emption still exists on the three dates to which we have

<f> (1955] 1 s.c.R:1ci. ··· ·-

SUNDER SINGH v. NAMIN SINGH (Wanchoo, I.) 867

already referred, the pre-emptor would by virtue of s.24 be able to enforce his rights against land which may have been allotted to the vendee in lieu of the land which was actually the subject-matter of sale.

We are therefore of the opinion that the construction of s. 24 by the High Court is correct and the plaintiffs-respondents have a right by virtue of s. 24 of the Act to pre-empt the land which was allotted to the appellants in lieu of the land which was the subject-matter of the sale-deed.

It is however urged that s. 25 of the Act specifically provides for rights with respect lo a kase, mortgage or other encumbrance to attach to the land allotted in place of the original holdings, and that shows that no other rights were intended to survive.

We are of opinion that there is no force in this argument. It was necessary to enacts. 25 when dealing with leases, mortgages and encumbrances for without such a specific provision, a lease, mortgage or encumbrance which was on one piece of land could not in law attach to another piece of land. This however is very different from an incident of ownership of land e.g. liability to pre-emption which attaches to the land itself and continues to attach to the land allotted in lieu of the original holding or tenancy by s. 24. The special provisions therefore in s. 25 do not negative the inference that obligations which attach to the right of owernship of the original holding or tenancy would continue to attach to the land allotted in lieu thereof in consolidation proceedings .

This brings us to the subsidiary contention which was raised in the High Court, namely, that four of the vendees were allotted land in lieu both of what they owned from before and what they got under the sale deed in question. The High Court has heldand we think rightly-that there should be no difficulty in finding out how much of the land allotted pertains to the land which was the subject-matter of the sale-deed. Land is always valued for purposes of allotment during consolidation proceedings and it would not therefore be difficult to find out how much land was allotted to these four vendees in place of the land which they got by the sale deed.

Lastly it is urged that the form of the decree is incorrect. This submission is made on the basis of the following sentences in the judgment of the trial court:

"It does not mean that the land is not distinguishable.

It can be considered during execution at the time of delivering the possession of the land." We have not permitted learned counsel to raise this point for the first time before us, as it was not raised in the High Court. We therefore reject this contention.

The appeal fails and is hereby dismissed. Costs as per order dated 8-9-65.

Appeal dismissed.

SUNDER SINGH AND ORS

NARAIN SINGH AND_ ORS

P. B. GAJENDRAGADKAR

K. N. WANCHOO

C. SHAH

ss. 24 and 25

s. 24

Section 24

s. 25

[1955] 1 S.C.R. 70

Bishan Narain

B. P. Maheshwari

H M. V. Goswami

Bhawani Lal

E .C. Agarwala

Ganpat Rai

P.C. Agarwa

Wanchoo

Punjab High Court

Jalalpur

Punnu Singh

Mansha Singh

January 14, 1956

s. 24

SUPRBME

s. 24

A11dh Behari Singh

Section 24

s. 24

s. 24

s. 25

s. 24

s. 25


M. PADMANABHA SETTY

K. P. PAPIAH SETTY

Marclz I I, I 966

(P. B. GAJENDRAGADKAR, C.J., K.N. WANCHOO, M. HIDAYA-

TULLAH, J. C. SHAH AND S. M. S!KRI, JJ.)

Mysore House Rent and Acco1nntodation Control A.er (30 of 1951), s. 8(3) (a)(ii)-'"Elltitled to possession'", meaning of.

The appellant and the respon.dcnl were the tenant and landlord re"- :pectively, of the non-residential premises in dispute.

The respondent's upplication under s. 8(3)(a) (ii) of the Mysore House Rent and Accommodation Contnrol Act, 1951, for eviction of the appeUant on the ground

1hat the respondent required the prcmiscS for the purpose of shifting hi3 tbmusiness which he was carrying on in a rented building, was ordered,

but the order was set aside by the appellate court.

The High O>urt .in revision set aside the appellate order nd restored the order ot eviction. ·

Ia appeal to this Court, it was contended that :

(i) since the rc.1pondent was, within the meaning of s. 8(3)(a)(ii). '"entitled to poosession" of the building in his occupation he had no right to ask for the ..appellant's eviction; and (ii) the High Court should not have interfered in re'wision under s. 17 of the Act.

HELD :

(i) The High Court was right in ordering the eviction of the appellant from the premises. • The respondent, who was in occupation of a build"ng as a tenant. and over which he had no absolute right of possession but only a right 1:0 remain in possession till one of the conditions in s. 8(2) is satisfied. could not be srud to be "entitled to possess'on" of that building.

Tho.•e ·, vords are more akin to the right of possession which an owner has in respect of a building owned and occupied by him. [873 E-GJ

(ii) In not following the decision of the High Court in Narayanappa v.

F Narasimhlali, [1962) Mys. L.J. 760, the appellate court acted with mate- Tial irregularity and so the High Court could set aside the appellate orcler

in revision. [874 BJ

Tfianappa Chetty v. Govindaswami Naicker, A.l.R. 1952 Mad. 553. overruled.

Crv!L APPELLATE JURISDICATION: Civil Appeal No. 756 of 1%5.

Appeal by special leave from the judgmenf'and order dated April 9, 1965 of tbe Mysore High Court in Civil Revision Petition No. 1044 of 1962. '4,

S. K. Venkatarangaiengar G. L. Sanghi, J. B.

Dadacl1anji, O. C. Mathur and Ravinder Narain, for the appellant. 1 H

Mirle N. Lakshminaraynappa 0. P. Malhotra, S. S. Khm1d11ja <llnd Ganpat Rai. for the respondant.

A •

• _I

B ; i

G ...

The Judgment of the Court was delivered by

Sikri, J. This appeal by special leave is directed against the judgment of the High Court of Mysore in Civil Revision Petition No. 1044 of 1962, filed under s. 17 of the Mysore House Rent and Accommodation Control Act, 1951 (Mysore Act 30 of 1951)- hereinafter referred to as the Act-whereby the High Court set aside the order passed by the III Additional District Judge, Bangalore. The III Additional Judge had set aside the order of the First Munsiff, Bangalore, who had directed the eviction of the ten.int from the premises in dispute.

The appellant before us, Padmanabha Setty, hereinafter referred to as the tenant, was the tenant of a non-residential premises No. 281, Old Tharagupet, Bangalore City. The tenant had installed some machinery in the premises. The respondent, K. P.

Papiah Setty, is the landlord.

He had purchased the premises for his own use and occupation, namely, for the purpose of shifting his business which he was carrying on in a rented building to the premises in dispute.

The landlord filed an application under s.8(3)(a)(ii) of the Act for the eviction of the tenant on the ground that he required the premises m dispute for his own use and occuption.

It is not necessary to give the other allegations made in the application as both the First Munsiff, Bangalore, and the III Additional District Judge, Bangalore, have found that the landlord required the premises for his honafide use and occupation, namely, for shifting his business from the rented premises to the premises in dispute. The Ill Additional District Judge, however, held that under s. 8(3)(a)(ii) the landlord was not entitled to possession of the premises in dispute unless and until he was prepared to vacate the shops in which he was trading at the time. This finding of the learned Additional Judge was contrary to the decision of the Mysore High Court in S. G. Narayanappa and Bros. v. A. N. Narasimhiah(' ). The landlord then filed a revision petition under s. 17 of the Act, and the High Court, following the decision in S. G. Narayanappa and Bros. v.

A. N. Narasimhiah( 1) set aside the order of the Additional District Judge. The tenant having obtained special leave, the matter is now before us.

Two points are raised before us: ( 1) that the construction put upon s. 8(3)(a) (ii) of the Act by the Mysore High Court is erroneous and the construction put upon a similar provision by the Madras High Court in V. Thanappa Che tty v. Arcot Govindaswami Naicker(') is correct; and (2) that the High Court was not right in setting aside the order of the Additional District Judge in a revision under s.17 of the Act.

-- . --~------ (!) [1962) Mys. L. J. 76"l. {:!) A.T.R. 1952 Mad. 553.

The Act was passed to regulate the letting of residential and A non-residential houses and to control the rents of such houses and to prevent unreasonable eviction of tenants therefrom m the State of Mysore. The word "tenant" is defined as follows in sub-s.

(9) of s. 2 of the Act:

" 'tenant' means any person by whom or on whose account rent is payable for a house and includes the surv1vmg spouse or any son or <laughter of a deceased tenant who had been living with the tenant in the house as a member of the tenant's family up to the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a house by its tenant or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter-house or of rents for shops has heen farmed out or leased by a local authority." There is no doubt that the definition of the word "tenant" 1s wider than the ordinary meaning of the word and includes a person rontinuing in possession after the termination of the tenancy in his favour.

Section 4 deals with the determination of fair rent ands. 5 with lawful increase of or addition to or reduction in fair rent.

Section 6 prohibits the landlord from claiming or receiving anything in excess of fair rent or agreed rent. Section 7 deals with issue of receipts for rent.

Sections 7 A and 7-B deal with the right of tenant to deposit rent in certain cases and time for deposit and savings. Section 7-C deals with eviction of tenant 1n occupation of a house under an allotment order. Section 8 deals with eviction of tenants and provides that a tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of s.7-C or of this section. Sub-section (2) provides the circumstances in which a landlord would be entitled to seek eviction of a tenant in possession.

For instance, a landlord is entitled to evict a tenant if the tenant has not tendered or paid the rent due by him in respect of the premises within the time fixed in the agreement of tenancy with the landlord

-011 in the absence of any such agreement, by the last day of the month next following that for which the rent is payable; if he has transferred his right under the lease or sublet the entire premises or any portion thereof; or med the premises for the purpose other than that for which they were leased; or if the tenant ha~ committed such acts of waste as are likely to impair materially the value or utility of the house; or if the tenant has without the landlord's consent in writing erected on the hou, e or any portion thereof aRy permanent structu; e; or if the tenant or any person residing with the tenant has been guilty of such acts and conduct as amounts to nuisance or annoyanc" to the adjoining or neighbouring occupiers

,_ •

A or has been using the house or allowing the house to be used for immoral or illegal purposes; or that the house is reasonably and bona fide required by the landlord for carrying out repairs or reconstruction which cannot be carried out without the house being vacated; or that the house has not been used without reasonable cause for the purpose for which it was let for a continuous period B of three months immediately preceding the date of application; or that the tenant, after the commencement of the Act, has built, .acquired vacant possession of or been allotted a suitable house.

We have set out these conditions in detail because it would be relevant to consider whether in view of these conditions a tenant can be said to have a right to possession of the premises of which he is a tenant. Then we come to sub-s. (3) (a) which reads as follows:

"(3)(a) A landlord may, subject to the provisions of clause ( d) apply to the court for an order directing the tenant to put the landlord in possession of the hoJJse-

(i) in case it is a residential building, if the landlord requires it for his own occupation or for the occupation of a member of his family and ifhe or such member, as the case may be, is not occupying a residential building of his own in the city, town or village concerned;

(ii) in case it is a non-residential building, if the landlord requires it for a business which he or a member of his family is carrying on and if for the purposes of the said business is not in occupation of a non-residential building which is owned by or to the possession of which the landlord or such member, as the case may be, is entitled whether under this Act or otherwise."

It is not necessary to set out the Explanation or the first proviso but the second proviso is relevant and runs thus:

"Provided further that where a landlord has obtained possession of a house for his own use or occupation or for the use or occupation of a member of his family under this clause he shall not be entitled to apply again under this clause-

(i) ..... .

(ii) for possession of another non-residential building of his own, for himself or for the same member of his family, in case he ha!i obtained possession of a nonresidential building." The Madras High Court held in V. Thannappa Chetty v.

Arco/ Govindaswami Naicker (') that the tenant under the Madras

(I) A, I.R. 1952 Mad. 553 at p. 554-555.

8 .. ,

, J

SUPREME COURI REPORTS

(1966] 3 S<.R.

Buildings (le:isc and Rent Control) Act (Madra' Act 15 of 1946) had a right to possession unless and until he was evicted under the provisions of the Madras Act, and, therefore, the landlord would not be entitled to possession of a non-residential building if he was. in possession of another non-resi.dential building as a tenant, for in such a case he would he entitled to possession of those premises. The reasoning of Subba Rao. J., then a Judge of the lli!!h Court of !Vladras, was as follows:

"It will. therefore, he seen that the relationship hctwccn the landlord and tenant even in cases in which such rc13tionship terminated under the provisions of the Transfer uf Property Act. conlinues subject to the provisions of the Act. The rights of the tenants as well as the landlord arc defined. The tenant under the Act has a right to possession unless and until he is evicted under the provisions of the Act.

Under the provisions of the Act, a landlord will not be entitled to the possession of his non-residential buildings, if he ohtains an order for eviction against another tenant in respect of another non-residential building, or if he is in possessi<>n of another non-residential building as a tenant; for in either case he is entitled to possession of that premises. 1 he words used in the section, viz., "to the possession of which he is entitled" are wide and I do not see any reason why the latter category should be e\cluded from the express words used which in their ordinaT\ meaning take in !hat class." "It was argued that a statutory immunity is differenl from a right to possession.

Hut in my view a statutory immunity is not inconsistent with a right to possession.

The statutory immunity itself creates a right in him to continue in possession till he is evicted under the provisoins of the Ac1." The Mysore High Court dissented from this decision of the Madras High Court, and the reasoning of Ahmed Ali Khan. J .. in S. G. Narayanappa and Bros. v. A. N. Narasimhiah(') is as under:

"After a careful consideration of the arguments advanced before me. I am of the opinion that the provision of the Act on the strength of which a tenant may resist the landlord's claim to evict him cannot be described as a right to possession, but only as a statutory immunity from eviction as observed by the Federal Court in the case Kai

Khushrdo v. Bai Jerbai. (2).

It appears that his Lordship in the Madras case distinguished the said observations in the said case of the Federa Court by stating that a statutory immunity is not inconsistent with the right to posses- (\) 1196ifMy;:-(~ J 76:.i

12) A. I. R. l'l49 F. C. 1:!4 (l!!liJ.

A ..

... •

It ..

sion and that such immunity may itself create a right. The right to immunity from eviction involves a negative element in it. In other words it restricts the right of possession of the landlord. Hence, it cannot be construed to have an effect of creating a right of possession to a tenant.

Though the statutory immunity from eviction may not be consistent with the right to possession, the fact remains in view of the inherent element involved in both the rights, that the immunity from eviction cannot be equated to the right to possession. Therefore, with great respect, I am of the view that we will not be justified in adopting the strict view while interpreting the words which occur in s. 8(3) (a)(ii) of the Mysore House Rent and Accommodation Control Act, as taken in the Madras ruling cited above."

In our opinion, with great respect to Subba Rao, J ., Ahmed Ali Khan, J., arrived at the correct conclusion. A tenant who can be evicted under the conditions prescribed in s. 8(2) of the Act cannot be said, in our view, to be entitled to the possession of the premises of which he is a tenant. No doubt he cannot be evicted till one or more of the conditions prescribed by the section are fulfilled, but it is difficult to equate his right to stay in the premises till he is evicted to an entitlement of the possession of the premises. Section 8(3)(a)(ii) deals with two types of cases; first where the landlord is in occupation of a non-residential building which is owned by him, and secondly, a non-residential building of which he is in occupation not as a landlord but otherwise. The object of the Act is to prevent unreasonable evictions of tenants.

Can it be said that the Legislature is considering it to be unreasonable for a landlord to shift to his own premises while he is in occupation of tenanted premises over which he has not an absolute right of possession but only a right to remain in possession till one of the conditions in s. 8(2) is satisfied, and over one of .which he has no control. For instance, the landlord may require the premises for repairs or reconstruction or the neighbours may complain that the tenant is guilty of nuisance "ir annoyance, or the landlord may think that the tenant has committed some acts of waste as are likely to impair materially the value or utility of the house. If any of these conditions is proved, he is liable to be evicted. In our view, in the context the words "entitled to possession" have a more positive content and are more akin to the right of possession which an owner has in respect of the building owned and occupied by him.

In conclusion we are of the view that the High Court was right in holding that the Additional District Judge erred in not following the decision of the Mysore High Court in S. G. Narayanappa and Bros. v. A. N. Narasimhiah.(1)

(!) (1962) Mys. L.J. 760.

M12Sup.C.l./66-!0

There is no force in the second point raised by the learned counsel of the tenant. It is true that the jurisdiction of a High Court under provisions similar to s.17 of the Act is limited, but we cannot say that the High Court was wrong in holding that the

Additional District Judge acted with material irregularity in not following the decision of the Mysore High Court when that decision had been rendered in a case arising from an earlier order of the same Additional District Judge. It may be that this decision was not pointed out to the Additional District Judge but we cannot, in exercise of our jurisdiction under Art. 136 of the Constitution, say that the High Court should not have set aside the order of the Additional District Judge on this ground.

In the result the appeal fails and is dismissed with costs.

The tenant is granted two months' time from today to vacate and deliver possession of the premises in dispute to the landlord.

Appeal dismissed.

M. PADMANABHA SETTY

K. P. PAPIAH SETTY

P. B. GAJENDRAGADKAR, C.J.

K.N. WANCHOO

C. SHAH

s. 8(3)

s. 8(3)(a)

s. 8(3)(a)(ii)

s. 17

s. 8(2)

S. K. Venkatarangaiengar

G. L. Sanghi

B.

Dadacl1anji

O. C. Mathur

Ravinder Narain

Mirle N. Lakshminaraynappa

P. Malhotra

S. S. Khm1d11ja

Ganpat Rai

Sikri

High Court of Mysore

s. 17

Bangalore

Padmanabha Setty

Bangalore City

K. P.

Papiah Setty

s. 8(3)(a)(ii)

Mysore High Court

s. 17

s. 8(3)(a)

Madras High Court

s. 2

Section 4

Section 6

Section 7

Sections 7

Section 7

Section 8

Subba Rao

Ahmed Ali Khan

Madras

s. 8(3)

s. 8(2)

Section 8(3)(a)(ii)

s. 8(2)

Art. 136


•• H

GHANSHIAM DAS

v .

DEVI PRASAD & ANOTHER

March ll, 1966

[K. SUBBA RAO, V. RAMAsWAM! AND J. M. SHELAT JJ.]

U.P. Zamlndarl Abolition and Land Reforms Act (U.P. Act I of 1951), s. 9-Brick kiln whether 'building' within meaning of section

The respondents owned a brick kiln which they leased out to the appellants in 1950. They filed a suit against the appellants claiming rent for the period October 1, 1952 to September 30 1953. The appellants contended in defence that as a result of the operation of the U.P. Zamindari Abolition and Land Reforms Act the Land in question stood vested in the State of U.P. with effect from July 1, 1952 and no rent was payable

ID the respondents thereafter. The suit was partly decreed by the trial oourt but dismissed in toto by the first appellate court. In second appeal the High Court held that th~ brick kiln was a 'building' within the meaning of s. 9 of the Act and therefore the land did not vest in the State.

The appellants came to this Court.

HELD : In the absence of a definition in the Act itself the question as to what is a 'building' under s. 9 must always be question of degree-- a question depending on the facts ancl circumstances of each case. The brick kiln in the present case was a mere pit with some bricks by its aides. It could not be said to be a 'building' within the meaning of s. 9 of the Act and the High Court therefore went wrong in holding that the land did not vest in the State. [878 E-F, HJ

R. v. Neath Canal Navigation, 40 L.J.M.C. 197, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 80 and 81 of 1964. ·

Appeals by special leave from the judgment and decree dated the October 24, 1960 of the Allahabad High Court in Second Appeals Nos. 2510 and 2511 of 1957.

S. P. Sinha and M. I. Khowaja, for the appellant.

J.P. Goyal, for the respondents

The judgment of the court was delivered by

Ramaswami, J. Thequestionoflawinvolvedin these appeals is whether the disputed brick kiln on plots nos. 596 and 597 in Mauza Sarwat, Pargana and District Muzaffarnagar and leased out to the appellant is a "building" within the meaning of s. 9 of the U.P. Zamindari Abolition and Land Reforms Act (U.P.

Act I of 1951).

The respondents are the owners of a brick kiln located on the two plots nos. 596 and 597 in Mauza Sarwat, Pargana and District Muzaffarnagar.

They leased out the brick kiln to the 875

SUPREMB COURT REPORTS

[1966) 3 S.C.R.

appellant under a registered lease deed dated December 29, 1950.

A The lease was to take effect from January I, 1951 and terminate oo September 30, 1953. The rent was fixed at Rs. 41 per mensem payable annually in the month of October. The rent for tho period October l, 1952 to September 30, 1953 remained duo qainst the appellant. The respondents filed a suit (no. 1125 of 1953) in the Court of Munsif Muzaffarnagar for the rccoveryjB of Rs. 492 being arrears of rent from October l, 1952 to September 30, 1953. The suit was contested by the appellant who pleaded that after the passing of the U.P. Zamindari Abolition aild Land Reforms Act (U.P. Act I of 1951)-hereinafter called the 'Act' -the plots of land had vested in the State of U.P. under

e. 6 of tho Act with effect from July I, 1952 and the respondenta were, therefore, not entitled to claim any rent from the appellant C By his judgment dated February 12, 1955 the Additional Munsif,

Muzaffarnagar held that the brick kiln did not vest in the State and uitoccupiedonly I/3rd of the total area of the land, the respondents were entitled to a decree for I /3rd of the rent claimed. Tho

Munsif accordingly granted a decree for a sum of Rs. 164 and/( dismissed the balance of the claim of the respondentJ. Against D the judgment of the Additional Munsif both the parties filed appeals before the District Judge.

Both the appeals were disposed of by the Civil Judge of MuzatTarnagar by a common judg. ment dated August 19, 1957. It was held by the Additional Civil Judge that the brick kiin could not be regarded as a "building'' within the meaning of s. 9 of the Act and the entire area of the .. two plots nos. 596 and 597 had vested in the State. The Additional Civil Judge accordingly allowed the appellant's appeal and dismissed the appeal of the respondents. The net result W8! that the suit of the respondents for arrears of rent was dismissed!/

as a whole.

Against the judgment of the Additional Civil Judge the respondents filed two Second Appeals nos. 2510 and 2511 of 1957 to the High Court. The High Court held that tho F brick kiln was a "building" within the meaning of s. 9 of the Act and the title to the two plots of land did not vest in the State and the respondents acquired the righs of statutory tenants under

1. 9 of the Act and they had a right to demand rent from the appellant under the tcnns of the lease. The High Court accordingly allowed both the Second Appeals and granted a decree G to the respondents for the entire amount of rent claimed.

Section 4 of the Act deals with the acquisition of the interest. of intermediaries. The section provides as follows :

"4. (I) As soon as may be after the commencement of this Act the State Government may, by notification, H declare that as from a date to be specified, all estates situate in lJttar Pradesh shall vest in the State and, as from tho

A beginning of the date so specified (hereinafter called the date of vesting), all such estates, shall stand transferred to and vest, except as hereinafter provided, in the State free from all encumbrances.

(2) It shall be lawful for the State Government, if it so considers necessary, to issue, from time to time, the notification referred to in sub-section (1) in respect only of such area or areas as may be specified and all the provisions of sub-section (1) shall be applicable to and in the case of every such notification."

Section 6(a) sets out the consequences of the vesting of an estate in the State. Section 6(a) reads as follows :

"6. When the notification under s. 4 has been published in the Gazette, then, notwithstanding any thing contained in any contract or document or an any other law for the time being in force and save as otherwise provided in this Act, the consequences as hereinafterset forth shall, from the beginning of the date of vesting, ensue in the area to which the notification relates, namely :...:.: .

(a) all rights, title and interest of all the intermediarics-

(i) in every estate in such area including land (cultivable or barren), grove-land, forests whether within or outside village boundaries, trees (other than trees in village abadi, holding or grove), fisheries, tanks, ponds, water-channels, ferries, pathways, abadi sites, hats, bazars and melu other than hats, bazars, and melas held upon land to which clauses (a) to (c) of sub-section ( 1) of section 18 apply and,

(ii) in all sub-soil in such estate including rights, if any, in mines and minerals, whether being worked or not;

shall cease and be vested in the State of Uttar

Pradesh free from all encumbrances;"

Section 9 of the Act states :

"9. All wells, trees in abadi and all buildings situate within the limits of an estate, belonging to or held by an intermediary or tenant or other person, whether residing in the village or not, shall continue to belong to or be held by such intermediary, tenant or person, as the case may be, and the site of the wells or the buildings with the area

SUPREME COURT REPORTS

[1966] 3 S.C.R.

appurtenant thereto shall be deemed to be settled with A him by the State Government on such tenns and conditions as may be prescribed."

The word "building" bas not been defined in the Act and must, therefore, be construed in its ordinary grammatical sense unless there is something in the context or object of' the statute to show that. it is used in a special sense different from its ordinary grammallcal sense. In Websters New International Dictionary the word "building" has been defined as follows :

"That which is built specif : (a) as now generally used a fabric or edifice, framed or constructed, designed to •land more or less pennanently, & covering a space of land for use as a dwelling, store house, factory, shelter for beasts or liome other useful purpose. Building in this sense does not include a mere wall, fence, monument, hoarding or 1imilar structure though designed for pennanent use where it stands, nor a steamboat, ship or other vessel of navigation."

From this definition it does not appear that the existence of a roof ia always necessary for a structure to be regarded as a building.

It.ecidcntial buildings ordinarily have roofs but there can be a non-residential building for which a roof is not necessary. A large stadium or an open-air swimming pool constructed at a considerable expense would be a building as it is a permanent structure and designed for a useful purpose. The question as to what is a "building" under s. 9 of the Act must always be a question of degrcoa question depending on the facts and circumstances of each caae.

Al Blackburn, J. observed in R. v. Neath Canal Navigation ( 1) :

"The masonry on the sides of a canal is not sufficient to constitute it a 'building'. A London street, though paved and faced with stonework, would yet be 'land', whilst the Holborn Viaduct would be a 'building'."

The question for determination in the present case, therefore, is whether the kiln leased out to the appellant is a "building" within the meaning of s. 9 of the Act. It has been found by the lint appelate court that the brick kiln has no site and is not a roofed structure. It was a mere pit with some bricks by its sides. It is also admitted in this case that there was no structure standing on the Bhatia. Upon these facts, it is clear that the brick kiln has no walls and no roof but it is a mere pit dug in the ground with bricks by its side. In the circumstances, we are of the opinion that the brick kiln leased out to the appellant, in the present case, is not a "buil-

(1) 40 L J.M. C. 197.

~ . ·-

A ding" within the meaning of s. 9 of the Act. It follows, therefore that the title to both the plots nos. 596 and 597 along with the brick kiln vested in the State Government with effect from July l, 1952 and ,_, the respondents are not entitled to claim any rent from the appellant for the period from October l, 1952 to September 30, 1953.

B For the reasons expressed, we hold that suit no. Jl25 of 1953 filed by the respondents should be disinissed and these appeals must be allowed with costs. ' Appeal a/lo.wed.

H

GHANSHIAM DAS

DEVI PRASAD & ANOTHER

K. SUBBA RAO

M. SHELAT JJ.

s. 9

July 1, 1952

s. 9

s. 9

s. 9

Allahabad High Court

S. P. Sinha

M. I. Khowaja

J.P. Goyal

Ramaswami

s. 9

Munsif Muzaffarnagar

State of U.P.

February 12, 1955

Civil Judge of MuzatTarnagar

August 19, 1957

s. 9

s. 9

Section 4

lJttar Pradesh

Section 6(a)

Section 6(a)

s. 4

section 18

Uttar

Pradesh

Section 9

s. 9

Al Blackburn

s. 9

s. 9


STATE OF MAHARASHTRA

NARHARRAO March 14, 1966

(K. SUBBA RAo, V. RAMASWAMI AND J. M. SllELAT, JJ.j

Bombay PoUce Act (22 of 1951), s. 161(1)-"Undtr colour or In excas of any suc/J duty or authority .. , meaning of.

'Ibo respondent, a head constable, was charged under s. 161, Indian Peul Code, and s. 5(1) (b) and (2) of the Prevention of Corruption Act, for accepting a bribe for weakening a prosccutioo case.

He was convicted by the u:a1 coun, but the High Court allowed the appeal on the ground that under s. 161(1) of the Bombay Police Act 1951, the prosecution was barred having been launched more than six months after the date of the alleged offence.

In appeal to this Court, HE!LD : The High Court was m error, because, the benefit of the aix months period of limitation i• available only when the allC!(ed act of the officer was one done under colour t>f the duty imposed or tho authority conferred on him by any provision of law, or in excess of any auch duty or authority.

Unleas there is a reasonable connection between the act complained of and the powers and duties of the office, it cannot be said that tho act was done by the accused omcer under the colour of bis office. (882 E; 883 CJ

The State o; Andhra Prades/1 v. N. Venuropal ll1ld On., [1964) 3 S.C.R. 742. followed.

Vlrupaxappa Veerqpa Kadampur '' Stale of Mytore, (1963) Supp. 2 S.C.ll. 6, referred to.

CRIMINAL APPELi.A TP. JURJSDICllON : Criminal Appeal No. 214 of 1964.

Appeal by special leave from the judgment and order datecl I' the November 11, 1963 of the Bombay High Court (Nagpur Bench) at Nagpur in Criminal Appeal No. 153 of 1963.

R. M. Hazamai•is, R. H. Dliebar and B. R. G. K. A char, for the appellant.

M. S. K. Sastri, for the respondent.

The Judgment of the Court was delivered by

Ramaswami, J. This appeal is brought, by special leave, from the judgment of the High Court of Bombay, Nagpur, Bench dated November II, 1963 in Criminal Appeal no. 153of1963. ..

The respondent Narharrao, a police Head Constable was attached to the Murtizapur Police Station in September, 1962.

He was investigating offences under ss. 110, 102 and 117 of the

. -·

Bombay Police Act against two persons, viz., Onkar and Harihar.

It is alleged that Onkar and Harihar approached Narharrao for showing them some favour. The latter demanded Rs. 25 as a bribe for weakening the prosecution case which was to be launched against Onkar and Harihar. The respondent accepted Rs. 5 on or about October 14, 1962 and Rs. 10 on or about October 19, 1962 as illegal gratification. The respondent was tried in the Court of the Special Judge, Akola for accepting bribe under s. 161, Indian Penal Code or alternatively for committing criminal misconduct in the discharge of his duties which is punishable under s. 5(2) read with s. 5(1)(b) of the Prevention of Corruption Act.

By this judgment dated June 25, 1963, the Special Judge held the respondent guilty of both the offences and sentenced him to rigorous imprisonment for one year and also to pay a fine of Rs. 200 .or in default to a rigorous imprisonment for a further period of 3 months.

The respondent filed an appeal in the High Court, being Criminal Appeal no. 153 of 1963. The High Court allowed the appeal on the ground that s.161(1) of the Bombay Police Act was a bar to the prosecution of the respondent. The High Court did not discuss in detail the question as to whether there was sufficient evidence to support the conviction of the respondent on merits but acquitted him on the technical ground that no prosecution could be launched more than six months after the date of the alleged offence, as required under s.161(1) of the Bombay Police Act.

The question of law presented for determination in this appea is whether the alleged act of offence was committed by the respondent "under colour or in excess of any such duty or authority as aforesaid" within the meaning of s. 161(1) of the Bombay Police.

Act (Bombay Act 22 of 1951).

Section 159 of this Act provides as follows :

F "159. No Revenue Commissioner, Magistrate or Police Officer shall be liable to any penalty or to payment of damages on account of an act done in good faith, in pursuance or intended pursuance of any duty imposed or any authority conferred on him by any provision of this Act or any other law for the time being in force or any G rule, order or direction made or given therein."

Section 160 enacts :

"160. No public servant or person duly appointea or authorised shall be liable to any penalty or to payment of any damages for giving effect in good faith to any such order or direction issued with apparent authority by the State Government or by a person empowered in that behalf under this Act or any rule, order or direction made or given thereunder."

ss2

SUPREME COURT REPORTS

(1966] 3 S.C.R.

Section 161 (I) states as follows :

"161. (I) Jn any case of alleged offence by the Revenue Commissioner, the Commissioner, a Magistrate, Police Officer or other person, or of a wrong alleged to have been done by such Revenue Commissioner, Commissioner, Magistrate, Police Officer or other person, by any act done under colour or in excess of any such duty or authority as aforesaid, or wherein, it shall appear to the Court that the offence or wrong if committed or done was of the character aforesaid, the prosecution or suit shall not be entertained, or shall be dismissed, if instituted, more than six months after the date of the act complained of."

It is manifest that in order that the accused person against whom a prosecution has been launched may get the benefit of six months period of limitation under the section, it must appear to the Court ·(I) that the offence was committed under colour of any duty imposed or any authority conferred by any provisions of the Bombay Police Act or any other law for the time being in force, or (2) that the act was done in excess of any such duty or authority as aforesaid.

The question arising in this case, therefore, is whether the alleged act of the respondent in accepting bribe was an act done under colour of the duty imposed or the authority conferred on the respondent by any provision of law or in excess of any such duty -or authority as aforesaid. In examining this question it is necessary,

in the first place, to ascertain what act is complained of and then to see if there is any provision of the Bombay Police Act or any other law under which it may be said to have been done or purported to have been done. In this connection, it is important to 'femember that an act is not done under colour of an office merely because the point of time at which it is done coincides with the point of time the accused is invested with the powers or duty of the office. To be able to say that an act was done under the colour -of an office one must discover a reasonable connection between the act alleged and the duty or authority imposed on the accused by the Bombay Police Act or other statutory enactrD; ent.

Unless there is a reasonable connection between the act complained of and the powers and duties of the office, it is diffi.cult to say that the act was done by the accused officer under the colour of his office.

For example, if a police officer is prosecuted for an offmce under s. 323 of the Indian Penal Code said to have been com!Illtted

in making an arrest, the prosecution must fail unless c?mmenced H within six months of the act complained of, as reqmred by s. 161(1) of the Bombay Police Act. Again, if the prosecution is for an offence under ~. 304, Indian Penal Code said to have been com-

...

,.,

A mitted in the process of dispersing an unlawful assembly under s. 128 of the Criminal Procednre Code, the limitation provided under s. 161(1) of the Bombay Police Act will apply. Similarly, if the prosecution is for an offence under s. 341 of the Indian Penal Code said to have been committed by the Act of closing a street or passage in or near which a fire is burning in exercise of the powers B under s. 152 of the Criminal Procedure Code, or for an offence under s. 426 of the Indian Penal Code, said to have been committed by the pulling down of a house for the purpose of extinguishing a fire, the prosecution must fail unless brought within the period prescribed under s. 161(1) of the Bombay Police Act.

But unless there is a reasonable connection between the act complained of and the powers and duties of the office, it cannot be said that the act was done by the accused officer under the colour of his office. Applying this test to the present case, we are of the opinion that the alleged acceptance of bribe by the respondent was not an act which could be said to have been done under the colour of his office or done in excess of his duty or authority within the meaning of s. 161(1) of the Bombay Police Act. It follows, therefore, that the High Court was in error in holding that the prosecution of the respondent was barred because of the period of limitation prescribed under s. 161(1) of the Bombay Police Act. The view that we have expressed is borne out by the decision of this Court in The State of Andhra Pradesh v. N. Venugopal and others (1) in which the Court had construed the language of a similar provision of s. 53 of the Madras District Police Act (Act of 24 of 1859). It was pointed out in that case that the effect of s. 53 of that Act was that all prosecutions whether against a police officer or a person other than a police officer (e.g. a member of the Madras Fire Service, above the rank of a fireman acting under s. 42 of the Act) must be commenced within three months after the act complained of, if the act is one which has been done or intended to be done under any of the provisions of the Police Act. In that case, the accused police officers were charged under ss. 348 and 331 of the Indian Penal Code for wrongly confining a suspect Arige Ramanna in the course of investigation and causing him injuries. The accused were convicted by the Sessions Judge under ss. 348 and 331 of the Indian Penal Code but in appeal the Andhra Pradesh High Court held that the bar under s. 53 of the Police Act applied and the accused were entitled to an acquittal. It was, however, held by this Court that the prosecution was not barred under s. 53 of the Police Act, for it cannot be said that the acts of beating a person suspected of a crime or confining him or sending him away in an injured condition by the police at a time when they were engaged in investigation are acts done or intended to be done under the provisions of the Madras District Police Act or Criminal Procedure Code or any other law

(I) (1964] 3 S.C.R. 742.

884 SUPREME COUllT REPORTS [1966] 3 S.C.ll.

conferring powers on the police. The appeal was accordingly allowed by this Court and the acquittal of the respondent set aside.

On behalf of the respondent reference was made to the decision of this Court in Virupaxappa Veerappa Kadampur v.Stateof Mysore(,').

But the ratio of that decision is not applicable to the present case.

In that case, a police officer authorised under the Bombay Prohibition Act to seize smuggled Ganja, prepared a false Panchnama and a false report as regards the seizure of the Ganja and it was held by this Court that the provisions of s. 161(1) of the Bombay

Police Act were applicable. It is clear that in that case it was the duty of the police Head Constable to prepare a Panchnama and the act of preparation of false Panchnama was, therefore, done under the colour of his office. There was hence a nexus between the act complained of and the statutory duty that the police Head Constable was to perform and the provisions of s. 161(1) of the Bombay Police Act were applicable. In the present case the material facts are quite different.

For the reasons expressed, we allow this appeal, set aside the judgment of the High Court acquitting tile respondent and order that the appeal should go back in remand to the High Court for being re-heard and dealt with in accordance with law.

Appeal allowed

-··---·- (ll%i1 Supp. 2 s.c.R.6

D •

STATE OF MAHARASHTRA

NARHARRAO

March 14, 1966

K. SUBBA RAo

V. RAMASWAMI

Bombay PoUce Act

s. 161(1)

s. 161

Indian Peul Code

s. 5(1)

Prevention of Corruption Act

s. 161(1)

Bombay Police Act 1951

[1964) 3 S.C.R. 742

R. M. Hazamai•is

R. H. Dliebar

B. R. G. K. A char

M. S. K. Sastri

Ramaswami

High Court of Bombay, Nagpur

Narharrao

ss. 110, 102 and 117

Bombay Police Act

Onkar

Harihar

Narharrao

October 14, 1962

October 19, 1962

Special Judge, Akola

s. 161

Indian Penal Code

s. 5(2)

s. 5(1)(b)

Prevention of Corruption Act

Police Act

Police Act

s. 161(1)

Section 159

Section 160

Section 161

Police Act

Police Act

Police Act

s. 323

Indian Penal Code

s. 161(1)

Police Act

Indian Penal Code

s. 128

s. 161(1)

Police Act

s. 341

Indian Penal Code

s. 152

s. 426

Indian Penal Code

s. 161(1)

Police Act

s. 161(1)

Police Act

s. 161(1)

Police Act

s. 53

Police Act

s. 53

Madras Fire Service

s. 42

Police Act

ss. 348 and 331

Indian Penal Code

Arige Ramanna

ss. 348 and 331

Indian Penal Code

Andhra Pradesh High Court

s. 53

Police Act

s. 53

Police Act

Police Act

(1964] 3 S.C.R. 742

s. 161(1)

Police Act

s. 161(1)

Police Act