Monday, April 30, 2012

Right to Education (RTE) Act and Private Schools

As per the RTE Act, out of total 1,045 private schools in the city, only 450 have submitted applications for recognition before April 21, the deadline for application set by the Education Department.
“It was a mandate for the private schools, both existing and new, to apply for recognition, afresh. Following RTE, irrespective of the fact whether they are already recognised with the state Education Department or not, all the private schools had to apply for recognition. This was well publicised and uploaded on the official website of the department,” said District Education Officer (DEO) R I Patel.
According to the DEO, the private schools were given one-month time for applications as the recognition forms were released as well as uploaded on the website on March 24, while the deadline was April 21. The fee was decided in two slabs by the department. The new schools had to pay Rs 1,000, while for the existing ones it was Rs 500 as application fee.
About the schools who had failed to submit applications, the DEO clarified that the defaulters have to now approach the state government through Principal Secretary Primary Education. “No application will be entertained at the DEO office after the last date,” added Patel.
After receiving these applications, the department is open for inspection to these schools confirming the facts as certified by the schools to be correct. Thus, recognition will be awarded to these schools complying these norms.
Already, there is a lot of debate going on within the education fraternity as well as between state government on reservation of 25 per cent seats for Economically Weaker Section (EWS) in private schools. Being the major bone of contention, financial as well social implications concerning this reservation are being discussed at length.

Gujarat HC rejects passport agents’ plea for login facility over security

A division bench of Gujarat High Court (HC) recently dismissed a petition by an association of passport agents who had demanded a direction to the authorities to allow them to have a log-in facility in their names to submit passport applications on behalf of their clients even in the recently introduced Passport Seva Kendra Scheme which has completely changed the process of issuance of passports while curtailing the role of passport agents.

The petitioner organisation has been identified as Association of Recognised Passport Agents of Gujarat. The association had challenged a single-judge bench order of the HC that had dismissed its petition challenging the provisions of the scheme that are curtailing their roles in the passport issuance process.

Following that the organisation had preferred an appeal before a division bench. And a division bench of the HC comprising of Justices V M Sahai and A J Desai passed an order recently on their appeal while dismissing the same.

According to the details, the central government has completely changed the passport issuance process while introducing Passport Seva Project. Under the new scheme, the person who wants to have a passport has to personally appear before a Passport Seva Kendra.

Earlier, the passport agents were recognised by the Ministry of External Affairs and they also used to submit the forms on behalf of their clients to get the passport. In the new scheme, the passport agents have not been included.

With their roles curtailed, the petitioner organisation approached the HC with a prayer that they be given a separate login facility to submit forms on behalf of their clients. However, this prayer was dismissed by the division bench also while observing that the national security is of paramount importance.
The petitioner organisation had pressed for their demand while arguing that they have been carrying business as agents for last 50 years and therefore their livelihood was going to be affected.

The central government had opposed the petition on a number of grounds. One of them being the issue of national security. The central government counsel contended that there are many instances when fraudulent persons have managed to obtain passports.

Dismissing the petition the bench observed, “The passport is a very important instrument which permits an Indian Citizen to travel beyond the country and, therefore, before issuing such important instrument, the authority has to scrutinise the application for passport in detail since it is a matter of national security. It is a fact of common knowledge that large number of persons travel beyond the country on fake passports which are prepared in the name of bogus/dummy persons.”

“In view of this aspect, if the Government decides that the person, who is interested in getting passport, shall file the application in his own name having sufficient details about himself/herself, the same is not prejudicial to anybody,”

Sunday, April 29, 2012

CHAUGULE v. BHAGWAT [2012] EssenSC 215 (4 April 2012)

Judgement REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.3373 OF 2012 (Arising out of SLP(C)No.5776 of 2012)

CHAUGULE v. BHAGWAT

ALTAMAS KABIR, J.

1. Leave granted.


2. The Appellant herein was elected to the Maharashtra Legislative Assembly from the 240-Omerga Legislative Assembly Constituency, which was reserved for a Scheduled Caste candidate. His election was challenged by one Shri Yadavrao, son of Bhimrao Suryawanshi, who was also a Scheduled Caste candidate. In order to contest the elections, the said Shri Yadavrao had filed three nomination forms which were all rejected by the Returning Officer on the ground that the proposerb

3. On 26th September, 2009, Shri Yadavrao filed Writ Petition No.6474 of 2009, challenging the rejection of his nomination form which had been submitted by him as an independent candidate. On 1st October, 2009, the High Court allowed the Writ Petition and quashed the order of the Returning Officer. The order of the High Court was challenged by the Election Commissioner before this Honb

4. The elections were conducted on 22nd October, 2009, and the Appellant herein was declared elected from the said Constituency. Shri Yadavrao challenged the Appellantb

5. Within 14 days of the said order having been passed, on 8th December, 2010, the present Respondent, Bhagwat, son of Maruti Danane, filed Civil Application No.35 of 2010 under Section 110(3)(c) of the Representation of the People Act, 1951, hereinafter referred to as the b Such application was filed by Shri Bhagwat for substituting his name as the Election Petitioner in place of Shri Yadavrao, despite the fact that he had neither filed any nomination paper, nor contested the election.

Furthermore, he did not even allege any corrupt practice against the Appellant, but filed the said Application No.35 of 2010, only on the ground that he was entitled to continue with the Election Petition under Section 116 of the 1951 Act.


6. After considering the submissions made on behalf of the respective parties regarding the right of the Respondent to be substituted in the Election Petition filed by Shri Yadavrao, the High Court held that on a conjoint reading of Section 78(b), Section 81(1) and Section 110(3)(c) of the 1951 Act, the Applicant, Shri Bhagwat, was entitled to be substituted in place of Shri Yadavrao for continuing the Election Petition, notwithstanding that the same had already been allowed to be withdrawn on the application filed by Shri Yadavrao under Section 110(3)(c) of the aforesaid Act. The present appeal is directed against the said order of the High Court allowing the application for substitution filed by Shri Bhagwat in the Election Petition which had been filed by Shri Yadavrao and had also been allowed to be withdrawn.


7. Appearing in support of the Appeal, Mr. Anant Bhushan Kanade, learned Senior Advocate, drew our attention to Section 81 of the 1951 Act, which deals with presentation of petitions. Section 81 provides that an Election Petition calling in question any election may be presented by any candidate at such election or any elector within the period specified. Mr. Kanade also drew out attention to Section 110 of the above Act, which indicates the procedure for withdrawal of Election Petitions which under Section 109 could be done only with the leave of the High Court. Placing reliance on clause (c) of Sub-Section (3) of Section 110, Mr. Kanade urged that it has been specifically indicated therein that a person who might himself have been a Petitioner, may within 14 days of the publication of the results, apply to be substituted as Petitioner in place of the party withdrawing, and upon compliance with the conditions, if any, as to security, would be entitled to be so substituted and to continue the proceedings upon such terms as the High Court might deem fit.


8. Attempting to draw a distinction between the provisions of Section 110 and Section 116, which deals with abatement or substitution on death of the Respondent, Mr. Kanade pointed out that under Section 116 in the event of the death of the sole respondent, or giving notice that he did not intend to oppose the Petition or any of the Respondent dying or giving such notice that there is no Respondent who is opposing the Petition, the High Court is required to cause notice of such event to be published in the Official Gazette and thereupon any person who might have been a Petitioner (emphasis supplied) may, within 14 days of such publication, apply to be substituted in place of such respondent to oppose the Petition and would be entitled to continue the proceedings upon such terms as the High Court thought fit.


9. Mr. Kanade submitted that in the present case the provisions of Section 110 stood attracted and not 116, since this case involved withdrawal of the Election Petition by the Election Petitioner and is not a case of abatement or substitution on death of the Respondent. While in Section 110(3)(c) the expression b

10. Mr. Kanade, therefore, urged that the Respondent herein, who had been allowed to be substituted in place of the Election Petitioner, had not filed any nomination paper in the election in question and the High Court had misconstrued the expression b Kanade submitted that the aforesaid expression would have to be logically interpreted to apply to a given situation and that the present situation was not one such situation where such substitution should have been allowed.


11. On behalf of the Respondent it was submitted by Mr. K.V. Viswanathan, learned Senior Advocate, that the language of Section 110(3)(c) was very clear and that the expression b Viswanathan submitted that the High Court had rightly interpreted the aforesaid expression and, since, the Respondent had an interest in the elections in which the Appellant had been elected, he had every right to be substituted in place of the original Election Petitioner in terms of Section 110(3)(c) of the 1951 Act. Reference was made to the decision of wherein it had been held that the nomination paper, even if defective, could not be rejected by the Returning Officer at the inception and that the Returning Officer was required to accept the petition and, thereafter, to give an opportunity to the candidate to remove the defects and upon removal of the defects, to accept the same. Mr. Viswanathan contended that in the instant case the same not having been done, the rejection of the nomination paper of the original Election Petitioner, Shri Yadavrao, was erroneous and the election, therefore, stood vitiated and the election of the Appellant was, therefore, liable to be set aside.


12. Having considered the submissions made on behalf of the respective parties, we are unable to sustain the judgment of the High Court or to accept the submissions made by Mr. Viswanathan on behalf of the Respondent.


13. In the very beginning it may be stated that Section 81 of the 1951 Act disqualifies the Respondent from maintaining an election petition, since he was not entitled to invoke any of the grounds set out in Sections 100(1) and 101 of the 1951 Act.


14. As indicated hereinbefore, Section 110 refers to the procedure for withdrawal of the Election Petition and is extracted hereinbelow :

b (2) No application for withdrawal shall be granted if, in the opinion of the High Court, such application has been induced by any bargain or consideration which ought not to be allowed.

(3) If the application is granted- (a) the petitioner shall be ordered to pay the costs of the respondents therefore incurred or such portion thereof as the High Court may think fit;

(b) the High Court shall direct that the notice of withdrawal shall be published in the Official Gazette and in such other manner as it may specify and thereupon the notice shall be published accordingly;

(c) a person who might himself have been a petitioner may, within fourteen days of such publication, apply to be substituted as petitioner in place of the party withdrawing, and upon compliance with the conditions, if any, as to security, shall be entitled to be so substituted and to continue the proceedings upon such terms as the High Court may deem fit.b

15. As may be noticed, Clause (c) of Section 110(3) permits a person, who might himself have been a Petitioner, (emphasis supplied) to apply for substitution as Petitioner in place of the party withdrawing. However, as has been pointed out by Mr. Kanade, the said expression cannot be held to apply across the board in all cases, but has to fit in the facts of each case. In the instant case, the Election Petition filed by Shri Yadavrao was an action in personam and, was, therefore, confined to his own situation. Had it been an action in rem, the High Court may have been justified in substituting the Respondent in place of the original Election Petitioner. In the instant case, the complaint in the Election Petition was that the nomination paper of the Election Petitioner had been wrongly rejected by the Returning Officer. The Respondent herein, who had been substituted in place of Shri Yadavrao, did not have the same interest as Shri Yadavrao and, accordingly, the High Court, in our view, misconstrued the provisions of Section 110(3)(c) of the 1951 Act in applying the conditions literally, without even satisfying itself that the order fit in the facts of the case.


16. We are satisfied that the expression

17. We, therefore, have no hesitation in setting aside the judgment and order dated 28th November, 2011, passed by the Aurangabad Bench of the Bombay High Court in Election Petition No.5 of 2009 and Civil Application No.35 of 2010.


18. The appeal is, accordingly, allowed, but, there will be no order as to costs.

BHUSHAN KUMAR & ANR v. STATE(NCT OF DELHI) & ANR. [2012] EssnSC 209 (4 April 2012)

Judgement REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION 1 CRIMINAL APPEAL No. 612 OF 2012 (Arising out of S.L.P. (Crl.) No. 9953 of 2010)

Bhushan Kumar & Anr. .... Appellant(s)
Versus
State (NCT of Delhi) & Anr. .... Respondent(s)

WITH 2 CRIMINAL APPEAL No. 613 OF 2012 (Arising out of S.L.P. (Crl.) No. 9958 of 2010

P.Sathasivam,J.

1) Leave granted.

2) These appeals are directed against the final judgment and order dated 30.07.2010 passed by the High Court of Delhi at New Delhi in Crl.M.C. Nos.

3376 & 3375 of 2009 whereby the High Court rejected the prayer of the appellants herein for quashing the summoning order dated 16.01.2009 passed by the Metropolitan Magistrate in FIR No. 290 of 2002 registered at Police Station, Okhla Industrial Area, New Delhi under Section 420 of the Indian Penal Code, 1860 (hereinafter referred to as b 3) Brief facts:

a) The present cases pertain to a property dispute regarding distribution of the assets left behind by late Shri Gulshan Kumar (of T- Series fame). On 19.02.1998, a handwritten note was executed between the appellants and Respondent No. 2 wherein distribution of certain assets and shares in different companies was provided for. Subsequently, on 21.02.1998, a fresh agreement was entered into between the appellants and the Respondent No. 2 which superseded the handwritten note.

b) However, disputes arose soon after the above said second agreement dated 21.02.1998, giving rise to multifarious litigations at the behest of Respondent No. 2 which are presently pending adjudication before the High Court.

c) However, after 4 years, due to non-materialization of the agreement dated 21.02.1998, the Respondent No. 2 got registered the present FIR under Section 420 IPC against all the other signatories to the said agreement wherein only one of the signatory was a party to it. For quashing the said FIR, the appellants herein filed Crl.M.C. No. 59 of 2005 before the High Court.

d) On being informed by the State that chargesheet has been filed before the Magistrate, the High Court disposed of the Crl.M.C. No. 59 of 2005 vide order dated 30.03.2009 giving liberty to the appellants to take appropriate steps in case they are summoned.

e) By order dated 16.01.2009, the Magistrate summoned the appellants herein. Challenging the said summoning order, the appellants herein filed Criminal M.C. Nos. 3376 and 3375 of 2009 before the High Court.

f) By the impugned order dated 30.07.2010, the High Court rejected the prayer of the appellants for quashing the summoning order passed by the Magistrate. Aggrieved by the said order, the appellants have filed these appeals by way of special leave before this Court.

4) Heard Mr. Ranjit Kumar, learned senior counsel for the appellants and Mr. Vijay Aggarwal, learned counsel for respondent No.2.

5) The questions which arise for consideration in these appeals are:

(a) Whether taking cognizance of an offence by the Magistrate is same as summoning an accused to appear? (b) Whether the Magistrate, while considering the question of summoning an accused, is required to assign reasons for the same? 6) In this context, it is relevant to extract Sections 190 and 204 of the Code of Criminal Procedure, 1973 (hereinafter referred to as bCodeb b provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence ;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.b b taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be- (a) a summons-case, he shall issue his summons for the attendance of the accused, or (b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.

(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.

(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.

(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.

(5) Nothing in this section shall be deemed to affect the provisions of section 87.b 7) In S.K. Sinha, Chief Enforcement Officer vs. Videocon International Ltd. & Ors., (2008) 2 SCC 492, the expression bthis Court as it merely means breference to a court or a Judge, it connotes bjudiciallybjudicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons.

8) Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code.

9) A summon is a process issued by a Court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in Court. A person who is summoned is legally bound to appear before the Court on the given date and time. Willful disobedience is liable to be punished under Section 174 IPC. It is a ground for contempt of court.

10) Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued.

11) Time and again it has been stated by this Court that the summoning order under Section 204 of the Code requires no explicit reasons to be stated because it is imperative that the Magistrate must have taken notice of the accusations and applied his mind to the allegations made in the police report and the materials filed therewith.

12) In Kanti Bhadra Shah & Anr. vs. State of West Bengal (2000) 1 SCC 722, the following passage will be apposite in this context:

b write an order showing the reasons for framing a charge, why should the already burdened trial courts be further burdened with such an extra work. The time has reached to adopt all possible measures to expedite the court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all stages, the snail-paced progress of proceedings in trial courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages in the trialb (emphasis supplied) 13) In Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi & Ors. (1976) 3 SCC 736, this Court held that it is not the province of the Magistrate to enter into a detailed discussion on the merits or demerits of the case. It was further held that in deciding whether a process should be issued, the Magistrate can take into consideration improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. It was further held that once the Magistrate has exercised his discretion, it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused.

14) In Dy. Chief Controller of Imports & Exports vs. Roshanlal Agarwal &

Ors. (2003) 4 SCC 139, this Court, in para 9, held as under:

b not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board v. Mohan Meakins Ltd.(2000) 3 SCC 745 and after noticing the law laid down in Kanti Bhadra Shah v. State of W.B. (2000) 1 SCC 722, it was held as follows: (SCC p. 749, para 6) b situations such as dismissal of a complaint without issuing process.

There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order.b 15) In U.P. Pollution Control Board vs. Dr. Bhupendra Kumar Modi & Anr., (2009) 2 SCC 147, this Court, in paragraph 23, held as under:

b process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused.b 16) This being the settled legal position, the order passed by the Magistrate could not be faulted with only on the ground that the summoning order was not a reasoned order.

17) It is inherent in Section 251 of the Code that when an accused appears before the trial Court pursuant to summons issued under Section 204 of the Code in a summons trial case, it is the bounden duty of the trial Court to carefully go through the allegations made in the charge sheet or complaint and consider the evidence to come to a conclusion whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per Section 239 of the Code.

18) The conclusion of the High Court that the petition filed under Section 482 of the Code is not maintainable cannot be accepted in view of various decisions of this Court. (vide Pepsi Foods Ltd. & Anr. vs. Special Judicial Magistrate & Ors. (1998) 5 SCC 749, Dhariwal Tobacco Products Ltd.

& Ors. vs. State of Maharashtra & Anr. (2009) 2 SCC 370 and M.A.A.

Annamalai vs. State of Karnataka & Anr. (2010) 8 SCC 524).

19) In the light of the above discussion, we conclude that the petition filed before the High Court under Section 482 of the Code was maintainable.

However, on merits, the impugned order dated 30.07.2010 passed by the High Court of Delhi is confirmed, consequently, the appeals fail and the same are dismissed. In view of the dismissal of the appeals, MM/South East 02, Patiala House, New Delhi is free to proceed further in accordance with law, uninfluenced by any observation made in these appeals.

(P. SATHASIVAM)  
(J. CHELAMESWAR) NEW DELHI;

APRIL 4, 2012.

Journalists must know their limits: Supreme Court

The Supreme Court Thursday said it wanted journalists to know their limits in reporting court proceedings even as the central government favoured framing of guidelines for the media, claiming that the right to freedom of speech and expression was for the benefit of people and not the press.

Chief Justice S.H. Kapadia said that in the act of balancing the constitution’s Article 19(1)(a) (right to freedom of speech and expression) with Article 21 (right of life and accused’s right to fair trial) “we are limiting both. We can’t go beyond an extent”.

The court said that “We want the journalists to know their limitations” and added that it was not for stringent provisions. “We are not for journalists going to jail.”

Additional Solicitor General Indira Jaising told the constitution bench of Chief Justice Kapadia, Justice D.K. Jain, Justice S.S. Nijjar, Justice R.P. Desai and Justice J.S. Khehar that the “freedom of speech is not for the benefit of the press but for the benefit of public”.

The court was hearing an application by the Sahara India Real Estate Corp voicing its grievance over a news channel reporting its proposal made to the Securities and Exchange Board of India on securing the money it mopped up from the market.

The court earlier said that it would frame guidelines for reporting on sub-judice matters.

Friday, April 27, 2012

SC sets up committee on norms for issuing SIM cards

The Supreme Court on Friday set up a joint expert panel to recommend the procedure for the telecom firms for properly identifying the customers before issuing SIM cards to them.

A bench of Chief Justice S H Kapadia said the panel comprising officials of the department of telecommunications (DoT) and the Telecom Regulatory Authority of India ( Trai) will submit its report to the government within three months.

The bench passed the order on a plea by one Avishek Goenka seeking its direction to the government to frame guidelines for telecom firms for issuing SIM cards.

He further alleged the verification norms were necessary in view of the recent probe in terror attacks pointing towards the use of mobile phones the connections for which were given on the basis of fake documents.

He had pointed out that both in Mumbai and Delhi blasts, the probe had reached to the conclusion that the cellular phones used by the accused were operating with SIM cards, secured on the basis of bogus documents.

Delhi HC asks ND Tiwari to undergo DNA test in paternity case

The Delhi high court on Friday asked senior leader ND Tiwari to undergo DNA test in the paternity test case.

The court has said that ND Tiwari can be compelled to give blood sample. It further says that police assistance can be sought if he refuses to agree to do it voluntarily.

The division bench of the court set aside an earlier order of single judge which stated that ND Tiwari cannot be forced to give a blood sample in the paternity suit filed by Rohit Shekhar.

Rohit Shekhar, who had challenged high court's earlier order, claims he is the biological son of the senior leader.

YOGENDRA PRATAP SINGH v. SAVITRI PANDEY & ANR [2012] EssenSC 241 (3 April 2012)

Judgement REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2012 (Arising out of SLP (Crl.) No.5761 of 2010)

Yogendra Pratap Singh
Versus
Savitri Pandey & Anr.

1. Leave granted.


2. This appeal assails an order passed by the High Court whereby it has allowed a petition under Section 482 of the Cr.P.C. and quashed the order passed by the Magistrate taking cognizance of an offence punishable under Section 138 of The Negotiable Instruments Act, 1881. The following two questions arise for consideration:

(i) Can cognizance of an offence punishable under Section 138 of the Negotiable Instruments Act 1881 be taken on the basis of a complaint filed before the expiry of the period of 15 days stipulated in the notice required to be served upon the drawer of the cheque in terms of Section 138 (c) of the Act aforementioned? And, (ii) If answer to question No.1 is in the negative, can the complainant be permitted to present the complaint again notwithstanding the fact that the period of one month stipulated under Section 142 (b) for the filing of such a complaint has expired? 3. The questions arise in the following factual backdrop:

The appellant filed a complaint under Section 138 of the Negotiable Instruments Act against respondent No.1 Smt. Savitri Pandey in the Court of Additional Civil Judge (J.D.)/Magistrate, Sonbhadra in the State of Uttar Pradesh. The respondentb 4. We have heard learned counsel for the parties at some length.

Section 138 of the Negotiable Instrument Act, inter alia, provides:

5. Proviso to Section 138, however, is all important and stipulates three distinct conditions precedent, which must be satisfied before the dishonour of a cheque can constitute an offence and become punishable. The first condition is that the cheque ought to have been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. The second condition is that the payee or the holder in due course of the cheque, as the case may be, ought to make a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. The third condition is that the drawer of such a cheque should have failed to make payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. It is only upon the satisfaction of all the three conditions mentioned above and enumerated under the proviso to Section 138 as clauses (a), (b) and (c) thereof that an offence under Section 138 can be said to have been committed by the person issuing the cheque.


6. Section 142 of the Negotiable Instruments Act governs taking of cognizance of the offence and starts with a non-obstante clause. It provides that no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course and such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138. In terms of sub-section (c) to Section 142, no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class is competent to try any offence punishable under Section 138.


7. A conjoint reading of Sections 138 and 142 makes it abundantly clear that a complaint under Section 138 can be filed only after the cause of action to do so accrues to the complainant in terms of clause (c) of the proviso to Section 138 which as noticed earlier happens only when the drawer of the cheque in question fails to make the payment of the cheque amount to the payee or the holder of the cheque within 15 days of the receipt of the notice required to be sent in terms of clause (b) to the proviso to Section 138.


8. The upshot of the above discussion is that a complaint filed in anticipation of the accrual of the cause of action under clause (c) of the proviso to Section 138 would be a premature complaint. The complainant will have no legal justification to file such a complaint for the cause of action to do so would not accrue to him till such time the drawer of the cheque fails to pay the amount covered by the cheque within the stipulated period of 15 days from the date of the receipt of the notice. It follows that on the date such a premature complaint is presented to the Magistrate the same can and ought to be dismissed as premature and hence not maintainable. That is, however, not what happened in the case at hand. In the present case, the Magistrate took cognizance of the offence on 14th October, 2008 by which time the stipulated period of 15 days had expired but no payment towards the cheque amount was made to the complainant even upto the date the cognizance was taken. The commission of the offence was thus complete on the date cognizance was taken, but the complaint on the basis whereof the cognizance was taken remained premature.


9. The question in the above backdrop is whether the subsequent development namely completion of the third requirement for the commission of an offence under Section 138 could be taken note of for purposes of cognizance under Section 142 of the Act. The complaint filed by the appellant was in our view plainly premature. The fact that subsequent to the filing of the complaint an offence under Section 138 had been committed was no reason for the court to ignore the fact that the complaint on the basis of which it was taking cognizance of the offence was not a valid complaint. We say so because Section 142 of the Negotiable Instruments Act forbids taking of cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or the holder of the cheque in due course. Such a complaint in order to be treated as a complaint within the contemplation of Section 142 ought to be a valid complaint. This in turn means that such a complaint must have been filed after the complainant had the cause of action to do so under clause (c) of the proviso to Section 138. A complaint, that is, premature was no complaint in the eyes of law and no cognizance could be taken on the basis thereof.


10. Having said that, we must refer to two decisions of this Court that were cited at the Bar by learned counsel for the parties in support of their respective submissions. In Narsingh Das Tapadia v. Goverdhan Das Partani and Anr. (2000) 7 SCC 183, a similar question arose before a two- Judge Bench of this Court. That was also a case where on the date the complaint was filed the complainant had no cause of action but by the time cognizance of the offence was taken by the Magistrate, the stipulated period of 15 days had expired and the commission of the offence was complete. This Court drew a distinction between b b

11. The other decision pressed into service before us was also delivered by a two Judge Bench of this Court in Sarav Investment & Financial Consultancy Private Limited and Another v. Llyod Register of Shipping Indian Office Staff Provident Fund and Anr. (2007) 14 SCC 753. There this Court held that Section 138 of the Negotiable Instruments Act contains a penal provision and creates a vicarious liability. Even the burden of proof to some extent is on the accused. Having regard to the purport of the said provision and the severe penalty sanctioned by it, the same warrants a strict construction. The Court further held that service of a notice in terms of Section 138 proviso (b) of the Act is a part of the cause of action for lodging the complaint under Section 138 and that service of a notice under clause (b) of the proviso to Section 138 was an essential requirement to be complied with before a complaint could be filed.

The Court observed:

12. It follows that a complaint filed before the expiry of the stipulated period of 15 days was not a valid complaint for purposes of Section 142 of the Act. To that extent, therefore, the view taken in the two decisions referred to above are at variance with each other. That apart, the decision in Narsingh Das Tapadia (supra) does not, in our opinion, correctly state the legal position and may require a fresh look by a larger Bench of this Court. The cleavage in the judicial opinion on the question does not appear to be confined to the judgments of this Court alone.


13. Judicial opinion on the question is split even among the High Courts in the country. For instance, the High Court of Calcutta in Sandip Guha v.

Saktipada Ghosh 2008 (3) CHN 214, High Court of Orissa in Niranjan Sahoo v.

Utkal Sanitary, BBSR, [Crl. Misc. Case No.889 of 1996, decided on 13th February, 1998], High Court of Bombay in Rakesh Nemkumar Porwal v. Narayan Dhondu Joglekar and Anr. 1994 (3) Bom CR 355, High Court of Punjab and Haryana in Ashok Verma v. Ritesh Agro Pvt. Ltd. 1995 (1) Bank CLR 103 and the High Court of Andhra Pradesh in N. Venkata Sivaram Prasad v. Rajeswari Constructions 1996 Cri.L.J. 3409 (A.P.) have taken the view that a complaint filed within 15 days of the notice period was premature and hence liable to be quashed.


14. The High Court of Allahabad on the other hand has taken a contrary view in Smt. Hem Lata Gupta v. State of U.P & Anr. 2002 Cri.L.J. 1522 (All) and held that cognizance taken on the basis of a complaint filed within 15 days of the notice period was perfectly in order if such cognizance was taken after the expiry of the said period. To the same effect are the decisions of High Court of Allahabad in Ganga Ram Singh v. State of U.P. &

Ors. 2005 Cri.L.J. 3681 (All), High Court of Gauhati in Yunus Khan v.

Mazhar Khan, [2004 (1) GLT 652], High Court of Rajasthan (Jaipur Bench) in Mahendra Agarwal v. Gopi Ram Mahajan, [RLW 2003 (1) Raj 673], High Court of Delhi in Zenith Fashions Makers (P) Ltd. v. Ultimate Fashion Makers Ltd.

and Anr., [121 (2005) DLT 297], High Court of Madhya Pradesh, Indore Bench in Bapulal v. Krapachand Jain, 2004 Cri.L.J. 1140, High Court of Himachal Pradesh in Rattan Chand v. Kanwar Ram Kripal and Anr. 2010 Cri.L.J. 706 and High Court of Madras in I.S.P. Solutions India (P) Ltd. and Ors. v.

Kuppuraj, 2006 Cri.L.J. 3711.


15. It is noteworthy that the same High Court has in certain cases taken different views on the subject. For instance the High Court of Jammu and Kashmir has in Harpreet Hosiery Rehari v. Nitu Mahajan, 2000 Cri.L.J. 3625 held that dismissal of complaint on ground of that the same is premature is valid; while in S. Janak Singh v. Pritpal Singh, 2007 (2) J.K. 91, it has held that cognizance taken on a complaint filed before expiry of 15 days of the notice, after the expiry of the said period is permissible. A similar difference of opinion can also be seen in two decisions of the Karnataka High Court in Ashok Hegde v. Jathin Attawan, 1997 Cri.L.J. 3691 and Arun Hegde and Anr. v. M.J. Shetty, ILR 2001 Kar 3295. The conflict in the judicial pronouncements referred to above, therefore, needs to be resolved authoritatively.


16. The second question formulated earlier may arise only in case the answer to the first question is in the negative. If no cognizance could be taken on the basis of a complaint filed prematurely, the question would be whether such a complaint could be presented again after the expiry of 15 days and beyond the period of one month under the clause (b) of Section 142 of the Act. Whether or not the complainant can in a situation like the one in the case at hand invoke the proviso to clause (b) and whether or not this Court can and ought to invoke its power under Section 142 to permit the complainant to file a complaint even after the expiry of period of one month stipulated under Section 142 are incidental questions that may fall for determination while answering question no.2.


17. In the light of the above, we deem it fit to refer the two questions formulated in the beginning of the judgment to a three-Judge Bench of this Court. The Registry shall place the file before the Chief Justice for constitution of an appropriate Bench.

MODERN DENTAL COLLEGE & RES.CEN. & ORS. v. STATE OF MADHYA PRADESH & ORS. [2012] EssenSC 208 (3 April 2012)

Judgement REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION IA Nos. 57 & 59 IN CIVIL APPEAL NO. 4060 OF 2009

Modern Dental College and Research Centre and others
Versus
State of Madhya Pradesh & Ors.

O R D E R

K.S. Radhakrishnan, J.

1. We are in these applications called upon to decide the question as to whether the unfilled NRI seats are to be transferred to general pool and be shared equally to be filled up on the basis of the Common Entrance Test conducted by the State level Committee bor by the Common Entrance Test conducted by the Association of Private Dental and Medical Colleges (APDMC), so far as the private unaided medical/dental colleges in the State of Madhya Pradesh are concerned.


2. Applicants, herein had filed Writ Petition No. 2732 of 2009 before the High Court of Madhya Pradesh (Jabalpur) challenging the constitutional validity of Madhya Pradesh Niji Vyavsayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk ka Nirdharan) Adhiniyam, 2007 (in short bthe Rules framed thereunder. The High Court vide its judgment dated 15.5.2009 repelled the challenge to the Act and the Rules but declared that the provisions of Rule 10(2)(iii) of 2009 as ultra vires. The High Court also held that the Judgment would not affect the Common Entrance Test already conducted by VYAPAM for the year 2009-10. The above-mentioned Writ Petition was disposed of along with other similar matters and a common Judgment was delivered by the High Court.


3. Aggrieved by the judgment in Writ Petition No. 2732 of 2009, Civil Appeal No. 4060 of 2009 was filed by the applicants herein. While admitting the appeal, a Bench of this Court had prima facie found that the provisions of the Act handing over the entire selection process to the State Government or the agencies appointed by the State Government for undergraduate, graduate and postgraduate medical/dental colleges and fee fixation was contrary to and inconsistent with the principles laid down by the eleven-Judges Bench Judgment in TMA Pai Foundation and Others v. State of Karnataka and Others [(2002) 8 SCC 481] (for short bthe Judgment in P.A. Inamdar and others v. State of Karnataka and others [(2005) 6 SCC 537] (in short bAct would become unconstitutional, if read literally, but an interim arrangement was made with regard to the admissions in the private unaided medical/dental colleges in the State of Madhya Pradesh for the year 2009- 10; the operative portion of that order reads as follows:

b medical/dental colleges in the State of Madhya Pradesh will be done by first excluding 15% NRI seats (which can be filled up by the private institutions as per para 131 of Inamdar case), and allotting half of the 85% seats for admission to the undergraduate and post graduate courses to be filled in by an open competitive examination by the State Government, and the remaining half by the Association of the Private Medical and Dental Colleges. Both the State Government as well as the Association of Private Medical and Dental Colleges will hold their own separate entrance examination for this purpose. As regards b as provided under the Act and the Rules, in the manner they were done earlier.b

4. The Court also observed that the solution arrived at might not be perfect, but it had only tried to find out a best via media for admissions for the academic year 2009-10. However, it was recommended that the same might also be considered for future sessions. The order passed by the Court is reported in Modern Dental College and Research Centre and Ors. v.

State of Madhya Pradesh and Ors. [(2009) 7 SCC 751]. (in short Modern Dental College)

5. The above arrangement indicates that 15% of the total sanctioned intake in the unaided Private Medical and Dental Colleges was set apart for giving admission to NRI students and the remaining 85% seats would be filled up equally through the examination conducted by the State and the Common Entrance Test conducted by the Colleges. Controversy now is only with regard to unfilled NRI seats due to lack of sufficient NRI students, and in what manner those seats have to be filled up. State, has maintained the stand that those unfilled seats would also go to the general pool and be shared by both the State and the Colleges equally. Such a stand was taken by the State on the basis of the interpretation placed by this Court in filling up the unfilled NRI seats in its judgment dated 30.9.2010 in R.D. Gardi Medical College and Anr. etc. v. State of M.P. and Ors. (2010) 10 SCC 225 (in short Gardi Medical College), wherein, while interpreting Rule 8 of the M.P. Admission Rules, 2008 the two-Judges Bench of this Court observed as follows:

b unfilled NRI seats had to be transferred to the general pool to be filled up on the basis of the merit of the candidates in the State- level common entrance test conducted by the Madhya Pradesh Vyavsayik Pariksha Mandal or by any other agency authorised by the State Government for that purpose. The unfilled seats in the NRI quota were, therefore, to be treated as a part of the general pool and once that was done the share of the college in terms of the order passed by this Court would be 50% out of the said seats. The High Court has, in that view, rightly held that while the management was justified in filling up 5 unfilled seats in NRI quota, the remaining 5 could not have been filled up otherwise than on the basis of the entrance test referred to in Rule 8.b Court, in the above case, was dealing with the admissions for the academic year 2010-11.


6. The State Government while framing the Madhya Pradesh Private Medical and Dental Under Graduate Course Entrance Examination Rules, 2011 incorporated Rule 5 with regard to unfilled NRI seats with specific reference to the above-mentioned judgment dated 30.9.2010. The Rule reads as follows:

b of the sanctioned seats by NRI candidates only, in the manner prescribed by the admission and Fee Regulatory Committee. These NRI seats shall be filled up through a separate counselling. NRI seats remaining vacant shall be merged into the counselling of Non NRI Candidates, as per Honb No. 8429-8430/2010 dated 30.9.2010.b

7. The applicants, noticing that the judgment dated 30.9.2010 in Gardi Medical College would seriously affect the rights of unaided educational institutions in the matter of filling up of unfilled NRI seats, filed IA Nos. 51-52 of 2011 in Civil Appeal No. 4060 of 2009 for appropriate modification / clarification of the orders passed by two-Judges Bench in Modern Dental College as well as R.D. Gardi Medical College. The applications came up for hearing before two-Judges Bench of this Court on 1.8.2011 and this Court passed the following order:

b between the observations made in para 28 of the judgment of the two- Judges Bench rendered in the case of R.D. Gardi Medical College and Another. etc. v. State of M.P. and Ors. [(2010) 10 SCC 225], quoted below:


28. A plain reading of the above leaves no manner of doubt that unfilled NRI seats had to be transferred to the general pool to be filled up on the basis of the merit of the candidates in the State-level common entrance test conducted by the Madhya Pradesh Vyavsayik Pariksha Mandal or by any other agency authorised by the State Government for that purpose. The unfilled seats in the NRI quota were, therefore, to be treated as a part of the general pool and once that was done the share of the College in terms of the order passed by this Court would be 50% out of the said seats. The High Court has, in that view, rightly held that while the management was justified in filling up 5 unfilled seats in NRI quota, the remaining 5 could not have been filled up otherwise than on the basis of the entrance test referred to in Rule 8.

and the observations made in para 27(1), quoted below, of T.M.A.

Pai Foundation and others v. State of Karnataka and others [(1995) 5 SCC 220] which is a three Judge Bench decision:

b per cent for the current academic year. It shall be open to the management to admit NRI students and foreign students up to the aforesaid specified percentage, it shall be open to them to admit students on their own, in the order of merit, within the said quota. This direction shall be a general direction and shall operate in the case of all the States where admissions have not been finalized. It is, however, made clear that by virtue of this direction, no student who has already been admitted shall be disturbed or removed.b The Court, therefore, referred the matter to a larger Bench. However, by the time year 2011-2012 came to a close hence, the larger Bench could not resolve the apparent conflict and hence, a two Judges Bench of this Court disposed of both IA Nos.51 and 52 vide its order dated 23.9.2011.


8. The same issue, has again been cropped up, now for the academic year 2012-13, hence, it is necessary to clarify the order dated 27.5.2009 in Modern Dental College and the judgment of this Court dated 30.9.2010 in R.D. Gardi Medical College as to how the unfilled NRI seats be filled up.

For the said purpose, the applicants have filed IA Nos.57-59 of 2011, which came up for hearing before two-Judges Bench of this Court on 9.12.2011 and the Court ordered that the applications be placed before the Constitution Bench.


9. Since main issue referred to Constitution Bench is not likely to come up for hearing shortly and the issue projected in I.As with regard to unfilled seats is of urgent nature, thus, they have been considered by us.

Hence, these applications have come up before us for consideration vide order passed by Honb 10. We have heard learned senior counsel - Shri C.A. Sundaram and Dr.

Rajeev Dhawan and learned counsel for the State of Madhya Pradesh - Shri B.S. Banthia. We may at the outset point out that in the instant applications, we are concerned only with the question as to how and in what manner the unfilled NRI seats be filled up for the year 2012-13 till the appeal is finally disposed of, which issue, in our view, is no more res integra. This Court had earlier in various judgments dealt with the purpose and object of creating NRI quota and the manner in which those quota had to be filled up. A three-Judges Bench of this Court in TMA Pai Foundation and Others v. State of Karnataka and Others [1994] INSC 323; (1994) 4 SCC 728 had an occasion to consider how, the vacant seats, in the NRI quota be filled up and ordered as follows:

b year. We fixed NRI quota in respect of minoritiesb 5%. Although the NRI quota should not, normally, be more than 5% but keeping in view the reduction in the fee structure, we fix the same as 10% (of the total seats) for this year. We further make it clear that in case any in the NRI quota remains unfilled, the same can be filled by the Management at its discretion.b Later another three-Judges Bench of this Court in TMA Pai Foundation and Others v. State of Karnataka and Others [1995] INSC 377; (1995) 5 SCC 220 had also endorsed the same view holding that it would be open to the Management to admit NRI students and foreign students within that quota and in case they were not able to get the NRI or foreign students upto the aforesaid specified percentage, it would be open to them to admit students on their own, in the order of merit, within the said quota. The operative portion of the order with regard to NRI quota for the year 1995-96 was as follows:

(1) So far as NRI quota is concerned, it is fixed at fifteen per cent for the current academic year. It shall be open to the management to admit NRI students and foreign students within this quota and in case they are not able to get the NRI or foreign students upto the aforesaid specified percentage, it shall be open to them to admit students on their own, in the order of merit, within the said quota. This direction shall be a general direction and shall operate in the case of all the States where admissions have not been finalized. It is, however, made clear that by virtue of this direction, no student who has already been admitted shall be disturbed or removed.b Similar order was also passed by this Court in AP (P) Engg. College Management Assn. v. Govt. of A.P. (2000) 10 SCC 565. The operative portion of the order of the two-Judges Bench reads as follows:

b the State of Andhra Pradesh shall allow the 5% NRI quota in the private engineering colleges in the State of Andhra Pradesh to be filled up in the manner earlier directed by this Court and to permit the management of the private engineering colleges to fill up the unfilled NRI quota, at its own discretion, subject, however, to the criteria of merit, qualification and fee structure b prescribed by the Government not only for the current academic year but also for successive academic years, till the main matter is decided by this Court in the pending cases.b

11. We may also in this connection refer to the judgment of the seven- Judges Bench in P.A. Inamdar v. State of Maharashtra [(2005) 6 SCC 537], wherein this Court had dealt with the rights of unaided minority and non- minority educational institutions and held that the State cannot regulate or control admissions, so as to compel them to give up a share of the available seats to the candidates chosen by the State, as if it was filling up, the seats available, to be filled up at its discretion in such private institutions. Court held that would amount to nationalization of seats, such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions. It was also ordered that such appropriation of seats can also not be held to be a regulatory measure in the interest of the minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution.

Inamdar having said so dealt with NRI seats as well. In Para 131 of judgment, the Court had only dealt with the question as to how NRI seats had to be filled up: First, it was ordered that the seats should be utilized bona fide by NRIs only and for their children or wards. Further, it was ordered that within quota, merit should not be given a complete go- bye. Further, it was also ordered that the amount of money, in whatever form collected from such NRIs, should be utilized for benefiting students such as from economically weaker sections of the society, whom, on well defined criteria, the educational institution might admit on subsidized payment of their fee.

Further, In para 132 of the Inamdar, it had also been clearly held that the policy of reservation should not be enforced by the State nor any quota or percentage of admissions could be carved out to be appropriated by the State in a minority or non-minority unaided educational institution.


12. We are of the considered view that the above principles laid down by a larger Benches of this Court, in the matter of filling up of NRI seats were not correctly understood or applied by this Court in R.D. Gardi Medical College while interpreting Rule 8 of the M.P. Admission Rules, 2008. The finding recorded in R.D. Gardi Medical College that the unfilled seats in NRI quota in unaided professional colleges should be treated as a part of the general pool and be shared equally by the State and the unaided professional colleges goes contrary to the principles laid down by the eleven-Judges Bench in Pai Foundation, Inamdar as well as the Judgments rendered by the three Judges Bench in Pai Foundation referred to earlier. The wrong interpretation given by in R.D. Gardi Medical College is seen incorporated in Rule 5 of the Madhya Pradesh Private Medical and Dental Under Graduate Course Entrance Examination Rules 2011 as well, which in our view cannot be legally sustained.


13. We are, therefore, inclined to allow both the applications and over rule the direction given by the two learned Judges of this Court in R.D.

Gardi Medical College and hold that it is open to the unaided professional educational institutions to fill up unfilled NRI seats for the year 2012- 13 and for the succeeding years through the entrance test conducted by them till the disposal of the appeal subject to the conditions laid down in Inamdar strictly on the basis of merits.


14. IA Nos. 57 and 59 of 2011 in Civil Appeal No. 4060 of 2009 are allowed to the extent mentioned above and disposed of on the basis of the above modifications and clarifications.

KERSI COMMISSARIAT & ORS. v. MIN.OF FOOD & CIVIL SUP.GOV.OF MAH.MUMBI [2012] EssenSC 207 (3 April 2012)

Judgement
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION CIVIL APPEAL Nos. 3356-3357/2012 (Arising out of SLP (C) Nos. 3273-327of 2011)

Kesri Commissariat & others
Versus
Ministry of Food and Civil Supplies, Govt. of Maharashtra, Mumbai & Anr.

Dipak Misra, J Leave granted.


2. The plaintiffs, trustees of the Parsee Girlsbbeing aggrieved by the judgment and order dated 5th March, 2010 in Writ Petition No. 1171 of 2009 and the order dated 17.9.2010 in Review Petition No. 160 of 2010 passed by the High Court of Judicature at Bombay whereby the Writ Court has overturned the judgment and order dated 29.8.2008 of the Appellate Court of Small Causes at Bombay in Appeal No. 123 of 2005 wherein the Appellate Court had reversed the judgment and decree passed by the Court of Small Causes at Bombay in T.E. & R. Suit No. 241 of 2002 wherein the said court had decreed the suit against defendant No. 1 and dismissed the suit against defendant No. 2 for recovery of possession, and decreed the suit in toto and directed recovery of possession with a further direction of an enquiry as regards the future mesne profits under Order 20 Rule 12(1)(c) of the Code of Civil Procedure (for short bpreferred the present appeals by special leave under Article 136 of the Constitution.


3. Shorn of unnecessary details, the facts which are essential to be exposited are that the appellants/plaintiffs (hereinafter referred to as bof the suit properties situate at 4th and 5th Floor of Bengallee Girls High School, 42, Sir Vithaldas Thackersey Marg, New Marine Lines, Mumbai and for other reliefs. The case of the plaintiffs before the court of first instance was that the Parsee Girlsband owns the suit building where the B.S. Bengallee Girls High School is run. In the year 1954, the plaintiffs had permitted defendant No. 1, the New India Assurance Company Ltd., to occupy the 4th and 5th floors of the suit building on payment of rent of Rs.6114/- per month. The said company, in the year 1959, without the knowledge and consent of the plaintiffs, inducted defendant No. 2, the Ministry of Food and Civil Supplies, Government of Maharashtra, as a subtenant. It was pleaded that the plaintiffs had the privity of contract only with defendant No. 1 and had no relationship whatsoever with defendant No. 2 and, therefore, defendant No.

2 was in unlawful possession of the premises in question. It was the stance of the plaintiffs that they, being in need of the suit property for the School, requested the defendants to deliver the possession but as sphinx like silence was maintained to the request, being compelled, they issued notice on 19.11.2001 terminating the tenancy of defendant No. 1 and instituted the suit for recovery of possession. It was contended by the plaintiffs that the defendants were not protected under the provisions of Section 3(1)(b) of the Maharashtra Rent Control Act, 1999 (for brevity b1999 Actbforth and the same was assessed by the plaintiffs at Rs.11,45,583/- per month as per the market value.


4. Defendant No. 1, the New India Assurance Company, filed its written statement setting forth the stance that the suit was misconceived and not maintainable as the proper remedy on the part of the plaintiffs was to take recourse to Section 16 of the 1999 Act. It was also asserted that there was no cause of action for eviction. The further stand of defendant No. 1 was that the plaintiffs had not obtained permission from the Charity Commissioner under the Bombay Public Trust Act, 1950. It was asseverated that defendant No. 1 being a Government Company was not exempted under the provisions of the 1999 Act. It was the further stand that with the knowledge and consent of the trustees, the predecessors of the plaintiffs, had given the suit premises to defendant No. 2 in the year 1959 and the present trustees were aware about these facts. The allegation that defendant No. 2 was in unlawful occupation was strongly refuted. The bona fide requirement of the plaintiffs was vehemently controverted. The claim of mesne profits was seriously resisted by the said defendant.


5. Defendant No. 2 filed a separate written statement stating, inter alia, that the suit was not maintainable; that it was barred by limitation;

that no notice under Section 80 of the Code was served on it; that the Insurance Company had already shifted its premises to its own building and sublet the suit premises to defendant No. 2 and they are in peaceful occupation of the same with the knowledge of the plaintiffs; and that it being a protected tenant under the 1999 Act, the relief of eviction was untenable.


6. The learned trial Judge framed number of issues and came to hold that the tenancy of defendant No. 1 had been validly and legally terminated;

that the suit is not flawed for want of permission of the Charity Commissioner or want of notice under Section 80 of the Code; that the plaintiffs are the validly appointed trustees; that the plaintiffs are entitled to a decree for possession in respect of the suit premises as far as defendant No. 1 is concerned; and that defendant No. 2 had proved that being a lawful subtenant, it is protected under the provisions of the 1999 Act and, therefore, decree for possession in respect of the said defendant could not be granted. The learned trial Judge, to arrive at the conclusion that the provisions of the 1999 Act would not apply to the Insurance Company, relied on the evidence on record, namely, the manner in which it has come into existence and the paid-up capital is more than rupees one crore and that it is not a Government Company. As far as defendant No. 2 is concerned, an opinion was expressed that the 1999 Act is applicable as the premises in question has been given on licence to a Government Department. After so holding, as is perceptible, the learned trial Judge proceeded to state that defendant No. 2 is in exclusive possession of the suit property since 1959 and, therefore, it had acquired the status of a deemed tenant by virtue of Section 15(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 as amended in 1987 (for short b1947 Actb1999 Act, the status of deemed tenant of defendant No. 2 is not affected and, therefore, it would get protection as provided under the 1999 Act.

Being of this view, he decreed the suit in part as has been indicated hereinabove.


7. On an appeal being preferred, the Appellate Court, after concurring with the findings recorded by the learned trial Judge and analysing the ambit, purpose and scope of Section 3 (1) (b) of the 1999 Act, came to hold that Section 3(1)(b) of the 1999 Act is applicable to both the defendants in respect of the suit premises and, therefore, defendant No. 2 could not become a lawful tenant of the landlord and claim protection under the provisions of the 1999 Act. On the basis of the aforesaid reasoning, the Appellate Court decreed the suit for recovery of possession against both the defendants and directed for mesne profits.


8. The reversal of the decree led defendant No. 2, the Ministry of Food and Civil Supplies, Government of Maharashtra, to prefer a writ petition under Article 227 of the Constitution of India in the High Court at Bombay.

It was contended before the learned Single Judge that the second defendant was inducted as a subtenant in the year 1959 and by virtue of the provisions of the 1947 Act, it had acquired the status of deemed tenant with effect from 1st February, 1973 in view of the language employed in sub- section (2) of Section 15 of the said Act and, therefore, it was entitled to protection. The said submission was combatted by the respondents therein contending that the suit was governed under the provisions of Transfer of Property Act and the conclusion arrived at by the Appellate Court was absolutely impeccable. The Writ Court, analysing the evidence and findings recorded by the courts below, came to hold that the writ petitioner was inducted by the Insurance Company in the year 1959 as a subtenant and if the amendment brought in Section 15 of the 1947 Act by Maharashtra Act No. VIII of 1987 is conjointly read with sub-section (11) of Section 5 of the 1947 Act, it would be clear that a subtenant who is inducted by the tenant before 1st February, 1973 becomes the tenant within the meaning of Section 5(11) of the 1947 Act and hence, the irresistible conclusion would be that the second defendant became a tenant. The Writ Court further opined that the 1999 Act came into force on 1st April, 2000 and by that time, by virtue of sub-section (1) of Section 4 of the 1947 Act, defendant No. 2, being a Government Department, had become a tenant and, as a logical corollary, Clause (a) of Section 3(1) of the 1999 Act would apply to the premises in question and, therefore, defendant No. 2 enjoyed the protection of the 1999 Act. Being of this view, the Writ Court unsettled the judgment and decree for eviction.


9. We have heard Mr. T.R. Andhiyarujina, learned senior counsel for the appellants, Mr. Chinmoy A. Khaladkar, learned counsel for respondent No. 1, and Mr. A.K. Raina, learned counsel for respondent No. 2.


10. The singular seminal issue that has emanated for consideration is whether defendant No. 2, which is respondent No. 2 herein, would be a protected tenant under the provisions of the 1999 Act. The learned Single Judge has treated defendant No. 2 as a deemed tenant and thereby opined that he is entitled to protection under the 1999 Act. He has placed reliance on the amended definition of bSection 15 of the 1947 Act to come to the conclusion that defendant No. 2 is a protected tenant under the 1999 Act. To understand the scheme of the 1947 Act, it is apposite to refer to Section 4 of the said enactment. It deals with exemptions. Section 4(1), being relevant, is reproduced below:

- b belonging to the Government or a local authority or apply as against the Government to any tenancy, licence or other like relationship created by a grant from or a licence given by the Government in respect of premises requisitioned or taken on lease or on licence by the Government, including any premises taken on behalf of the Government on the basis of tenancy or of licence or other like relationship by, or in the name of any officer subordinate to the Government authorised in this behalf;

but it shall apply in respect of premises let, or given on licence, to the Government or a local authority or taken on behalf of the Government on such basis by, or in the name of such officer.b

11. At this juncture, it is apt to state that Section 4(1) of the 1947 Act in its original frame had come up for consideration before this Court in Bhatia Co-operative Housing Society Ltd. v. D.C. Patel[1]. This Court was considering the applicability of the 1947 Act to a local authority, regard being had to the provisions contained in Section 4 of the Act. The crucial point that arose before the Court was to determine the question of jurisdiction of the city civil court to entertain the suit keeping in view the language in which Section 4 of the 1947 Act was couched. The applicability of the provision was the core issue. It was observed, if it applied, the city civil court had no jurisdiction but if it did not, then it had such jurisdiction. After so observing, the four-Judge Bench proceeded to deal with the fact whether the Act applied to the demised premises and, accordingly, proceeded as to what would be the true construction of Section 4(1) of the 1947 Act. This Court scanned the anatomy of the provisions of Section 4 (1) into three parts, namely, (i) the Act shall not apply to premises belonging to the Government or a local authority, (ii) the Act shall not apply as against the Government to any tenancy or other like relationship created by grant from the Government in respect of premises taken on lease or requisitioned by the Government, and (iii) the Act shall apply in respect of premises let out to the Government or a local authority. After reproducing the contentions, the Court proceeded to state as follows: - b that general object. The purpose of the first two parts of section 4(1) is to exempt two cases of relationship of landlord and tenant from the operation of the Act, namely, (1) where the Government or a local authority lets out premises belonging to it, and (2) where the Government lets out premises taken on lease or requisitioned by it. It will be observed that the second part of section 4(1) quite clearly exempts "any tenancy or other like relationship" created by the Government but the first part makes no reference to any tenancy or other like relationship at all but exempts the premises belonging to the Government or a local authority. If the intention of the first part were as formulated in item (1), then the first part of section 4(1), like the second part, would have run thus :- This Act shall not apply to any tenancy or other like relationship created by Government or local authority in respect of premises belonging to it.

The Legislature was familiar with this form of expression, for it adopted it in the second part and yet it did not use that form in the first. The conclusion is, therefore, irresistible that the Legislature did not by the first part intend to exempt the relationship of landlord and tenant but intended to confer on the premises belonging to Government an immunity from the operation of the Act.b [Emphasis added] Thereafter, the Bench proceeded to state as follows: - b construed as to exempt the premises from the operation of the Act, not only as between the Government or a local authority on the one hand and its lessee on the other, but also as between that lessee and his sub-tenant, then the whole purpose of the Act will be frustrated, for it is well known that most of the lands in Greater Bombay belong to the Government or one or other local authority, e.g., Bombay Port Trust and Bombay Municipality and the greater number of tenants will not be able to avail themselves of the benefit and protection of the Act. In the first place, the preamble to the Act clearly shows that the object of the Act was to consolidate the law relating to the control of rents and repairs of certain premises and not of all premises. The Legislature may well have thought that an immunity given to premises belonging to the Government or a local authority will facilitate the speedy development of its lands by inducing lessees to take up building leases on terms advantageous to the Government or a local authority. Further, as pointed out by Romer L.J. in Clark v. Downes [1931] 145 L.T. 20, which case was approved by Lord Goddard C.J. in Rudler v. Franks [1947] 1 K.B. 530 such immunity will increase the value of the right of reversion belonging to the Government or a local authority. The fact that the Government or a local authority may be trusted to act fairly and reasonably may have induced the Legislature all the more readily to give such immunity to premises belonging to the Government or a local authority but it cannot be overlooked that the primary object of giving this immunity was to protect the interests of the Government or a local authority. This protection requires that the immunity should be held to attach to the premises itself and the benefit of it should be available not only to the Government or a local authority but also to the lessee deriving title from it. If the benefit of the immunity was given only to the Government or a local authority and not to its lessee as suggested by learned counsel for the respondent and the Act applied to the premises as against the lessee, then it must follow that under section 15 of the Act it will not be lawful for the lessee to sublet the premises or any part of it. If such were the consequences, nobody will take a building lease from the Government or a local authority and the immunity given to the Government or a local authority will, for all practical purposes and in so far at any rate as the building leases are concerned, be wholly illusory and worthless and the underlying purpose for bestowing such immunity will be rendered wholly ineffective. In our opinion, therefore, the consideration of the protection of the interests of the subtenants in premises belonging to the Government or a local authority cannot override the plain meaning of the preamble or the first part of section 4(1) and frustrate the real purpose of protecting and furthering the interests of the Government or a local authority by conferring on its property an immunity from the operation of the Act.b [Underlining is ours] Eventually, this Court opined that the demised premises, including the building, belonged to the local authority and are outside the operation of the Act. The Act being out of the way the appellants were well within their rights to file the suit in ejectment in the City Civil Court and that Court had jurisdiction to entertain the suit and to pass the decree.


12. We have referred to the aforesaid dictum in extenso to highlight that the provision exempted the premises let out and a subtenant cannot claim protection in the premises belonging to the Government or a local authority as that would frustrate the real purpose of affording an immunity from the operation of the Act.


13. In a similar situation, the Court of Appeal in England in the case of Rudler v. Franks[2], speaking through Lord Goddard, C.J., has opined thus:

- b Crown creates a sub-tenancy is first because, as I have just said, the Acts operate in rem and not in personam and so are never attached to the house at all.b

14. In Percy G. Moore, Ltd. v. Stretch[3], it has been held that the Rent Act applies to property and not to a person or to a tenant or a subtenant.

It is worth noting, in the said cases, the deliberation pertained to rent restriction.


15. Similarly, in Cow v. Casey[4], it has been laid down that a tenant of premises which are not protected by the Acts cannot create a sub-tenancy, of part of those premises which would be protected against the landlord.


16. In this regard, we may refer with profit to the decision in Nagji Vallabhji and Company v. Meghji Vijpar and Company and Another[5] wherein the question arose as regards the interpretation of Section 4(1) of the 1947 Act. Be it noted that sub-section (4)(a) to Section 4 was introduced by the Bombay Rent Act by the Act 4 of 1953. It was urged that they were lawful subtenants of the firm and were, therefore, entitled to protection under Section 4(1) of the 1947 Act. The Bombay City Civil Court decreed the suit for eviction. In appeal, the learned Single Judge of the High Court of Bombay remanded the matter on two issues. On remand, the City Civil Court recorded a finding that the tenancy of the appellant was not validly terminated. In appeal, the learned Single Judge came to hold that there was a valid notice and the provisions of the Rent Act did not apply to the premises in question. On a further appeal being preferred, the Division Bench dismissed the same. The Bench referred to the legislative history of the 1947 Act and the decision in Bhatia Co-operative Housing Society Ltd. (supra) and referred to Section 4(1) and sub-section (4)(a) to Section 4 and eventually came to hold as follows: - b part of sub-section (1) of Section 4 is in respect of the premises and not in respect of the relationship. In order to confer the protection of the provisions of the Bombay Rent Act to the sub-lessees occupying the premises in any building erected on Government land or on land belonging to a local authority irrespective of the question who has put up the building as against the lessees of the land but without affecting the immunity conferred to the Government or local authorities as contemplated by sub-section (1) of Section 4 of the Bombay Rent Act, we would have practically rewritten the provisions of Section 4 and it is not open to us to do that.b Thereafter, the Bench proceeded to state as follows: - b that the protection should be given to the sub-lessee against the lessee in a building taken on lease by the lessee from the Government or a local authority, it is for the Legislature concerned to make appropriate amendments in the Bombay Rent Act and it is not open for us to re-write the provisions of Sub- section (4)(a) of Section 4 of the Bombay Rent Act.b

17. In this regard, we may fruitfully refer to the decision in Parwati Bai v. Radhika[6]. In the said case, the appellant had filed a suit for eviction in the Civil Court. A plea was advanced by the defendants that the suit premises are governed by the provisions of the Madhya Pradesh Accommodation Control Act, 1961. The courts below accepted the stand of the defendant and dismissed the suit. The second appeal preferred by the plaintiff/landlord was dismissed. This Court referred to Section 3(1) of the 1961 Act and held as follows: - b operative Housing Society Ltd. v. D.C. Patel [(1953) 4 SCR 185), wherein pari materia provisions contained in the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 came up for consideration of this Court. It was held that the exemption is not conferred on the relationship of landlord and tenant but on the premises itself making it immune from the operation of the Act. In identical facts, as the present case is, the decision of this Court was followed by the High Court of Madhya Pradesh in Radheylal Somsingh v. Ratansingh Kishansingh [1977 MPLJ 335] and it was held that the immunity from operation of the Madhya Pradesh Accommodation Control Act, 1961 is in respect of the premises and not with respect to the parties. If a tenant in municipal premises lets out the premises to another, a suit by the tenant for ejectment of his tenant and arrears of rent would not be governed by the Act as the premises are exempt under Section 3(1)(b) of Act though the suit is not between the municipality as landlord and against its tenant. We find ourselves in agreement with the view taken by the High Court of Madhya Pradesh in Radheylalb decision binding in the State of Madhya Pradesh was not taken note of by the courts below as also by the High Court.b From the aforesaid pronouncements, it is luminescent that the provision applies to premises and not to parties or persons. The learned Single Judge has referred to the definition of bby whom or in whose account rent is payable and includes a tenant or subtenant as derived under a tenant before the first day of February, 1973band has held that the Government becomes a protected tenant.


18. The thrust of the matter is whether the original tenant is a protected tenant or not and if not, what benefit would enure to a subtenant.


19. At this stage we think it appropriate to refer to Section 3 of the 1999 Act. The said provision also deals with exemption. For our purpose Clauses (a) and (b) of sub-Section (1) of Section 3, being relevant, are reproduced below: - b (a) to any premises belonging to the Government or a local authority or apply as against the Government to any tenancy, licence or other like relationship created by a grant from or a licence given by the Government in respect of premises requisitioned or taken on lease or on licence by the Government, including any premises taken on behalf of the Government on the basis of tenancy or of licence or other like relationship by, or in the name of any officer subordinate to the Government authorised in this behalf;

but it shall apply in respect of premises let, or given on licence, to the Government or a local authority or taken on behalf of the Government on such basis by, or in the name of, such officer;

(b) to any premises let or sub-let to banks, or any Public Sector Undertakings or any Corporation established by or under any Central or State Act, or foreign missions, international agencies, multinational companies, and private limited companies and public limited companies having a paid up share capital of rupees one crore or more.b From the aforesaid provisions, it is quite plain that the Act does not apply to Government or a local authority or to any premises let or sub-let to a bank or any public sector undertaking or any corporation established by or under any Central or State Act, public limited companies and some other categories. The exception that has been carved out is that it shall apply in respect of premises let or given in licence to the Government or a local authority or taken on behalf of the Government on such basis by or in the name of such officer. In the case on hand, the trust has let out the premises to the Insurance Company.


20. In Leelabai Gajanan Pansare and Others v. Oriental Insurance Company Limited and Others[7], question arose whether a Government Company falls within the compendious expression `any public sector undertakingb`corporationbunder Section 7 (1) of the 1999 Act. The respondent in the said case who was noticed was Oriental Insurance Company Limited. It was contended before the two-Judge Bench that the concept of a Government Company is not a part of Section 3 (1) (a) and in the absence of the word 'Governmentbthe presence of other expressions in Section 3(1)(b), it is to be construed that the Government Companies are not entitled to receive the protection of the Rent Act. It was contended on behalf of the respondent company that a Government Company is sui generis in structure and in statutory treatment thereof and, therefore, it does not fall within the compendious expression and the exclusion clause which applies to public sector undertakings established by or under any Central or State Act does not apply to a Government Company like Oriental Insurance Company.


21. After dealing with various contentions, the two-Judge Bench referred to the various provisions of the 1999 Act, the Companies Act and dealt with Section 4(1) of the 1947 Act and, placing reliance on Malpe Vishwanath Acharya & ors. v. State of Maharashtra & Anr[8], came to hold as follows: - b reason why Section 3(1)(b) came to be enacted. As stated above, in our view, with the offer of an economic package to the landlords, the legislature has tried to maintain a balance. The provisions of the earlier Rent Act, as stated above, have become vulnerable, unreasonable and arbitrary with the passage of time as held by this Court in the above judgment. The legislature was aware of the said judgment. It is reflected in the report of the Joint Committee. In our view, the changes made in the present Rent Act by which landlords are permitted to charge premium, the provisions by which cash-rich entities are excluded from the protection of the Rent Act and the provision providing for annual increase at a nominal rate of 5% are structural changes brought about by the present Rent Act, 1999 vis-a:#-vis the 1947 Act. The Rent Act of 1999 is the sequel to the judgment of this Court in Malpe Vishwanath Acharya.

The entire discussion hereinabove is, therefore, not only to go behind Section 3(1)(b) and ascertain the reasons for enactment of the said clause but also to enable this Court to give purposive interpretation to the said clause.b After so stating, the two-Judge Bench speaking, through S.H. Kapadia, J.

(as His Lordship then was), observed as follows: - b government companies, as held by the High Court, we would be disturbing the package offered by the legislature of allowing increase of rent annually at 5%, allowing the landlords to accept premium and exclusion of certain entities from the protection of the Rent Act under Section 3 (1) (b). On the other hand, acceptance of the arguments advanced on behalf of the respondents on the interpretation of Section 3(1)(b) would make the Act vulnerable to challenge as violative of Article 14 of the Constitution. Therefore, we are of the view that on a plain meaning of the word b legislature, it is clear that Indiab statutory corporations, public sector companies, government companies and companies in which the public are substantially interested (see the Income Tax Act, 1961). When the word PSU is mentioned in Section 3 (1) (b), the State Legislature is presumed to know the recommendations of the various Parliamentary Committees on PSUs. These entities are basically cash-rich entities. They have positive net asset value. They have positive net worths. They can afford to pay rents at the market rate.


74. Thirdly, we are of the view that, in this case, the principle of noscitur a sociis is clearly applicable. According to this principle, when two or more words which are susceptible to analogous meanings are coupled together, the words can take their colour from each other. Applying this test, we hold that Section 3(1)(b) clearly applies to different categories of tenants, all of whom are capable of paying rent at market rates.

Multinational companies, international agencies, statutory corporations, government companies, public sector companies can certainly afford to pay rent at the market rates. This thought is further highlighted by the last category in Section 3(1)(b).

Private limited companies and public limited companies having a paid-up share capital of more than Rs.1,00,00,000 are excluded from the protection of the Rent Act. This further supports the view which we have taken that each and every entity mentioned in Section 3(1)(b) can afford to pay rent at the market rates.

xxx xxx xxx

76. As stated above, Section 3(1)(b) strikes a balance between the interest of the landlords and the tenants; it is neither pro- landlords nor anti-tenants. It is pro-public interest. In this connection, one must keep in mind the fact that the said Rent Act, 1999 involves a structural change vis-a:#-vis the Bombay Rent Act, 1947. As stated above, with the passage of time, the 1947 Act became vulnerable to challenge as violative of Article 14.

As stated above, the legislature has to strive to balance the twin objectives of Rent Act protection and rent restriction for those who cannot afford to pay rents at the market rates.


77. To accept the interpretation advanced on behalf of the respondents for excluding government companies from the meaning of the word b the neat balance struck by the legislature.b

22. From the aforesaid it is graphically clear that an Insurance Company is not protected under the 1999 Act. Once it is held that defendant No. 1, the New India Assurance Company, the original tenant, is not protected, the question would be whether a subtenant can be protected under the Act. In the case of Bhatia Co-operative Housing Society Ltd. (supra), it has been clearly laid down that Section 4(1) of the 1947 Act applies to premises and not to parties or their relationship. Section 3 uses the term b The provision commences with the non-obstante clause that the Act does not apply to any premises belonging to the Government or a local authority.

Sub-section 3(1)(b) makes it clear that the Act does not apply to any bank, public sector undertaking or certain other categories of tenants. The Insurance Company is covered under Section 3(1)(b). Thus, as a logical corollary, the Act does not apply to the premises held by the Insurance Company who is a tenant.


23. The learned Single Judge has allowed protection to the Government Department on the foundation that it has become a tenant. We are disposed to think that the analysis is fundamentally erroneous. When the Act does not cover the tenant, namely, the Insurance Company as basically the exemption applies only to premises and not to any relationship, the subtenant who becomes a deemed tenant cannot enjoy a better protection or privilege by ostracizing the concept of premises which is the spine of the provision.


22. In the ultimate analysis, we are obliged to allow the appeals, set aside the order passed by the High Court and restore that of the Appellate Court and, accordingly, it is so directed. The parties shall bear their respective costs.

......................................J.

[Dalveer Bhandari]
......................................J.

[Dipak Misra] New Delhi;

April 03, 2012.