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What is the summary of this judgment?
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IVIL Appeal No.768 (NT) of 1977 etc. From the judgment Order dated 9.10.1975 of the Madhya Pradesh High Court in M.C.C. No.144 of 1966. V.A. Bobde, B.R.Aggarwala and U.A.Rana for the Appellant. S.V.Deshpande and S.K.Agnihotri for the Respondents.
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The appellant, a manufacturer of cement, entered into an agreement with the Cement Manufacturing Company of India Limited, for sale of cement. Under the agreement, the appellant was to sell its cement only through the marketing company, and certain sums would be paid for the cement supplied by the marketing company, which had the discretion to fix the sale price. For the 1950 51, 1951 52 and 1952 53 periods when the appellant was assessed to sales tax for the supply of cement, it maintained at the assessment stage that the transactions were not exigible to sales tax as they were covered under the Explanation to Article 286(1)(a). The first Appellate Authority and the Board of Revenue did not accept the stand of the appellant. The Board of Revenue held that cement being a controlled commodity, distribution of cement continued to be controlled during the period, notwithstanding the expiry of the Defence of India Rules. Relying on the decision of this Court in the case of Rohtas Industries Limited vs State of Bihar, 12 STC 621 the Board of Revenue held that the Cement Marketing Company was an independent organisation and was carrying on business as an independent entity and that what had actually been taxed were the sales effected by the appellant to the Cement marketing Company and not the sales made to the parties which obtained authorization from the Cement Controller. After analyzing the terms of the contract between the manufacturer and the Marketing Company, this Court held in Rohtas Industries case that there was sale between the manufacturer and the Marketing Company. 251 Following its view taken in Rohtas Industries case as the present case had the same terms, which had been considered in the earlier case, and examining the question whether the sale that took place between the manufacturer and the Marketing Company could be taken to be covered by the Explanation to Article 286(1)(a), this Court, dismissing the appeals, HELD: 1. There was preceding local sales complete in every respect within Madhya Pradesh by which title to the cement had passed from the appellant to the Marketing Company. The concept of inter State sale as brought in by the Sixth Amendment or in the subsequent statute known as the Central Sales Tax Act was not in existence for the relevant period now under consideration. The finding recorded by the authorities was that the delivery of the cement was not the direct result of such sale or purchase of the cement outside the State. In the absence of such privity the Explanation is not attracted to the transactions.[254E G]. In view of the finding recorded by the authorities that the cement in this case actually had not been delivered as a direct result of such sale or purchase for the purpose of consumption outside the State, the only conclusion that can follow is that the Explanation does not apply and the assessments are justified.[254H 255A]. Rohtas Industries Limited vs State of Bihar, 12 STC 621, followed. Mohmd. Serajuddin vs State of Orissa,, distinguished.
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What is the summary of this judgment?
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The Judgment of the Court was delivered by RANGANATH MISHRA, CJ. These are appeals by special leave 252 and are directed against the separate decisions of the Madhya Pradesh High Court in references under the Madhya Pradesh Sales Tax Act. Civil Appeal No.768/77 relates to the assessment period 1951 52, Civil Appeal 539/78 relates to 1950 51 and Civil Appeal 1038/78 to 1952 53. The appellant is a manufacturer of cement in the factory located at Kymore in Madhya Pradesh. Several cement manufacturing companies as also the appellant had entered into arrangement with the Cement Manufacturing Company of India Limited whereunder the Marketing Company was appointed as the sole and exclusive sales manager for the sale of cement manufactured by the manufacturing companies and the manufacturing companies had agreed not to sell directly or indirectly any of their cement to any person save and except through the Marketing Company. The manufacturing companies were entitled to be paid a certain sum for every ton of cement supplied by them or at such other rate as might be decided upon by the Directors of the Marketing Company.
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The appellant, a manufacturer of cement, entered into an agreement with the Cement Manufacturing Company of India Limited, for sale of cement. Under the agreement, the appellant was to sell its cement only through the marketing company, and certain sums would be paid for the cement supplied by the marketing company, which had the discretion to fix the sale price. For the 1950 51, 1951 52 and 1952 53 periods when the appellant was assessed to sales tax for the supply of cement, it maintained at the assessment stage that the transactions were not exigible to sales tax as they were covered under the Explanation to Article 286(1)(a). The first Appellate Authority and the Board of Revenue did not accept the stand of the appellant. The Board of Revenue held that cement being a controlled commodity, distribution of cement continued to be controlled during the period, notwithstanding the expiry of the Defence of India Rules. Relying on the decision of this Court in the case of Rohtas Industries Limited vs State of Bihar, 12 STC 621 the Board of Revenue held that the Cement Marketing Company was an independent organisation and was carrying on business as an independent entity and that what had actually been taxed were the sales effected by the appellant to the Cement marketing Company and not the sales made to the parties which obtained authorization from the Cement Controller. After analyzing the terms of the contract between the manufacturer and the Marketing Company, this Court held in Rohtas Industries case that there was sale between the manufacturer and the Marketing Company. 251 Following its view taken in Rohtas Industries case as the present case had the same terms, which had been considered in the earlier case, and examining the question whether the sale that took place between the manufacturer and the Marketing Company could be taken to be covered by the Explanation to Article 286(1)(a), this Court, dismissing the appeals, HELD: 1. There was preceding local sales complete in every respect within Madhya Pradesh by which title to the cement had passed from the appellant to the Marketing Company. The concept of inter State sale as brought in by the Sixth Amendment or in the subsequent statute known as the Central Sales Tax Act was not in existence for the relevant period now under consideration. The finding recorded by the authorities was that the delivery of the cement was not the direct result of such sale or purchase of the cement outside the State. In the absence of such privity the Explanation is not attracted to the transactions.[254E G]. In view of the finding recorded by the authorities that the cement in this case actually had not been delivered as a direct result of such sale or purchase for the purpose of consumption outside the State, the only conclusion that can follow is that the Explanation does not apply and the assessments are justified.[254H 255A]. Rohtas Industries Limited vs State of Bihar, 12 STC 621, followed. Mohmd. Serajuddin vs State of Orissa,, distinguished.
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What is the summary of this judgment?
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The Marketing Company had the authority to sell cement at such price or prices and upon such terms as it might in its sole discretion consider appropriate. For the three periods referred to above the appellant had supplied cement manufactured by it to the Marketing Company and maintained at the assessment stage for the respective periods that these were covered by the Explanation to Article 286(1)(1) as it then stood and, therefore, the transactions were not exigible to sales tax in Madhya Pradesh. This stand was negatived by the Assessing Officer, the First Appellate Authority and the Board of Revenue. The Board in the statement of the case drawn up by it held that cement became a controlled commodity from 8th of August, 1942, and notwithstanding the expiry of the Defence of India Rules with effect from 30th of September, 1946, distribution of cement continued to be controlled even during the period. The Marketing Company had its establishment at Nagpur then within Madhya Pradesh which received the orders of authorisations and managed the supply from the factory at Kymore. The Board in its statement further stated: "The entire question in dispute hinges round the fact as to whether the sales in question are inter State in nature or should be regarded as intra State.
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The appellant, a manufacturer of cement, entered into an agreement with the Cement Manufacturing Company of India Limited, for sale of cement. Under the agreement, the appellant was to sell its cement only through the marketing company, and certain sums would be paid for the cement supplied by the marketing company, which had the discretion to fix the sale price. For the 1950 51, 1951 52 and 1952 53 periods when the appellant was assessed to sales tax for the supply of cement, it maintained at the assessment stage that the transactions were not exigible to sales tax as they were covered under the Explanation to Article 286(1)(a). The first Appellate Authority and the Board of Revenue did not accept the stand of the appellant. The Board of Revenue held that cement being a controlled commodity, distribution of cement continued to be controlled during the period, notwithstanding the expiry of the Defence of India Rules. Relying on the decision of this Court in the case of Rohtas Industries Limited vs State of Bihar, 12 STC 621 the Board of Revenue held that the Cement Marketing Company was an independent organisation and was carrying on business as an independent entity and that what had actually been taxed were the sales effected by the appellant to the Cement marketing Company and not the sales made to the parties which obtained authorization from the Cement Controller. After analyzing the terms of the contract between the manufacturer and the Marketing Company, this Court held in Rohtas Industries case that there was sale between the manufacturer and the Marketing Company. 251 Following its view taken in Rohtas Industries case as the present case had the same terms, which had been considered in the earlier case, and examining the question whether the sale that took place between the manufacturer and the Marketing Company could be taken to be covered by the Explanation to Article 286(1)(a), this Court, dismissing the appeals, HELD: 1. There was preceding local sales complete in every respect within Madhya Pradesh by which title to the cement had passed from the appellant to the Marketing Company. The concept of inter State sale as brought in by the Sixth Amendment or in the subsequent statute known as the Central Sales Tax Act was not in existence for the relevant period now under consideration. The finding recorded by the authorities was that the delivery of the cement was not the direct result of such sale or purchase of the cement outside the State. In the absence of such privity the Explanation is not attracted to the transactions.[254E G]. In view of the finding recorded by the authorities that the cement in this case actually had not been delivered as a direct result of such sale or purchase for the purpose of consumption outside the State, the only conclusion that can follow is that the Explanation does not apply and the assessments are justified.[254H 255A]. Rohtas Industries Limited vs State of Bihar, 12 STC 621, followed. Mohmd. Serajuddin vs State of Orissa,, distinguished.
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What is the summary of this judgment?
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It is seen that the Cement Marketing Company is an independent organisation and is carrying on business as an independent entity. It is also seen that what has actually been taxed are the sales effected by the appellant to the Cement Marketing Company 253 of India and not the sales made to the parties which obtained an authorisation from the Cement Controller. This seems to be the crux of the matter. " On this basis reliance was placed on the decision of this Court in the case of Rohtas Industries Limited vs State of Bihar, 12 STC 621 where, after analysing the terms of the contract between the manufacturer (appellant before the Supreme Court) and the Marketing Company, this Court held: "On a review of these terms of the agreement, it is manifest that the manufacturing companies had no control over the terms of the contract of sales by the Marketing Company and that the price at which cement was sold by the Marketing Company could not be controlled by the manufacturing companies; that the manufacturing companies were entitled, for ordinary cement, to be paid at the rate of Rs.24 per ton at works, or at such other rate as might be decided upon by the Directors of the Marketing Company, and in respect of special cement, at such additional rates as the Directors of the Marketing Company might determine; that sale by the Marketing Company was not for and on behalf of the manufacturing companies but for itself and the manufacturing companies had no control over the sales nor had they any concern with the persons to whom cement was sold. In fine, the goods were supplied to the orders of the Marketing Company, which had the right, under the terms of the agreement, to sell on such terms as it thought fit and that the manufacturing companies had the right to receive only the price fixed by the Marketing Company. The relationship in such cases can be regarded only as that of a seller and buyer and not of principal and agent. "
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The appellant, a manufacturer of cement, entered into an agreement with the Cement Manufacturing Company of India Limited, for sale of cement. Under the agreement, the appellant was to sell its cement only through the marketing company, and certain sums would be paid for the cement supplied by the marketing company, which had the discretion to fix the sale price. For the 1950 51, 1951 52 and 1952 53 periods when the appellant was assessed to sales tax for the supply of cement, it maintained at the assessment stage that the transactions were not exigible to sales tax as they were covered under the Explanation to Article 286(1)(a). The first Appellate Authority and the Board of Revenue did not accept the stand of the appellant. The Board of Revenue held that cement being a controlled commodity, distribution of cement continued to be controlled during the period, notwithstanding the expiry of the Defence of India Rules. Relying on the decision of this Court in the case of Rohtas Industries Limited vs State of Bihar, 12 STC 621 the Board of Revenue held that the Cement Marketing Company was an independent organisation and was carrying on business as an independent entity and that what had actually been taxed were the sales effected by the appellant to the Cement marketing Company and not the sales made to the parties which obtained authorization from the Cement Controller. After analyzing the terms of the contract between the manufacturer and the Marketing Company, this Court held in Rohtas Industries case that there was sale between the manufacturer and the Marketing Company. 251 Following its view taken in Rohtas Industries case as the present case had the same terms, which had been considered in the earlier case, and examining the question whether the sale that took place between the manufacturer and the Marketing Company could be taken to be covered by the Explanation to Article 286(1)(a), this Court, dismissing the appeals, HELD: 1. There was preceding local sales complete in every respect within Madhya Pradesh by which title to the cement had passed from the appellant to the Marketing Company. The concept of inter State sale as brought in by the Sixth Amendment or in the subsequent statute known as the Central Sales Tax Act was not in existence for the relevant period now under consideration. The finding recorded by the authorities was that the delivery of the cement was not the direct result of such sale or purchase of the cement outside the State. In the absence of such privity the Explanation is not attracted to the transactions.[254E G]. In view of the finding recorded by the authorities that the cement in this case actually had not been delivered as a direct result of such sale or purchase for the purpose of consumption outside the State, the only conclusion that can follow is that the Explanation does not apply and the assessments are justified.[254H 255A]. Rohtas Industries Limited vs State of Bihar, 12 STC 621, followed. Mohmd. Serajuddin vs State of Orissa,, distinguished.
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What is the summary of this judgment?
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This Court in Rohtas Industries case on a detailed analysis of the terms of the contract came to hold that there was a sale between the manufacturer and the Marketing Company. It is not in dispute that the agreement between the appellant and the Marketing Company in this case has the same terms as this Court considered in Rohtas Industries case. It follows, therefore, that it must be held that there was a sale between the appellant and the Marketing Company. The Marketing Company had its establishment at Nagpur within the State of Madhya Pradesh at that time. There was, therefore, a 254 preceding local sale prior to the sales between the Marketing Company and the allottee of cement by the regulating authority. This Court in Rohtas Industries further found that the transaction between the manufacturer and the Marketing Company had nothing to do with the Marketing Company 's sales to third parties.
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The appellant, a manufacturer of cement, entered into an agreement with the Cement Manufacturing Company of India Limited, for sale of cement. Under the agreement, the appellant was to sell its cement only through the marketing company, and certain sums would be paid for the cement supplied by the marketing company, which had the discretion to fix the sale price. For the 1950 51, 1951 52 and 1952 53 periods when the appellant was assessed to sales tax for the supply of cement, it maintained at the assessment stage that the transactions were not exigible to sales tax as they were covered under the Explanation to Article 286(1)(a). The first Appellate Authority and the Board of Revenue did not accept the stand of the appellant. The Board of Revenue held that cement being a controlled commodity, distribution of cement continued to be controlled during the period, notwithstanding the expiry of the Defence of India Rules. Relying on the decision of this Court in the case of Rohtas Industries Limited vs State of Bihar, 12 STC 621 the Board of Revenue held that the Cement Marketing Company was an independent organisation and was carrying on business as an independent entity and that what had actually been taxed were the sales effected by the appellant to the Cement marketing Company and not the sales made to the parties which obtained authorization from the Cement Controller. After analyzing the terms of the contract between the manufacturer and the Marketing Company, this Court held in Rohtas Industries case that there was sale between the manufacturer and the Marketing Company. 251 Following its view taken in Rohtas Industries case as the present case had the same terms, which had been considered in the earlier case, and examining the question whether the sale that took place between the manufacturer and the Marketing Company could be taken to be covered by the Explanation to Article 286(1)(a), this Court, dismissing the appeals, HELD: 1. There was preceding local sales complete in every respect within Madhya Pradesh by which title to the cement had passed from the appellant to the Marketing Company. The concept of inter State sale as brought in by the Sixth Amendment or in the subsequent statute known as the Central Sales Tax Act was not in existence for the relevant period now under consideration. The finding recorded by the authorities was that the delivery of the cement was not the direct result of such sale or purchase of the cement outside the State. In the absence of such privity the Explanation is not attracted to the transactions.[254E G]. In view of the finding recorded by the authorities that the cement in this case actually had not been delivered as a direct result of such sale or purchase for the purpose of consumption outside the State, the only conclusion that can follow is that the Explanation does not apply and the assessments are justified.[254H 255A]. Rohtas Industries Limited vs State of Bihar, 12 STC 621, followed. Mohmd. Serajuddin vs State of Orissa,, distinguished.
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What is the summary of this judgment?
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There was no privity between the manufacturer and the ultimate consumer who was said to have been located outside the State of Madhya Pradesh. The question for consideration is whether the sale that look place between the manufacturer and the Marketing Company can be taken to be covered by the Explanation. The Explanation which was repealed by the Sixth Amendment of the Constitution in 1956 read thus: "For the purposes of sub clause (a), a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consumption in that State notwithstanding the fact that under the general law relating to sale of goods the property in the goods has by reason of such sale or purchase passed in another State." Rohtas Industries case was dealing with a period prior to the Constitution; therefore, without the Explanation. The question for consideration thus is: does the presence of the Explanation make any difference? What has been found as a fact in the statement of the case is that there was preceding local sales complete in every respect within Madhya Pradesh by which title to the cement had passed from the appellant to the Marketing Company.
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The appellant, a manufacturer of cement, entered into an agreement with the Cement Manufacturing Company of India Limited, for sale of cement. Under the agreement, the appellant was to sell its cement only through the marketing company, and certain sums would be paid for the cement supplied by the marketing company, which had the discretion to fix the sale price. For the 1950 51, 1951 52 and 1952 53 periods when the appellant was assessed to sales tax for the supply of cement, it maintained at the assessment stage that the transactions were not exigible to sales tax as they were covered under the Explanation to Article 286(1)(a). The first Appellate Authority and the Board of Revenue did not accept the stand of the appellant. The Board of Revenue held that cement being a controlled commodity, distribution of cement continued to be controlled during the period, notwithstanding the expiry of the Defence of India Rules. Relying on the decision of this Court in the case of Rohtas Industries Limited vs State of Bihar, 12 STC 621 the Board of Revenue held that the Cement Marketing Company was an independent organisation and was carrying on business as an independent entity and that what had actually been taxed were the sales effected by the appellant to the Cement marketing Company and not the sales made to the parties which obtained authorization from the Cement Controller. After analyzing the terms of the contract between the manufacturer and the Marketing Company, this Court held in Rohtas Industries case that there was sale between the manufacturer and the Marketing Company. 251 Following its view taken in Rohtas Industries case as the present case had the same terms, which had been considered in the earlier case, and examining the question whether the sale that took place between the manufacturer and the Marketing Company could be taken to be covered by the Explanation to Article 286(1)(a), this Court, dismissing the appeals, HELD: 1. There was preceding local sales complete in every respect within Madhya Pradesh by which title to the cement had passed from the appellant to the Marketing Company. The concept of inter State sale as brought in by the Sixth Amendment or in the subsequent statute known as the Central Sales Tax Act was not in existence for the relevant period now under consideration. The finding recorded by the authorities was that the delivery of the cement was not the direct result of such sale or purchase of the cement outside the State. In the absence of such privity the Explanation is not attracted to the transactions.[254E G]. In view of the finding recorded by the authorities that the cement in this case actually had not been delivered as a direct result of such sale or purchase for the purpose of consumption outside the State, the only conclusion that can follow is that the Explanation does not apply and the assessments are justified.[254H 255A]. Rohtas Industries Limited vs State of Bihar, 12 STC 621, followed. Mohmd. Serajuddin vs State of Orissa,, distinguished.
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What is the summary of this judgment?
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The concept of inter State sale as brought in by the Sixth Amendment or in the subsequent statute known as the Central Sales Tax Act was not in existence for the relevant period now under consideration. The finding recorded by the authorities is that the delivery of the cement was not the direct result of such sale or purchase of the cement outside the State. In the absence of such privity the Explanation is not attracted to the transactions. An attempt was made by counsel to rely upon some of the later decisions of this Court where with reference to the provisions contained in the Central Sales Tax Act the law had been laid down. It is unnecessary to refer to them in view of the finding recorded by the authorities that the cement in this case actually had not been delivered 255 as a direct result of such sale or purchase for the purpose of consumption outside the State. That is a finding clinching enough and once that is taken as binding on this Court, the only conclusion that can follow is that the Explanation does not apply and the assessments are justified.
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The appellant, a manufacturer of cement, entered into an agreement with the Cement Manufacturing Company of India Limited, for sale of cement. Under the agreement, the appellant was to sell its cement only through the marketing company, and certain sums would be paid for the cement supplied by the marketing company, which had the discretion to fix the sale price. For the 1950 51, 1951 52 and 1952 53 periods when the appellant was assessed to sales tax for the supply of cement, it maintained at the assessment stage that the transactions were not exigible to sales tax as they were covered under the Explanation to Article 286(1)(a). The first Appellate Authority and the Board of Revenue did not accept the stand of the appellant. The Board of Revenue held that cement being a controlled commodity, distribution of cement continued to be controlled during the period, notwithstanding the expiry of the Defence of India Rules. Relying on the decision of this Court in the case of Rohtas Industries Limited vs State of Bihar, 12 STC 621 the Board of Revenue held that the Cement Marketing Company was an independent organisation and was carrying on business as an independent entity and that what had actually been taxed were the sales effected by the appellant to the Cement marketing Company and not the sales made to the parties which obtained authorization from the Cement Controller. After analyzing the terms of the contract between the manufacturer and the Marketing Company, this Court held in Rohtas Industries case that there was sale between the manufacturer and the Marketing Company. 251 Following its view taken in Rohtas Industries case as the present case had the same terms, which had been considered in the earlier case, and examining the question whether the sale that took place between the manufacturer and the Marketing Company could be taken to be covered by the Explanation to Article 286(1)(a), this Court, dismissing the appeals, HELD: 1. There was preceding local sales complete in every respect within Madhya Pradesh by which title to the cement had passed from the appellant to the Marketing Company. The concept of inter State sale as brought in by the Sixth Amendment or in the subsequent statute known as the Central Sales Tax Act was not in existence for the relevant period now under consideration. The finding recorded by the authorities was that the delivery of the cement was not the direct result of such sale or purchase of the cement outside the State. In the absence of such privity the Explanation is not attracted to the transactions.[254E G]. In view of the finding recorded by the authorities that the cement in this case actually had not been delivered as a direct result of such sale or purchase for the purpose of consumption outside the State, the only conclusion that can follow is that the Explanation does not apply and the assessments are justified.[254H 255A]. Rohtas Industries Limited vs State of Bihar, 12 STC 621, followed. Mohmd. Serajuddin vs State of Orissa,, distinguished.
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What is the summary of this judgment?
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The ratio of Mohd. Serajuddin vs State of Orissa, is also against the appellant 's stand. We accordingly dismiss the appeals and uphold the decisions of the High Court. There would be no order for costs. V.P.R. Appeals dismissed.
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The appellant, a manufacturer of cement, entered into an agreement with the Cement Manufacturing Company of India Limited, for sale of cement. Under the agreement, the appellant was to sell its cement only through the marketing company, and certain sums would be paid for the cement supplied by the marketing company, which had the discretion to fix the sale price. For the 1950 51, 1951 52 and 1952 53 periods when the appellant was assessed to sales tax for the supply of cement, it maintained at the assessment stage that the transactions were not exigible to sales tax as they were covered under the Explanation to Article 286(1)(a). The first Appellate Authority and the Board of Revenue did not accept the stand of the appellant. The Board of Revenue held that cement being a controlled commodity, distribution of cement continued to be controlled during the period, notwithstanding the expiry of the Defence of India Rules. Relying on the decision of this Court in the case of Rohtas Industries Limited vs State of Bihar, 12 STC 621 the Board of Revenue held that the Cement Marketing Company was an independent organisation and was carrying on business as an independent entity and that what had actually been taxed were the sales effected by the appellant to the Cement marketing Company and not the sales made to the parties which obtained authorization from the Cement Controller. After analyzing the terms of the contract between the manufacturer and the Marketing Company, this Court held in Rohtas Industries case that there was sale between the manufacturer and the Marketing Company. 251 Following its view taken in Rohtas Industries case as the present case had the same terms, which had been considered in the earlier case, and examining the question whether the sale that took place between the manufacturer and the Marketing Company could be taken to be covered by the Explanation to Article 286(1)(a), this Court, dismissing the appeals, HELD: 1. There was preceding local sales complete in every respect within Madhya Pradesh by which title to the cement had passed from the appellant to the Marketing Company. The concept of inter State sale as brought in by the Sixth Amendment or in the subsequent statute known as the Central Sales Tax Act was not in existence for the relevant period now under consideration. The finding recorded by the authorities was that the delivery of the cement was not the direct result of such sale or purchase of the cement outside the State. In the absence of such privity the Explanation is not attracted to the transactions.[254E G]. In view of the finding recorded by the authorities that the cement in this case actually had not been delivered as a direct result of such sale or purchase for the purpose of consumption outside the State, the only conclusion that can follow is that the Explanation does not apply and the assessments are justified.[254H 255A]. Rohtas Industries Limited vs State of Bihar, 12 STC 621, followed. Mohmd. Serajuddin vs State of Orissa,, distinguished.
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What is the summary of this judgment?
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Appeal No. 36 of 1967. Appeal by special leave from the judgment and order dated August 25, 1966 of the Punjab High Court, Circuit Bench at Delhi in Letters Patent Appeal No. 36 D of 1966. Bishan Narain, R. Mahatingier and Ganpat Rai, for the appellant. R. H. Dhebar and section P. Nayar, for respondent Nos.
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The appellant executed a usufructuary mortgage of his house and continued to reside in it as a tenant under a lease obtained from the mortgagee. In 1949, the mortgagee left for Pakistan. He was declared an evacuee and his mortgagee interest in the mortgaged property vested in the Custodian under section 8 of the. Under section 12, the Custodian evicted the appellant and allotted it to others as tenants. In spite of demands by the appellant and the appellant tendering the mortgage amount, the Custodian refused to hand over vacant possession of the house to the appellant. The appellant applied to the Competent Officer under the. The Officer determined the mortgage debt due from the appellant and the appellant claimed vacant possession against tender of payment by him of the amount. The Officer rejected the claim and ordered the sale of the property under s.10(b)(ii) of the Separation Act, for satisfaction of the mortgage debt. Thereafter, the appellant paid the entire mortgage debt and the Competent Officer accepted the amount. On the question whether the appellant was entitled to vacant possession and have the order of sale set aside, HELD:(1) Section 4 of the gives to that Act an overriding effect in relation to any other law for the time being in force, and hence the law under the Transfer of Property set, is not applicable. Though s.12 of the Act empowers the Custodian to cancel an allotment or a tenancy, created by him, under r.14(2) of the Administration of Evacuee Property (Central) Rules, 1950, the Custodian can evict a person only on a ground justifying eviction of a tenant under a law relating to rent control or for any violation of the conditions of the lease or allotment. The Custodian could not, therefore, give vacant possession of the property to the appellant on his tender of payment of the mortgage amount. [855 H; 856 A B, D F] (2) The, was passed on account of the difficulty of administering evacuee properties in which there were both evacuee and non evacuee interests and to resolve the hardship felt by non evacuees, who by reason of such properties being in the possession of the Possession were unable to obtain satisfaction of their claims in view of the prohibitive provisions of that Act. But there is no provisions by which the Custodian is made subject to the power or control of the Competent Officer or which enables the Competent Officer 852 to pass an order which would curtail or otherwise affect the powers of the Custodian. Though under s.10(b)(i) of the Separation Act, the Competent Officer can pay to the Custodian the mortgage debt and redeem the mortgaged property, his power is subject to the rules made under that Act. [856 F G; 858 B C, G H] (3) Reading the relevant provisions namely, section 12 of the and r. 14 of the Rules made thereunder, and section 10 of the Separation Act and r. 11B of the rules made thereunder, together, the position is : (i) that though the Competent ' Officer must accept the mortgage amount when tendered by a mortgagor and the mortgage debt is thereupon satisfied, he cannot exercise the power to redeem the mortgaged property and order the Custodian to deliver up its vacant possession to the mortgagor in the absence of any agreement between the mortgagor and the Custodian; (ii) that the Competent Officer can order sale only for satisfaction of the mortgage debt and for distribution of the sale proceeds between the mortgagor and mortgagee. Since in the present case, the mortgage amount had been paid by the appellant and accepted by the Competent officer, the order directing sale is unten able and should be set aside; and (iii) that in exercising his jurisdiction under section 10, the Competent Officer cannot direct the Custodian to cancel or vary the terms of the leases or allotments made or granted by him. Therefore the Competent Officer can direct only symbolical possession of the mortgaged,property to be given to the appellant, however, harsh and unfair it may apparently be. [860 D G; 861 B, E H; 862 A C] The All India Film Corporation vs Raja Gyan Nath, referred to.
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What is the summary of this judgment?
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1 and 3. In 1943 he mortgaged the said property with possession in favour of one K. B. Bunyad Hussain but obtained a lease thereof at the same time from the mortgagee and continued to reside therein as tenant. In November 1949, the mortgagee left for Pakistan a whereupon the Custodian of Evacuee Property under the (hereinafter referred to as the Administration Act) declared him to be an evacuee and his interest in the said property as the mortgagee as evacuee, property. The appellant alleged that sometime in November 1949 the 853 Custodian forcibly dispossessed him and either allotted or let out, or allowed the said premises to be occupied by certain persons. In 1954, the appellant made an application to the Competent Officer under the (hereinafter referred to as the Separation Act) for separating his interest as the mortgagor and tenant in the said property. In those proceedings a sum of Rs.
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The appellant executed a usufructuary mortgage of his house and continued to reside in it as a tenant under a lease obtained from the mortgagee. In 1949, the mortgagee left for Pakistan. He was declared an evacuee and his mortgagee interest in the mortgaged property vested in the Custodian under section 8 of the. Under section 12, the Custodian evicted the appellant and allotted it to others as tenants. In spite of demands by the appellant and the appellant tendering the mortgage amount, the Custodian refused to hand over vacant possession of the house to the appellant. The appellant applied to the Competent Officer under the. The Officer determined the mortgage debt due from the appellant and the appellant claimed vacant possession against tender of payment by him of the amount. The Officer rejected the claim and ordered the sale of the property under s.10(b)(ii) of the Separation Act, for satisfaction of the mortgage debt. Thereafter, the appellant paid the entire mortgage debt and the Competent Officer accepted the amount. On the question whether the appellant was entitled to vacant possession and have the order of sale set aside, HELD:(1) Section 4 of the gives to that Act an overriding effect in relation to any other law for the time being in force, and hence the law under the Transfer of Property set, is not applicable. Though s.12 of the Act empowers the Custodian to cancel an allotment or a tenancy, created by him, under r.14(2) of the Administration of Evacuee Property (Central) Rules, 1950, the Custodian can evict a person only on a ground justifying eviction of a tenant under a law relating to rent control or for any violation of the conditions of the lease or allotment. The Custodian could not, therefore, give vacant possession of the property to the appellant on his tender of payment of the mortgage amount. [855 H; 856 A B, D F] (2) The, was passed on account of the difficulty of administering evacuee properties in which there were both evacuee and non evacuee interests and to resolve the hardship felt by non evacuees, who by reason of such properties being in the possession of the Possession were unable to obtain satisfaction of their claims in view of the prohibitive provisions of that Act. But there is no provisions by which the Custodian is made subject to the power or control of the Competent Officer or which enables the Competent Officer 852 to pass an order which would curtail or otherwise affect the powers of the Custodian. Though under s.10(b)(i) of the Separation Act, the Competent Officer can pay to the Custodian the mortgage debt and redeem the mortgaged property, his power is subject to the rules made under that Act. [856 F G; 858 B C, G H] (3) Reading the relevant provisions namely, section 12 of the and r. 14 of the Rules made thereunder, and section 10 of the Separation Act and r. 11B of the rules made thereunder, together, the position is : (i) that though the Competent ' Officer must accept the mortgage amount when tendered by a mortgagor and the mortgage debt is thereupon satisfied, he cannot exercise the power to redeem the mortgaged property and order the Custodian to deliver up its vacant possession to the mortgagor in the absence of any agreement between the mortgagor and the Custodian; (ii) that the Competent Officer can order sale only for satisfaction of the mortgage debt and for distribution of the sale proceeds between the mortgagor and mortgagee. Since in the present case, the mortgage amount had been paid by the appellant and accepted by the Competent officer, the order directing sale is unten able and should be set aside; and (iii) that in exercising his jurisdiction under section 10, the Competent Officer cannot direct the Custodian to cancel or vary the terms of the leases or allotments made or granted by him. Therefore the Competent Officer can direct only symbolical possession of the mortgaged,property to be given to the appellant, however, harsh and unfair it may apparently be. [860 D G; 861 B, E H; 862 A C] The All India Film Corporation vs Raja Gyan Nath, referred to.
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What is the summary of this judgment?
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1,45,735/ was ultimately held to be due as the mortgage debt under the said mortgage. The appellant claimed that he was entitled to obtain vacant possession of the said property against payment by him of the mortgage debt. The claim was rejected on the ground that there was no agreement between the appellant and the Custodian for getting the vacant possession and also on the ground that the Competent Officer, under the Separation Act, had no power to direct the Custodian to hand over to the appellant vacant possession. From that time onwards the appellant made diverse applications to the Competent Officer and the Appellate Officer under the Separation Act for obtaining vacant possession against payment of the mortgage debt. In one such application made in 1958 he alleged that a compromise had been arrived at between him and the Custodian under which he would pay the, mortgage, debt and the Custodian thereupon would simultaneously hand over to him vacant possession. By his order dated March 23, 1959, the Appellate Officer, however, held that no such compromise had been entered into by the Custodian and that the correspondence between the appellant and that authority merely indicated that what was agreed to was that upon the appellant lodging certain verified claims an open portion shown as A, B, C and D in the plan of the property would be handed over to him.
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The appellant executed a usufructuary mortgage of his house and continued to reside in it as a tenant under a lease obtained from the mortgagee. In 1949, the mortgagee left for Pakistan. He was declared an evacuee and his mortgagee interest in the mortgaged property vested in the Custodian under section 8 of the. Under section 12, the Custodian evicted the appellant and allotted it to others as tenants. In spite of demands by the appellant and the appellant tendering the mortgage amount, the Custodian refused to hand over vacant possession of the house to the appellant. The appellant applied to the Competent Officer under the. The Officer determined the mortgage debt due from the appellant and the appellant claimed vacant possession against tender of payment by him of the amount. The Officer rejected the claim and ordered the sale of the property under s.10(b)(ii) of the Separation Act, for satisfaction of the mortgage debt. Thereafter, the appellant paid the entire mortgage debt and the Competent Officer accepted the amount. On the question whether the appellant was entitled to vacant possession and have the order of sale set aside, HELD:(1) Section 4 of the gives to that Act an overriding effect in relation to any other law for the time being in force, and hence the law under the Transfer of Property set, is not applicable. Though s.12 of the Act empowers the Custodian to cancel an allotment or a tenancy, created by him, under r.14(2) of the Administration of Evacuee Property (Central) Rules, 1950, the Custodian can evict a person only on a ground justifying eviction of a tenant under a law relating to rent control or for any violation of the conditions of the lease or allotment. The Custodian could not, therefore, give vacant possession of the property to the appellant on his tender of payment of the mortgage amount. [855 H; 856 A B, D F] (2) The, was passed on account of the difficulty of administering evacuee properties in which there were both evacuee and non evacuee interests and to resolve the hardship felt by non evacuees, who by reason of such properties being in the possession of the Possession were unable to obtain satisfaction of their claims in view of the prohibitive provisions of that Act. But there is no provisions by which the Custodian is made subject to the power or control of the Competent Officer or which enables the Competent Officer 852 to pass an order which would curtail or otherwise affect the powers of the Custodian. Though under s.10(b)(i) of the Separation Act, the Competent Officer can pay to the Custodian the mortgage debt and redeem the mortgaged property, his power is subject to the rules made under that Act. [856 F G; 858 B C, G H] (3) Reading the relevant provisions namely, section 12 of the and r. 14 of the Rules made thereunder, and section 10 of the Separation Act and r. 11B of the rules made thereunder, together, the position is : (i) that though the Competent ' Officer must accept the mortgage amount when tendered by a mortgagor and the mortgage debt is thereupon satisfied, he cannot exercise the power to redeem the mortgaged property and order the Custodian to deliver up its vacant possession to the mortgagor in the absence of any agreement between the mortgagor and the Custodian; (ii) that the Competent Officer can order sale only for satisfaction of the mortgage debt and for distribution of the sale proceeds between the mortgagor and mortgagee. Since in the present case, the mortgage amount had been paid by the appellant and accepted by the Competent officer, the order directing sale is unten able and should be set aside; and (iii) that in exercising his jurisdiction under section 10, the Competent Officer cannot direct the Custodian to cancel or vary the terms of the leases or allotments made or granted by him. Therefore the Competent Officer can direct only symbolical possession of the mortgaged,property to be given to the appellant, however, harsh and unfair it may apparently be. [860 D G; 861 B, E H; 862 A C] The All India Film Corporation vs Raja Gyan Nath, referred to.
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What is the summary of this judgment?
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On this finding the Appellate Officer dismissed the appellant 's application as he had neither paid the mortgage money nor put in the verified claims as suggested in the said correspondence and confirmed the order of the Competent Officer under which the property had been ordered to be sold in the absence of any agreement with the ' Custodian or the payment of the mortgage debt. The appellant then filed a writ petition in the High Court of Punjab (in the Circuit Bench at Delhi) for quashing the said order of sale and for a direction to the Competent Officer to hand over vacant possession against payment by him of the mortgage debt. A learned Single Judge dismissed the petition holding that the Competent Officer had no jurisdiction to order such vacant possession against the Custodian or against the tenants or allottees inducted on the property by the Custodian. The Letters Patent appeal against that judgment and order was also dismissed. The appellant then filed the present appeal after obtaining special leave from this Court. 854 It is not disputed that until the time when the Competent Officer passed his order for sale of the property and the Appellate Officer confirmed it the appellant had not paid the mortgage amount, nor was there any agreement between him and the Custodian where under the latter would hand over vacant possession of the property against payment of the mortgage debt.
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The appellant executed a usufructuary mortgage of his house and continued to reside in it as a tenant under a lease obtained from the mortgagee. In 1949, the mortgagee left for Pakistan. He was declared an evacuee and his mortgagee interest in the mortgaged property vested in the Custodian under section 8 of the. Under section 12, the Custodian evicted the appellant and allotted it to others as tenants. In spite of demands by the appellant and the appellant tendering the mortgage amount, the Custodian refused to hand over vacant possession of the house to the appellant. The appellant applied to the Competent Officer under the. The Officer determined the mortgage debt due from the appellant and the appellant claimed vacant possession against tender of payment by him of the amount. The Officer rejected the claim and ordered the sale of the property under s.10(b)(ii) of the Separation Act, for satisfaction of the mortgage debt. Thereafter, the appellant paid the entire mortgage debt and the Competent Officer accepted the amount. On the question whether the appellant was entitled to vacant possession and have the order of sale set aside, HELD:(1) Section 4 of the gives to that Act an overriding effect in relation to any other law for the time being in force, and hence the law under the Transfer of Property set, is not applicable. Though s.12 of the Act empowers the Custodian to cancel an allotment or a tenancy, created by him, under r.14(2) of the Administration of Evacuee Property (Central) Rules, 1950, the Custodian can evict a person only on a ground justifying eviction of a tenant under a law relating to rent control or for any violation of the conditions of the lease or allotment. The Custodian could not, therefore, give vacant possession of the property to the appellant on his tender of payment of the mortgage amount. [855 H; 856 A B, D F] (2) The, was passed on account of the difficulty of administering evacuee properties in which there were both evacuee and non evacuee interests and to resolve the hardship felt by non evacuees, who by reason of such properties being in the possession of the Possession were unable to obtain satisfaction of their claims in view of the prohibitive provisions of that Act. But there is no provisions by which the Custodian is made subject to the power or control of the Competent Officer or which enables the Competent Officer 852 to pass an order which would curtail or otherwise affect the powers of the Custodian. Though under s.10(b)(i) of the Separation Act, the Competent Officer can pay to the Custodian the mortgage debt and redeem the mortgaged property, his power is subject to the rules made under that Act. [856 F G; 858 B C, G H] (3) Reading the relevant provisions namely, section 12 of the and r. 14 of the Rules made thereunder, and section 10 of the Separation Act and r. 11B of the rules made thereunder, together, the position is : (i) that though the Competent ' Officer must accept the mortgage amount when tendered by a mortgagor and the mortgage debt is thereupon satisfied, he cannot exercise the power to redeem the mortgaged property and order the Custodian to deliver up its vacant possession to the mortgagor in the absence of any agreement between the mortgagor and the Custodian; (ii) that the Competent Officer can order sale only for satisfaction of the mortgage debt and for distribution of the sale proceeds between the mortgagor and mortgagee. Since in the present case, the mortgage amount had been paid by the appellant and accepted by the Competent officer, the order directing sale is unten able and should be set aside; and (iii) that in exercising his jurisdiction under section 10, the Competent Officer cannot direct the Custodian to cancel or vary the terms of the leases or allotments made or granted by him. Therefore the Competent Officer can direct only symbolical possession of the mortgaged,property to be given to the appellant, however, harsh and unfair it may apparently be. [860 D G; 861 B, E H; 862 A C] The All India Film Corporation vs Raja Gyan Nath, referred to.
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What is the summary of this judgment?
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However, it is conceded by counsel for respondents 1 and 3 that the appellant has since then paid the entire mortgage debt and the Competent Officer has under section 10 of the Separation Act accepted that amount. Two questions on these facts, therefore, arise, for deter mination; (1) whether the order for sale passed by the Competent Officer and confirmed by the Appellate Officer was rightly passed although the appellant had repeatedly offered to pay the mortgage debt on condition, however, that he would be given vacant possession at the same time, and (2) assuming that the Competent Officer had no power to direct the Custodian to hand over vacant possession, what was the effect of the repayment of the mortgage debt by the appellant since then and the acceptance thereof by the Competent Officer. The rights in the property in question which vested in the Custodian were those of the mortgagee on his being declared an evacuee and his rights as such mortgagee in the property in question as evacuee property. Under the the interest which the Custodian could claim was the interest in the property transferred to the mortgagee for securing repayment of the money advanced by him. Since the mortgage was usufructuary, the mortgagee, and after his having been declared an evacuee, the Custodian, could claim and retain possession till the mortgage debt was paid and the mortgage was discharged. If the property is let out in the meantime, the mortgagee and those claiming his interest therein are entitled to receive the rents and profits accruing front the property in lieu of interest or towards part payment of the mortgage debt.
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The appellant executed a usufructuary mortgage of his house and continued to reside in it as a tenant under a lease obtained from the mortgagee. In 1949, the mortgagee left for Pakistan. He was declared an evacuee and his mortgagee interest in the mortgaged property vested in the Custodian under section 8 of the. Under section 12, the Custodian evicted the appellant and allotted it to others as tenants. In spite of demands by the appellant and the appellant tendering the mortgage amount, the Custodian refused to hand over vacant possession of the house to the appellant. The appellant applied to the Competent Officer under the. The Officer determined the mortgage debt due from the appellant and the appellant claimed vacant possession against tender of payment by him of the amount. The Officer rejected the claim and ordered the sale of the property under s.10(b)(ii) of the Separation Act, for satisfaction of the mortgage debt. Thereafter, the appellant paid the entire mortgage debt and the Competent Officer accepted the amount. On the question whether the appellant was entitled to vacant possession and have the order of sale set aside, HELD:(1) Section 4 of the gives to that Act an overriding effect in relation to any other law for the time being in force, and hence the law under the Transfer of Property set, is not applicable. Though s.12 of the Act empowers the Custodian to cancel an allotment or a tenancy, created by him, under r.14(2) of the Administration of Evacuee Property (Central) Rules, 1950, the Custodian can evict a person only on a ground justifying eviction of a tenant under a law relating to rent control or for any violation of the conditions of the lease or allotment. The Custodian could not, therefore, give vacant possession of the property to the appellant on his tender of payment of the mortgage amount. [855 H; 856 A B, D F] (2) The, was passed on account of the difficulty of administering evacuee properties in which there were both evacuee and non evacuee interests and to resolve the hardship felt by non evacuees, who by reason of such properties being in the possession of the Possession were unable to obtain satisfaction of their claims in view of the prohibitive provisions of that Act. But there is no provisions by which the Custodian is made subject to the power or control of the Competent Officer or which enables the Competent Officer 852 to pass an order which would curtail or otherwise affect the powers of the Custodian. Though under s.10(b)(i) of the Separation Act, the Competent Officer can pay to the Custodian the mortgage debt and redeem the mortgaged property, his power is subject to the rules made under that Act. [856 F G; 858 B C, G H] (3) Reading the relevant provisions namely, section 12 of the and r. 14 of the Rules made thereunder, and section 10 of the Separation Act and r. 11B of the rules made thereunder, together, the position is : (i) that though the Competent ' Officer must accept the mortgage amount when tendered by a mortgagor and the mortgage debt is thereupon satisfied, he cannot exercise the power to redeem the mortgaged property and order the Custodian to deliver up its vacant possession to the mortgagor in the absence of any agreement between the mortgagor and the Custodian; (ii) that the Competent Officer can order sale only for satisfaction of the mortgage debt and for distribution of the sale proceeds between the mortgagor and mortgagee. Since in the present case, the mortgage amount had been paid by the appellant and accepted by the Competent officer, the order directing sale is unten able and should be set aside; and (iii) that in exercising his jurisdiction under section 10, the Competent Officer cannot direct the Custodian to cancel or vary the terms of the leases or allotments made or granted by him. Therefore the Competent Officer can direct only symbolical possession of the mortgaged,property to be given to the appellant, however, harsh and unfair it may apparently be. [860 D G; 861 B, E H; 862 A C] The All India Film Corporation vs Raja Gyan Nath, referred to.
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What is the summary of this judgment?
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Under section 60 of that Act, the mortgagor has a right at any time after the principal amount has become due to require the mortgagee on payment or tender of the mortgage debt (a) to deliver to him the mortgage deed and all other documents relating to the mortgaged property which are in the mortgagee 's possession or power, (b) to deliver possession where the mortgagee is in possession of the mortgaged property and (c) to retransfer the mortgaged property to him or to such third person as he may direct at his cost. Under section 76, the mortgagee in possession. has to manage the property as a person of ordinary prudence would manage it if it were his own. Under section 83, the mortgagor, provided his right of redemption is not barred, may deposit in the court where he might have instituted a suit for redemption to the account of the mortgagee the mortgage debt then due. The court thereupon has to issue a notice to the mort 855 gagee and on the mortgagee stating the amount due to him and his willingness to accept the money so deposited in full discharge of the mortgage debt, pay the amount to the mortgagee on his depositing the mortgage deed and all other documents relating to the mortgaged property. Where the mortgagee is in possession of the property, the court before paying the amount has to ask him to deliver possession thereof to the mortgagor.
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The appellant executed a usufructuary mortgage of his house and continued to reside in it as a tenant under a lease obtained from the mortgagee. In 1949, the mortgagee left for Pakistan. He was declared an evacuee and his mortgagee interest in the mortgaged property vested in the Custodian under section 8 of the. Under section 12, the Custodian evicted the appellant and allotted it to others as tenants. In spite of demands by the appellant and the appellant tendering the mortgage amount, the Custodian refused to hand over vacant possession of the house to the appellant. The appellant applied to the Competent Officer under the. The Officer determined the mortgage debt due from the appellant and the appellant claimed vacant possession against tender of payment by him of the amount. The Officer rejected the claim and ordered the sale of the property under s.10(b)(ii) of the Separation Act, for satisfaction of the mortgage debt. Thereafter, the appellant paid the entire mortgage debt and the Competent Officer accepted the amount. On the question whether the appellant was entitled to vacant possession and have the order of sale set aside, HELD:(1) Section 4 of the gives to that Act an overriding effect in relation to any other law for the time being in force, and hence the law under the Transfer of Property set, is not applicable. Though s.12 of the Act empowers the Custodian to cancel an allotment or a tenancy, created by him, under r.14(2) of the Administration of Evacuee Property (Central) Rules, 1950, the Custodian can evict a person only on a ground justifying eviction of a tenant under a law relating to rent control or for any violation of the conditions of the lease or allotment. The Custodian could not, therefore, give vacant possession of the property to the appellant on his tender of payment of the mortgage amount. [855 H; 856 A B, D F] (2) The, was passed on account of the difficulty of administering evacuee properties in which there were both evacuee and non evacuee interests and to resolve the hardship felt by non evacuees, who by reason of such properties being in the possession of the Possession were unable to obtain satisfaction of their claims in view of the prohibitive provisions of that Act. But there is no provisions by which the Custodian is made subject to the power or control of the Competent Officer or which enables the Competent Officer 852 to pass an order which would curtail or otherwise affect the powers of the Custodian. Though under s.10(b)(i) of the Separation Act, the Competent Officer can pay to the Custodian the mortgage debt and redeem the mortgaged property, his power is subject to the rules made under that Act. [856 F G; 858 B C, G H] (3) Reading the relevant provisions namely, section 12 of the and r. 14 of the Rules made thereunder, and section 10 of the Separation Act and r. 11B of the rules made thereunder, together, the position is : (i) that though the Competent ' Officer must accept the mortgage amount when tendered by a mortgagor and the mortgage debt is thereupon satisfied, he cannot exercise the power to redeem the mortgaged property and order the Custodian to deliver up its vacant possession to the mortgagor in the absence of any agreement between the mortgagor and the Custodian; (ii) that the Competent Officer can order sale only for satisfaction of the mortgage debt and for distribution of the sale proceeds between the mortgagor and mortgagee. Since in the present case, the mortgage amount had been paid by the appellant and accepted by the Competent officer, the order directing sale is unten able and should be set aside; and (iii) that in exercising his jurisdiction under section 10, the Competent Officer cannot direct the Custodian to cancel or vary the terms of the leases or allotments made or granted by him. Therefore the Competent Officer can direct only symbolical possession of the mortgaged,property to be given to the appellant, however, harsh and unfair it may apparently be. [860 D G; 861 B, E H; 862 A C] The All India Film Corporation vs Raja Gyan Nath, referred to.
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What is the summary of this judgment?
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When the mortgagor has tendered or deposited in court the. mortgage debt together with interest thereon and has done all that is to be done by him to enable the mortgagee to take such amount out of court, and a notice, as aforesaid, has been served on the mortgagee under section 83 interest ceases to run. If the mortgagee thereafter refuse& to accept the amount so deposited or to deliver the mortgage deed and other documents or possession of the property where it is in his possession, the remedy of the mortgagor is to file a suit for redemption. The position, therefore, is that upon the mortgage being paid off, the mortgagor is entitled to have the property restored to him free from the mortgagee 's security. The repayment of the debt would be made against delivery of possession and of the mortgage deed and other documents, and these have to be simultaneous transactions. A tender of the mortgage deed or a deposit thereof in court conditional upon the mortgagee than and there delivering possession or executing reconveyable, if required, and handing over the deeds would be a good tender so that if it were to be refused interest would cease running.
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The appellant executed a usufructuary mortgage of his house and continued to reside in it as a tenant under a lease obtained from the mortgagee. In 1949, the mortgagee left for Pakistan. He was declared an evacuee and his mortgagee interest in the mortgaged property vested in the Custodian under section 8 of the. Under section 12, the Custodian evicted the appellant and allotted it to others as tenants. In spite of demands by the appellant and the appellant tendering the mortgage amount, the Custodian refused to hand over vacant possession of the house to the appellant. The appellant applied to the Competent Officer under the. The Officer determined the mortgage debt due from the appellant and the appellant claimed vacant possession against tender of payment by him of the amount. The Officer rejected the claim and ordered the sale of the property under s.10(b)(ii) of the Separation Act, for satisfaction of the mortgage debt. Thereafter, the appellant paid the entire mortgage debt and the Competent Officer accepted the amount. On the question whether the appellant was entitled to vacant possession and have the order of sale set aside, HELD:(1) Section 4 of the gives to that Act an overriding effect in relation to any other law for the time being in force, and hence the law under the Transfer of Property set, is not applicable. Though s.12 of the Act empowers the Custodian to cancel an allotment or a tenancy, created by him, under r.14(2) of the Administration of Evacuee Property (Central) Rules, 1950, the Custodian can evict a person only on a ground justifying eviction of a tenant under a law relating to rent control or for any violation of the conditions of the lease or allotment. The Custodian could not, therefore, give vacant possession of the property to the appellant on his tender of payment of the mortgage amount. [855 H; 856 A B, D F] (2) The, was passed on account of the difficulty of administering evacuee properties in which there were both evacuee and non evacuee interests and to resolve the hardship felt by non evacuees, who by reason of such properties being in the possession of the Possession were unable to obtain satisfaction of their claims in view of the prohibitive provisions of that Act. But there is no provisions by which the Custodian is made subject to the power or control of the Competent Officer or which enables the Competent Officer 852 to pass an order which would curtail or otherwise affect the powers of the Custodian. Though under s.10(b)(i) of the Separation Act, the Competent Officer can pay to the Custodian the mortgage debt and redeem the mortgaged property, his power is subject to the rules made under that Act. [856 F G; 858 B C, G H] (3) Reading the relevant provisions namely, section 12 of the and r. 14 of the Rules made thereunder, and section 10 of the Separation Act and r. 11B of the rules made thereunder, together, the position is : (i) that though the Competent ' Officer must accept the mortgage amount when tendered by a mortgagor and the mortgage debt is thereupon satisfied, he cannot exercise the power to redeem the mortgaged property and order the Custodian to deliver up its vacant possession to the mortgagor in the absence of any agreement between the mortgagor and the Custodian; (ii) that the Competent Officer can order sale only for satisfaction of the mortgage debt and for distribution of the sale proceeds between the mortgagor and mortgagee. Since in the present case, the mortgage amount had been paid by the appellant and accepted by the Competent officer, the order directing sale is unten able and should be set aside; and (iii) that in exercising his jurisdiction under section 10, the Competent Officer cannot direct the Custodian to cancel or vary the terms of the leases or allotments made or granted by him. Therefore the Competent Officer can direct only symbolical possession of the mortgaged,property to be given to the appellant, however, harsh and unfair it may apparently be. [860 D G; 861 B, E H; 862 A C] The All India Film Corporation vs Raja Gyan Nath, referred to.
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What is the summary of this judgment?
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It follows that a mortgagee is not permitted to deal with the property in such a way that upon discharge of the debt the property cannot be restored. [see Fisher. & Lightwood 's Law of Mortgage (8th ed.) p. 482]. Is the position of a mortgagor any the different than under the by reason of the evacuee property legislation ? In other words, could not the appellant have tendered to the Competent Officer the mortgage amount due by him on condition that he should be given physical and not merely symbolical possession of the mortgaged property.
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The appellant executed a usufructuary mortgage of his house and continued to reside in it as a tenant under a lease obtained from the mortgagee. In 1949, the mortgagee left for Pakistan. He was declared an evacuee and his mortgagee interest in the mortgaged property vested in the Custodian under section 8 of the. Under section 12, the Custodian evicted the appellant and allotted it to others as tenants. In spite of demands by the appellant and the appellant tendering the mortgage amount, the Custodian refused to hand over vacant possession of the house to the appellant. The appellant applied to the Competent Officer under the. The Officer determined the mortgage debt due from the appellant and the appellant claimed vacant possession against tender of payment by him of the amount. The Officer rejected the claim and ordered the sale of the property under s.10(b)(ii) of the Separation Act, for satisfaction of the mortgage debt. Thereafter, the appellant paid the entire mortgage debt and the Competent Officer accepted the amount. On the question whether the appellant was entitled to vacant possession and have the order of sale set aside, HELD:(1) Section 4 of the gives to that Act an overriding effect in relation to any other law for the time being in force, and hence the law under the Transfer of Property set, is not applicable. Though s.12 of the Act empowers the Custodian to cancel an allotment or a tenancy, created by him, under r.14(2) of the Administration of Evacuee Property (Central) Rules, 1950, the Custodian can evict a person only on a ground justifying eviction of a tenant under a law relating to rent control or for any violation of the conditions of the lease or allotment. The Custodian could not, therefore, give vacant possession of the property to the appellant on his tender of payment of the mortgage amount. [855 H; 856 A B, D F] (2) The, was passed on account of the difficulty of administering evacuee properties in which there were both evacuee and non evacuee interests and to resolve the hardship felt by non evacuees, who by reason of such properties being in the possession of the Possession were unable to obtain satisfaction of their claims in view of the prohibitive provisions of that Act. But there is no provisions by which the Custodian is made subject to the power or control of the Competent Officer or which enables the Competent Officer 852 to pass an order which would curtail or otherwise affect the powers of the Custodian. Though under s.10(b)(i) of the Separation Act, the Competent Officer can pay to the Custodian the mortgage debt and redeem the mortgaged property, his power is subject to the rules made under that Act. [856 F G; 858 B C, G H] (3) Reading the relevant provisions namely, section 12 of the and r. 14 of the Rules made thereunder, and section 10 of the Separation Act and r. 11B of the rules made thereunder, together, the position is : (i) that though the Competent ' Officer must accept the mortgage amount when tendered by a mortgagor and the mortgage debt is thereupon satisfied, he cannot exercise the power to redeem the mortgaged property and order the Custodian to deliver up its vacant possession to the mortgagor in the absence of any agreement between the mortgagor and the Custodian; (ii) that the Competent Officer can order sale only for satisfaction of the mortgage debt and for distribution of the sale proceeds between the mortgagor and mortgagee. Since in the present case, the mortgage amount had been paid by the appellant and accepted by the Competent officer, the order directing sale is unten able and should be set aside; and (iii) that in exercising his jurisdiction under section 10, the Competent Officer cannot direct the Custodian to cancel or vary the terms of the leases or allotments made or granted by him. Therefore the Competent Officer can direct only symbolical possession of the mortgaged,property to be given to the appellant, however, harsh and unfair it may apparently be. [860 D G; 861 B, E H; 862 A C] The All India Film Corporation vs Raja Gyan Nath, referred to.
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What is the summary of this judgment?
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Upon the mortgagee being declared an evacuee and his interest as such mortgagee in the premises in question evacuee property, his interest in the mortgaged property vested under section 8 of the Administration Act in the Custodian from the date of the notice issued under section 7 of the Act. Under section 8 (4) any person in possession of the mortgaged property would be deemed thenceforth to be holding the property on behalf of the Custodian and would be bound on demand by him to surrender possession to him. The Act having under section 4 an overriding effect on any other law for the time being in force or any instrument having effect by virtue of any such Act, the Custodian, under the powers conferred on him by, section 10, could take all such measures he might consider necessary, 856 for securing, administering, preserving and managing any evacuee property including transferring "in any manner whatsoever" the evacuee property "notwithstanding to the contrary contained in any law or agreement relating thereto". Under s.12, the Custodian is empowered, notwithstanding anything contained,in any other law for the time being in force, to cancel any allotment, terminate any lease or amend the terms of such lease or agreement under which any evacuee property is held or occupied by a person whether such allotment, lease or agreement was granted or entered into before or after the commencement of the Act. Under sub section 3, he is authorised to eject such person and take possession, if such person fails to surrender possession on demand made by him in the manner provided by section 9 i.e., by even using such force as would be necessary for taking possession. It is conceded by the respondents that under these powers the Custodian had taken over posses sion of the mortgaged property and the property has since then been in possession of persons who were either allotted portions of it or, who were inducted therein as tenants by the Custodian.
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The appellant executed a usufructuary mortgage of his house and continued to reside in it as a tenant under a lease obtained from the mortgagee. In 1949, the mortgagee left for Pakistan. He was declared an evacuee and his mortgagee interest in the mortgaged property vested in the Custodian under section 8 of the. Under section 12, the Custodian evicted the appellant and allotted it to others as tenants. In spite of demands by the appellant and the appellant tendering the mortgage amount, the Custodian refused to hand over vacant possession of the house to the appellant. The appellant applied to the Competent Officer under the. The Officer determined the mortgage debt due from the appellant and the appellant claimed vacant possession against tender of payment by him of the amount. The Officer rejected the claim and ordered the sale of the property under s.10(b)(ii) of the Separation Act, for satisfaction of the mortgage debt. Thereafter, the appellant paid the entire mortgage debt and the Competent Officer accepted the amount. On the question whether the appellant was entitled to vacant possession and have the order of sale set aside, HELD:(1) Section 4 of the gives to that Act an overriding effect in relation to any other law for the time being in force, and hence the law under the Transfer of Property set, is not applicable. Though s.12 of the Act empowers the Custodian to cancel an allotment or a tenancy, created by him, under r.14(2) of the Administration of Evacuee Property (Central) Rules, 1950, the Custodian can evict a person only on a ground justifying eviction of a tenant under a law relating to rent control or for any violation of the conditions of the lease or allotment. The Custodian could not, therefore, give vacant possession of the property to the appellant on his tender of payment of the mortgage amount. [855 H; 856 A B, D F] (2) The, was passed on account of the difficulty of administering evacuee properties in which there were both evacuee and non evacuee interests and to resolve the hardship felt by non evacuees, who by reason of such properties being in the possession of the Possession were unable to obtain satisfaction of their claims in view of the prohibitive provisions of that Act. But there is no provisions by which the Custodian is made subject to the power or control of the Competent Officer or which enables the Competent Officer 852 to pass an order which would curtail or otherwise affect the powers of the Custodian. Though under s.10(b)(i) of the Separation Act, the Competent Officer can pay to the Custodian the mortgage debt and redeem the mortgaged property, his power is subject to the rules made under that Act. [856 F G; 858 B C, G H] (3) Reading the relevant provisions namely, section 12 of the and r. 14 of the Rules made thereunder, and section 10 of the Separation Act and r. 11B of the rules made thereunder, together, the position is : (i) that though the Competent ' Officer must accept the mortgage amount when tendered by a mortgagor and the mortgage debt is thereupon satisfied, he cannot exercise the power to redeem the mortgaged property and order the Custodian to deliver up its vacant possession to the mortgagor in the absence of any agreement between the mortgagor and the Custodian; (ii) that the Competent Officer can order sale only for satisfaction of the mortgage debt and for distribution of the sale proceeds between the mortgagor and mortgagee. Since in the present case, the mortgage amount had been paid by the appellant and accepted by the Competent officer, the order directing sale is unten able and should be set aside; and (iii) that in exercising his jurisdiction under section 10, the Competent Officer cannot direct the Custodian to cancel or vary the terms of the leases or allotments made or granted by him. Therefore the Competent Officer can direct only symbolical possession of the mortgaged,property to be given to the appellant, however, harsh and unfair it may apparently be. [860 D G; 861 B, E H; 862 A C] The All India Film Corporation vs Raja Gyan Nath, referred to.
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What is the summary of this judgment?
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It is also conceded that the Custodian has refused, notwithstanding demands made by the appellant, to evict these persons from the property and hand over vacant possession to the appellant even on the appellant tendering the mortgage amount. This was presumably done by reason of the fact that though section 12 empowers him ' to cancel an allotment or a tenancy made or created by him, r. 14(2) of the Administration of Evacuee Property (Central) Rules, 1950 lays down that in the case of a lease or an allotment granted by the Custodian he may evict a person on a ground justifying eviction of a tenant under a law relating to the Rent Control or for any violation of the conditions of the lease or allotment. From the provisions dealing with the vesting of the evacuee property, the powers of the Custodian, appeals and revisions from his order and the overriding nature of the provisions of the Act it is clear that the Administration Act is a self contained code. In 1951, Parliament passed the, LXIV of 1951 (hereinafter referred to as the Separation Act). The statement of objects and reasons shows that it was passed on account of the difficulty of administering evacuee properties in which there were both evacuee and non evacuee interests and to solve the hardship felt by non evacuees, who by reason of such properties being in possession of the Custodian, were unable to obtain satisfaction of their claims in view of the prohibitive provisions of the Administration Act and in particular its section 17. The Act, as its long title declares, was passed for the separation of interests of evacuees from those of non evacuee persons in composite properties.
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The appellant executed a usufructuary mortgage of his house and continued to reside in it as a tenant under a lease obtained from the mortgagee. In 1949, the mortgagee left for Pakistan. He was declared an evacuee and his mortgagee interest in the mortgaged property vested in the Custodian under section 8 of the. Under section 12, the Custodian evicted the appellant and allotted it to others as tenants. In spite of demands by the appellant and the appellant tendering the mortgage amount, the Custodian refused to hand over vacant possession of the house to the appellant. The appellant applied to the Competent Officer under the. The Officer determined the mortgage debt due from the appellant and the appellant claimed vacant possession against tender of payment by him of the amount. The Officer rejected the claim and ordered the sale of the property under s.10(b)(ii) of the Separation Act, for satisfaction of the mortgage debt. Thereafter, the appellant paid the entire mortgage debt and the Competent Officer accepted the amount. On the question whether the appellant was entitled to vacant possession and have the order of sale set aside, HELD:(1) Section 4 of the gives to that Act an overriding effect in relation to any other law for the time being in force, and hence the law under the Transfer of Property set, is not applicable. Though s.12 of the Act empowers the Custodian to cancel an allotment or a tenancy, created by him, under r.14(2) of the Administration of Evacuee Property (Central) Rules, 1950, the Custodian can evict a person only on a ground justifying eviction of a tenant under a law relating to rent control or for any violation of the conditions of the lease or allotment. The Custodian could not, therefore, give vacant possession of the property to the appellant on his tender of payment of the mortgage amount. [855 H; 856 A B, D F] (2) The, was passed on account of the difficulty of administering evacuee properties in which there were both evacuee and non evacuee interests and to resolve the hardship felt by non evacuees, who by reason of such properties being in the possession of the Possession were unable to obtain satisfaction of their claims in view of the prohibitive provisions of that Act. But there is no provisions by which the Custodian is made subject to the power or control of the Competent Officer or which enables the Competent Officer 852 to pass an order which would curtail or otherwise affect the powers of the Custodian. Though under s.10(b)(i) of the Separation Act, the Competent Officer can pay to the Custodian the mortgage debt and redeem the mortgaged property, his power is subject to the rules made under that Act. [856 F G; 858 B C, G H] (3) Reading the relevant provisions namely, section 12 of the and r. 14 of the Rules made thereunder, and section 10 of the Separation Act and r. 11B of the rules made thereunder, together, the position is : (i) that though the Competent ' Officer must accept the mortgage amount when tendered by a mortgagor and the mortgage debt is thereupon satisfied, he cannot exercise the power to redeem the mortgaged property and order the Custodian to deliver up its vacant possession to the mortgagor in the absence of any agreement between the mortgagor and the Custodian; (ii) that the Competent Officer can order sale only for satisfaction of the mortgage debt and for distribution of the sale proceeds between the mortgagor and mortgagee. Since in the present case, the mortgage amount had been paid by the appellant and accepted by the Competent officer, the order directing sale is unten able and should be set aside; and (iii) that in exercising his jurisdiction under section 10, the Competent Officer cannot direct the Custodian to cancel or vary the terms of the leases or allotments made or granted by him. Therefore the Competent Officer can direct only symbolical possession of the mortgaged,property to be given to the appellant, however, harsh and unfair it may apparently be. [860 D G; 861 B, E H; 862 A C] The All India Film Corporation vs Raja Gyan Nath, referred to.
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What is the summary of this judgment?
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Sections 4 and 5 of the Act provide for the appointment of Competent Officers and their jurisdiction. Sec. 7 provides for submission of claims by a person claiming interest in 857 a composite property. (e) of sub section 2 requires that where a claim is made by a mortgagor the total amount due on the mortgage debt and the particulars necessary to determine the same should be set out in such a claim. Sec. 8 provides for an inquiry to be made by the Competent Officer and provides that the order to be made by him shall contain, amongst other things, the amount due to the evacuee in a case where the claim is made by a mortgagor.
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The appellant executed a usufructuary mortgage of his house and continued to reside in it as a tenant under a lease obtained from the mortgagee. In 1949, the mortgagee left for Pakistan. He was declared an evacuee and his mortgagee interest in the mortgaged property vested in the Custodian under section 8 of the. Under section 12, the Custodian evicted the appellant and allotted it to others as tenants. In spite of demands by the appellant and the appellant tendering the mortgage amount, the Custodian refused to hand over vacant possession of the house to the appellant. The appellant applied to the Competent Officer under the. The Officer determined the mortgage debt due from the appellant and the appellant claimed vacant possession against tender of payment by him of the amount. The Officer rejected the claim and ordered the sale of the property under s.10(b)(ii) of the Separation Act, for satisfaction of the mortgage debt. Thereafter, the appellant paid the entire mortgage debt and the Competent Officer accepted the amount. On the question whether the appellant was entitled to vacant possession and have the order of sale set aside, HELD:(1) Section 4 of the gives to that Act an overriding effect in relation to any other law for the time being in force, and hence the law under the Transfer of Property set, is not applicable. Though s.12 of the Act empowers the Custodian to cancel an allotment or a tenancy, created by him, under r.14(2) of the Administration of Evacuee Property (Central) Rules, 1950, the Custodian can evict a person only on a ground justifying eviction of a tenant under a law relating to rent control or for any violation of the conditions of the lease or allotment. The Custodian could not, therefore, give vacant possession of the property to the appellant on his tender of payment of the mortgage amount. [855 H; 856 A B, D F] (2) The, was passed on account of the difficulty of administering evacuee properties in which there were both evacuee and non evacuee interests and to resolve the hardship felt by non evacuees, who by reason of such properties being in the possession of the Possession were unable to obtain satisfaction of their claims in view of the prohibitive provisions of that Act. But there is no provisions by which the Custodian is made subject to the power or control of the Competent Officer or which enables the Competent Officer 852 to pass an order which would curtail or otherwise affect the powers of the Custodian. Though under s.10(b)(i) of the Separation Act, the Competent Officer can pay to the Custodian the mortgage debt and redeem the mortgaged property, his power is subject to the rules made under that Act. [856 F G; 858 B C, G H] (3) Reading the relevant provisions namely, section 12 of the and r. 14 of the Rules made thereunder, and section 10 of the Separation Act and r. 11B of the rules made thereunder, together, the position is : (i) that though the Competent ' Officer must accept the mortgage amount when tendered by a mortgagor and the mortgage debt is thereupon satisfied, he cannot exercise the power to redeem the mortgaged property and order the Custodian to deliver up its vacant possession to the mortgagor in the absence of any agreement between the mortgagor and the Custodian; (ii) that the Competent Officer can order sale only for satisfaction of the mortgage debt and for distribution of the sale proceeds between the mortgagor and mortgagee. Since in the present case, the mortgage amount had been paid by the appellant and accepted by the Competent officer, the order directing sale is unten able and should be set aside; and (iii) that in exercising his jurisdiction under section 10, the Competent Officer cannot direct the Custodian to cancel or vary the terms of the leases or allotments made or granted by him. Therefore the Competent Officer can direct only symbolical possession of the mortgaged,property to be given to the appellant, however, harsh and unfair it may apparently be. [860 D G; 861 B, E H; 862 A C] The All India Film Corporation vs Raja Gyan Nath, referred to.
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What is the summary of this judgment?
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Sub section 2 of section 8, however, provides that where the Custodian has determined that the property in question or any interest therein is evacuee property, such determination is binding on the competent officer. The proviso to that sub section lays down that nothing contained in sub section 2 shall debar the competent officer from determining the mortgage debt in respect of, such property or any interest therein or from separating the interest of the evacuee from that of the claimant under section provides that notwithstanding anything to the contrary in any law or contract or any decree or order of the civil court or other authority, the competent officer may, subject to any rules that may be made in this behalf, take all such measures as he may consider necessary for the purpose of separating the interest of the evacuee from those of the claimant in any composite property and in particular may "(b) in the case of any claim of a mortgagor or a mortgagee, (i) pay to the Custodian or the claimant the amount payable under the mortgage debt and redeem the mortgaged property; or (ii) sell the mortgaged property for satisfaction of the mortgage debt and distribute the sale proceeds thereof; or (iii) partition the property between the mortgagor and the mortgagee having regard to the share to which the mortgagee would be entitled in lieu of his claim;" Cl. (c) empowers him to adopt a combination of all or some of these measures. The proviso to the section provides that in any case where the claimant is a mortgagor and tenders the amount due, the competent officer shall accept the same in full satisfaction of the mortgage debt. The competent officer, by virtue of the proviso, is thus under an obligation, where the claimant is a mortgagor and tenders the mortgage amount due, to accept such amount in full satisfaction of the mortgage debt and thereupon interest on the mortgage amount would cease to run. Under cl.
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The appellant executed a usufructuary mortgage of his house and continued to reside in it as a tenant under a lease obtained from the mortgagee. In 1949, the mortgagee left for Pakistan. He was declared an evacuee and his mortgagee interest in the mortgaged property vested in the Custodian under section 8 of the. Under section 12, the Custodian evicted the appellant and allotted it to others as tenants. In spite of demands by the appellant and the appellant tendering the mortgage amount, the Custodian refused to hand over vacant possession of the house to the appellant. The appellant applied to the Competent Officer under the. The Officer determined the mortgage debt due from the appellant and the appellant claimed vacant possession against tender of payment by him of the amount. The Officer rejected the claim and ordered the sale of the property under s.10(b)(ii) of the Separation Act, for satisfaction of the mortgage debt. Thereafter, the appellant paid the entire mortgage debt and the Competent Officer accepted the amount. On the question whether the appellant was entitled to vacant possession and have the order of sale set aside, HELD:(1) Section 4 of the gives to that Act an overriding effect in relation to any other law for the time being in force, and hence the law under the Transfer of Property set, is not applicable. Though s.12 of the Act empowers the Custodian to cancel an allotment or a tenancy, created by him, under r.14(2) of the Administration of Evacuee Property (Central) Rules, 1950, the Custodian can evict a person only on a ground justifying eviction of a tenant under a law relating to rent control or for any violation of the conditions of the lease or allotment. The Custodian could not, therefore, give vacant possession of the property to the appellant on his tender of payment of the mortgage amount. [855 H; 856 A B, D F] (2) The, was passed on account of the difficulty of administering evacuee properties in which there were both evacuee and non evacuee interests and to resolve the hardship felt by non evacuees, who by reason of such properties being in the possession of the Possession were unable to obtain satisfaction of their claims in view of the prohibitive provisions of that Act. But there is no provisions by which the Custodian is made subject to the power or control of the Competent Officer or which enables the Competent Officer 852 to pass an order which would curtail or otherwise affect the powers of the Custodian. Though under s.10(b)(i) of the Separation Act, the Competent Officer can pay to the Custodian the mortgage debt and redeem the mortgaged property, his power is subject to the rules made under that Act. [856 F G; 858 B C, G H] (3) Reading the relevant provisions namely, section 12 of the and r. 14 of the Rules made thereunder, and section 10 of the Separation Act and r. 11B of the rules made thereunder, together, the position is : (i) that though the Competent ' Officer must accept the mortgage amount when tendered by a mortgagor and the mortgage debt is thereupon satisfied, he cannot exercise the power to redeem the mortgaged property and order the Custodian to deliver up its vacant possession to the mortgagor in the absence of any agreement between the mortgagor and the Custodian; (ii) that the Competent Officer can order sale only for satisfaction of the mortgage debt and for distribution of the sale proceeds between the mortgagor and mortgagee. Since in the present case, the mortgage amount had been paid by the appellant and accepted by the Competent officer, the order directing sale is unten able and should be set aside; and (iii) that in exercising his jurisdiction under section 10, the Competent Officer cannot direct the Custodian to cancel or vary the terms of the leases or allotments made or granted by him. Therefore the Competent Officer can direct only symbolical possession of the mortgaged,property to be given to the appellant, however, harsh and unfair it may apparently be. [860 D G; 861 B, E H; 862 A C] The All India Film Corporation vs Raja Gyan Nath, referred to.
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What is the summary of this judgment?
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(b), he is also empowered in such a case to redeem the mortgaged property. The argument was that where the mortgage amount is tendered by the mortgagor and the competent officer accepts it in satis 858 faction of the debt due under the mortgage, the mortgage debt is satisfied, interest thereon ceases to run and the mortgage is discharged. Consequently, there would be no question of the com, petent officer adopting any of the measures provided in sub cls. (ii) and (iii) of cl. (b) of the section, that is to say, there could be no occasion for him either to sell the property for satisfaction of the mortgage debt or to partition the property between the mortgagor and the mortgagee, as, on satisfaction of the mortgage debt the mortgage is discharged and the mortgagee 's interest in the mortgaged property ceases or comes to an end. The only measure which in that event he can adopt would be that, under cl.
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The appellant executed a usufructuary mortgage of his house and continued to reside in it as a tenant under a lease obtained from the mortgagee. In 1949, the mortgagee left for Pakistan. He was declared an evacuee and his mortgagee interest in the mortgaged property vested in the Custodian under section 8 of the. Under section 12, the Custodian evicted the appellant and allotted it to others as tenants. In spite of demands by the appellant and the appellant tendering the mortgage amount, the Custodian refused to hand over vacant possession of the house to the appellant. The appellant applied to the Competent Officer under the. The Officer determined the mortgage debt due from the appellant and the appellant claimed vacant possession against tender of payment by him of the amount. The Officer rejected the claim and ordered the sale of the property under s.10(b)(ii) of the Separation Act, for satisfaction of the mortgage debt. Thereafter, the appellant paid the entire mortgage debt and the Competent Officer accepted the amount. On the question whether the appellant was entitled to vacant possession and have the order of sale set aside, HELD:(1) Section 4 of the gives to that Act an overriding effect in relation to any other law for the time being in force, and hence the law under the Transfer of Property set, is not applicable. Though s.12 of the Act empowers the Custodian to cancel an allotment or a tenancy, created by him, under r.14(2) of the Administration of Evacuee Property (Central) Rules, 1950, the Custodian can evict a person only on a ground justifying eviction of a tenant under a law relating to rent control or for any violation of the conditions of the lease or allotment. The Custodian could not, therefore, give vacant possession of the property to the appellant on his tender of payment of the mortgage amount. [855 H; 856 A B, D F] (2) The, was passed on account of the difficulty of administering evacuee properties in which there were both evacuee and non evacuee interests and to resolve the hardship felt by non evacuees, who by reason of such properties being in the possession of the Possession were unable to obtain satisfaction of their claims in view of the prohibitive provisions of that Act. But there is no provisions by which the Custodian is made subject to the power or control of the Competent Officer or which enables the Competent Officer 852 to pass an order which would curtail or otherwise affect the powers of the Custodian. Though under s.10(b)(i) of the Separation Act, the Competent Officer can pay to the Custodian the mortgage debt and redeem the mortgaged property, his power is subject to the rules made under that Act. [856 F G; 858 B C, G H] (3) Reading the relevant provisions namely, section 12 of the and r. 14 of the Rules made thereunder, and section 10 of the Separation Act and r. 11B of the rules made thereunder, together, the position is : (i) that though the Competent ' Officer must accept the mortgage amount when tendered by a mortgagor and the mortgage debt is thereupon satisfied, he cannot exercise the power to redeem the mortgaged property and order the Custodian to deliver up its vacant possession to the mortgagor in the absence of any agreement between the mortgagor and the Custodian; (ii) that the Competent Officer can order sale only for satisfaction of the mortgage debt and for distribution of the sale proceeds between the mortgagor and mortgagee. Since in the present case, the mortgage amount had been paid by the appellant and accepted by the Competent officer, the order directing sale is unten able and should be set aside; and (iii) that in exercising his jurisdiction under section 10, the Competent Officer cannot direct the Custodian to cancel or vary the terms of the leases or allotments made or granted by him. Therefore the Competent Officer can direct only symbolical possession of the mortgaged,property to be given to the appellant, however, harsh and unfair it may apparently be. [860 D G; 861 B, E H; 862 A C] The All India Film Corporation vs Raja Gyan Nath, referred to.
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What is the summary of this judgment?
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(b) (i), i.e, to pay to the Custodian the mortgage debt and redeem the mortgaged property. It was said that that being the position under section 10, the appellant was entitled to tender the mort. gage amount in satisfaction of the debt due under the mortgage on condition that the mortgage should be redeemed and possession of the property given to him. The Competent Officer in the proceedings before him under section 7 was bound to accept the mortgage amount and redeem the mortgaged property. The argument would be valid if section 10 had been untrammelled and the powers given therein to the Competent Officer were not made subject to the rules which may be made under the Act. The Legislature, it seems had a purpose in making the powers contained in section 10 and their exercise by the Competent Officer subject to the rules.
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The appellant executed a usufructuary mortgage of his house and continued to reside in it as a tenant under a lease obtained from the mortgagee. In 1949, the mortgagee left for Pakistan. He was declared an evacuee and his mortgagee interest in the mortgaged property vested in the Custodian under section 8 of the. Under section 12, the Custodian evicted the appellant and allotted it to others as tenants. In spite of demands by the appellant and the appellant tendering the mortgage amount, the Custodian refused to hand over vacant possession of the house to the appellant. The appellant applied to the Competent Officer under the. The Officer determined the mortgage debt due from the appellant and the appellant claimed vacant possession against tender of payment by him of the amount. The Officer rejected the claim and ordered the sale of the property under s.10(b)(ii) of the Separation Act, for satisfaction of the mortgage debt. Thereafter, the appellant paid the entire mortgage debt and the Competent Officer accepted the amount. On the question whether the appellant was entitled to vacant possession and have the order of sale set aside, HELD:(1) Section 4 of the gives to that Act an overriding effect in relation to any other law for the time being in force, and hence the law under the Transfer of Property set, is not applicable. Though s.12 of the Act empowers the Custodian to cancel an allotment or a tenancy, created by him, under r.14(2) of the Administration of Evacuee Property (Central) Rules, 1950, the Custodian can evict a person only on a ground justifying eviction of a tenant under a law relating to rent control or for any violation of the conditions of the lease or allotment. The Custodian could not, therefore, give vacant possession of the property to the appellant on his tender of payment of the mortgage amount. [855 H; 856 A B, D F] (2) The, was passed on account of the difficulty of administering evacuee properties in which there were both evacuee and non evacuee interests and to resolve the hardship felt by non evacuees, who by reason of such properties being in the possession of the Possession were unable to obtain satisfaction of their claims in view of the prohibitive provisions of that Act. But there is no provisions by which the Custodian is made subject to the power or control of the Competent Officer or which enables the Competent Officer 852 to pass an order which would curtail or otherwise affect the powers of the Custodian. Though under s.10(b)(i) of the Separation Act, the Competent Officer can pay to the Custodian the mortgage debt and redeem the mortgaged property, his power is subject to the rules made under that Act. [856 F G; 858 B C, G H] (3) Reading the relevant provisions namely, section 12 of the and r. 14 of the Rules made thereunder, and section 10 of the Separation Act and r. 11B of the rules made thereunder, together, the position is : (i) that though the Competent ' Officer must accept the mortgage amount when tendered by a mortgagor and the mortgage debt is thereupon satisfied, he cannot exercise the power to redeem the mortgaged property and order the Custodian to deliver up its vacant possession to the mortgagor in the absence of any agreement between the mortgagor and the Custodian; (ii) that the Competent Officer can order sale only for satisfaction of the mortgage debt and for distribution of the sale proceeds between the mortgagor and mortgagee. Since in the present case, the mortgage amount had been paid by the appellant and accepted by the Competent officer, the order directing sale is unten able and should be set aside; and (iii) that in exercising his jurisdiction under section 10, the Competent Officer cannot direct the Custodian to cancel or vary the terms of the leases or allotments made or granted by him. Therefore the Competent Officer can direct only symbolical possession of the mortgaged,property to be given to the appellant, however, harsh and unfair it may apparently be. [860 D G; 861 B, E H; 862 A C] The All India Film Corporation vs Raja Gyan Nath, referred to.
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What is the summary of this judgment?
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It must have been aware of (i) that the Administration Act is, as aforesaid, a self contained code, (ii) that the Custodian appointed thereunder is not an authority subject to the power or control of the Competent Officer, and (iii) that the Administration Act, by sections 10 and 12 thereof, confers several powers on the Custodian including the power to transfer the property vested in him. He can therefore, create a lease or grant allotment and thus induct on the property tenants or allottees. Under section 12 of that Act the Custodian has been empowered to cancel or terminate a lease or allotment. But no such power is conferred on the Competent Officer either under section 10 or under any other section of the Separation Act, nor have the powers of the Custodian been made subject to the powers of the Competent Officer or his orders. On the other hand, it would appear from a reading of the provisions of the Separation Act that the object of enacting it was to enable non evacuees to have their interests separated in composite pro perties and to grant power to the competent officer to achieve that object. But we do not find anywhere in either of the two Acts any provision by which the Custodian is made subject to the, power or control of the Competent Officer or enabling the Competent Officer to pass any order which would curtail or otherwise affect the powers of the Custodian.
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The appellant executed a usufructuary mortgage of his house and continued to reside in it as a tenant under a lease obtained from the mortgagee. In 1949, the mortgagee left for Pakistan. He was declared an evacuee and his mortgagee interest in the mortgaged property vested in the Custodian under section 8 of the. Under section 12, the Custodian evicted the appellant and allotted it to others as tenants. In spite of demands by the appellant and the appellant tendering the mortgage amount, the Custodian refused to hand over vacant possession of the house to the appellant. The appellant applied to the Competent Officer under the. The Officer determined the mortgage debt due from the appellant and the appellant claimed vacant possession against tender of payment by him of the amount. The Officer rejected the claim and ordered the sale of the property under s.10(b)(ii) of the Separation Act, for satisfaction of the mortgage debt. Thereafter, the appellant paid the entire mortgage debt and the Competent Officer accepted the amount. On the question whether the appellant was entitled to vacant possession and have the order of sale set aside, HELD:(1) Section 4 of the gives to that Act an overriding effect in relation to any other law for the time being in force, and hence the law under the Transfer of Property set, is not applicable. Though s.12 of the Act empowers the Custodian to cancel an allotment or a tenancy, created by him, under r.14(2) of the Administration of Evacuee Property (Central) Rules, 1950, the Custodian can evict a person only on a ground justifying eviction of a tenant under a law relating to rent control or for any violation of the conditions of the lease or allotment. The Custodian could not, therefore, give vacant possession of the property to the appellant on his tender of payment of the mortgage amount. [855 H; 856 A B, D F] (2) The, was passed on account of the difficulty of administering evacuee properties in which there were both evacuee and non evacuee interests and to resolve the hardship felt by non evacuees, who by reason of such properties being in the possession of the Possession were unable to obtain satisfaction of their claims in view of the prohibitive provisions of that Act. But there is no provisions by which the Custodian is made subject to the power or control of the Competent Officer or which enables the Competent Officer 852 to pass an order which would curtail or otherwise affect the powers of the Custodian. Though under s.10(b)(i) of the Separation Act, the Competent Officer can pay to the Custodian the mortgage debt and redeem the mortgaged property, his power is subject to the rules made under that Act. [856 F G; 858 B C, G H] (3) Reading the relevant provisions namely, section 12 of the and r. 14 of the Rules made thereunder, and section 10 of the Separation Act and r. 11B of the rules made thereunder, together, the position is : (i) that though the Competent ' Officer must accept the mortgage amount when tendered by a mortgagor and the mortgage debt is thereupon satisfied, he cannot exercise the power to redeem the mortgaged property and order the Custodian to deliver up its vacant possession to the mortgagor in the absence of any agreement between the mortgagor and the Custodian; (ii) that the Competent Officer can order sale only for satisfaction of the mortgage debt and for distribution of the sale proceeds between the mortgagor and mortgagee. Since in the present case, the mortgage amount had been paid by the appellant and accepted by the Competent officer, the order directing sale is unten able and should be set aside; and (iii) that in exercising his jurisdiction under section 10, the Competent Officer cannot direct the Custodian to cancel or vary the terms of the leases or allotments made or granted by him. Therefore the Competent Officer can direct only symbolical possession of the mortgaged,property to be given to the appellant, however, harsh and unfair it may apparently be. [860 D G; 861 B, E H; 862 A C] The All India Film Corporation vs Raja Gyan Nath, referred to.
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What is the summary of this judgment?
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It would seem that the two Acts have different objects and schemes and the authorities established under them are independent of each other. The powers conferred 859 on the Competent Officer had, therefore, to be so provided that they could be exercised in harmony and consistently with the pro ' visions of the Administration Act and the duties and functions of the Custodian thereunder. It was for that reason that the Legislature laid down in section 10 of the Separation Act that the powers conferred Thereunder on the Competent Officer were to be subject to the rules made under that Act. Had it not been so, there would have resulted a conflict in the exercise of the respective powers given to the Custodian and the Competent Officer by the two. Acts, and consequently, are in the smooth working out of the provisions of the two Acts. Rule II B of the Rules made under the Separation Act pro vides that a Competent Officer "having regard to the provisions of the proviso to section 10 of the Act" shall, for the purpose of separating the evacuee interest from other interests in a composite property, adopt any of the measures in the order of preference set out therein.
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The appellant executed a usufructuary mortgage of his house and continued to reside in it as a tenant under a lease obtained from the mortgagee. In 1949, the mortgagee left for Pakistan. He was declared an evacuee and his mortgagee interest in the mortgaged property vested in the Custodian under section 8 of the. Under section 12, the Custodian evicted the appellant and allotted it to others as tenants. In spite of demands by the appellant and the appellant tendering the mortgage amount, the Custodian refused to hand over vacant possession of the house to the appellant. The appellant applied to the Competent Officer under the. The Officer determined the mortgage debt due from the appellant and the appellant claimed vacant possession against tender of payment by him of the amount. The Officer rejected the claim and ordered the sale of the property under s.10(b)(ii) of the Separation Act, for satisfaction of the mortgage debt. Thereafter, the appellant paid the entire mortgage debt and the Competent Officer accepted the amount. On the question whether the appellant was entitled to vacant possession and have the order of sale set aside, HELD:(1) Section 4 of the gives to that Act an overriding effect in relation to any other law for the time being in force, and hence the law under the Transfer of Property set, is not applicable. Though s.12 of the Act empowers the Custodian to cancel an allotment or a tenancy, created by him, under r.14(2) of the Administration of Evacuee Property (Central) Rules, 1950, the Custodian can evict a person only on a ground justifying eviction of a tenant under a law relating to rent control or for any violation of the conditions of the lease or allotment. The Custodian could not, therefore, give vacant possession of the property to the appellant on his tender of payment of the mortgage amount. [855 H; 856 A B, D F] (2) The, was passed on account of the difficulty of administering evacuee properties in which there were both evacuee and non evacuee interests and to resolve the hardship felt by non evacuees, who by reason of such properties being in the possession of the Possession were unable to obtain satisfaction of their claims in view of the prohibitive provisions of that Act. But there is no provisions by which the Custodian is made subject to the power or control of the Competent Officer or which enables the Competent Officer 852 to pass an order which would curtail or otherwise affect the powers of the Custodian. Though under s.10(b)(i) of the Separation Act, the Competent Officer can pay to the Custodian the mortgage debt and redeem the mortgaged property, his power is subject to the rules made under that Act. [856 F G; 858 B C, G H] (3) Reading the relevant provisions namely, section 12 of the and r. 14 of the Rules made thereunder, and section 10 of the Separation Act and r. 11B of the rules made thereunder, together, the position is : (i) that though the Competent ' Officer must accept the mortgage amount when tendered by a mortgagor and the mortgage debt is thereupon satisfied, he cannot exercise the power to redeem the mortgaged property and order the Custodian to deliver up its vacant possession to the mortgagor in the absence of any agreement between the mortgagor and the Custodian; (ii) that the Competent Officer can order sale only for satisfaction of the mortgage debt and for distribution of the sale proceeds between the mortgagor and mortgagee. Since in the present case, the mortgage amount had been paid by the appellant and accepted by the Competent officer, the order directing sale is unten able and should be set aside; and (iii) that in exercising his jurisdiction under section 10, the Competent Officer cannot direct the Custodian to cancel or vary the terms of the leases or allotments made or granted by him. Therefore the Competent Officer can direct only symbolical possession of the mortgaged,property to be given to the appellant, however, harsh and unfair it may apparently be. [860 D G; 861 B, E H; 862 A C] The All India Film Corporation vs Raja Gyan Nath, referred to.
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What is the summary of this judgment?
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(b) of that rule provides that in the case of a claim by a mortgagor or a mortgagee (1) where both the Custodian and claimant agree, the Competent Officer can exercise the powers. conferred on him under sub cl. (i) or sub cl. (iii) of cl. (b) of section 10 of the Act and (ii) where there is no such agreement, he can sell the mortgaged property for satisfaction of the mortgage debt and distribute the sale proceeds thereof. The effect of this rule read in conjunction with section 10 of the Act, however harsh it may apparently seem to be, is that though the Competent Officer has to accept the mortgage amount tendered by a mortgagor and thus discharge the mortgage debt and interest thereupon ceases to run on the principal amount and though he can adopt any one of the measures set out in section 10, including redemption of the mortgage, he cannot order such redemption and direct the Custodian to deliver vacant possession of the property in the absence of an agreement between the Custodian and the mortgagor claimant.
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The appellant executed a usufructuary mortgage of his house and continued to reside in it as a tenant under a lease obtained from the mortgagee. In 1949, the mortgagee left for Pakistan. He was declared an evacuee and his mortgagee interest in the mortgaged property vested in the Custodian under section 8 of the. Under section 12, the Custodian evicted the appellant and allotted it to others as tenants. In spite of demands by the appellant and the appellant tendering the mortgage amount, the Custodian refused to hand over vacant possession of the house to the appellant. The appellant applied to the Competent Officer under the. The Officer determined the mortgage debt due from the appellant and the appellant claimed vacant possession against tender of payment by him of the amount. The Officer rejected the claim and ordered the sale of the property under s.10(b)(ii) of the Separation Act, for satisfaction of the mortgage debt. Thereafter, the appellant paid the entire mortgage debt and the Competent Officer accepted the amount. On the question whether the appellant was entitled to vacant possession and have the order of sale set aside, HELD:(1) Section 4 of the gives to that Act an overriding effect in relation to any other law for the time being in force, and hence the law under the Transfer of Property set, is not applicable. Though s.12 of the Act empowers the Custodian to cancel an allotment or a tenancy, created by him, under r.14(2) of the Administration of Evacuee Property (Central) Rules, 1950, the Custodian can evict a person only on a ground justifying eviction of a tenant under a law relating to rent control or for any violation of the conditions of the lease or allotment. The Custodian could not, therefore, give vacant possession of the property to the appellant on his tender of payment of the mortgage amount. [855 H; 856 A B, D F] (2) The, was passed on account of the difficulty of administering evacuee properties in which there were both evacuee and non evacuee interests and to resolve the hardship felt by non evacuees, who by reason of such properties being in the possession of the Possession were unable to obtain satisfaction of their claims in view of the prohibitive provisions of that Act. But there is no provisions by which the Custodian is made subject to the power or control of the Competent Officer or which enables the Competent Officer 852 to pass an order which would curtail or otherwise affect the powers of the Custodian. Though under s.10(b)(i) of the Separation Act, the Competent Officer can pay to the Custodian the mortgage debt and redeem the mortgaged property, his power is subject to the rules made under that Act. [856 F G; 858 B C, G H] (3) Reading the relevant provisions namely, section 12 of the and r. 14 of the Rules made thereunder, and section 10 of the Separation Act and r. 11B of the rules made thereunder, together, the position is : (i) that though the Competent ' Officer must accept the mortgage amount when tendered by a mortgagor and the mortgage debt is thereupon satisfied, he cannot exercise the power to redeem the mortgaged property and order the Custodian to deliver up its vacant possession to the mortgagor in the absence of any agreement between the mortgagor and the Custodian; (ii) that the Competent Officer can order sale only for satisfaction of the mortgage debt and for distribution of the sale proceeds between the mortgagor and mortgagee. Since in the present case, the mortgage amount had been paid by the appellant and accepted by the Competent officer, the order directing sale is unten able and should be set aside; and (iii) that in exercising his jurisdiction under section 10, the Competent Officer cannot direct the Custodian to cancel or vary the terms of the leases or allotments made or granted by him. Therefore the Competent Officer can direct only symbolical possession of the mortgaged,property to be given to the appellant, however, harsh and unfair it may apparently be. [860 D G; 861 B, E H; 862 A C] The All India Film Corporation vs Raja Gyan Nath, referred to.
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What is the summary of this judgment?
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It follows that in the absence of such agreement the mortgagor claimant cannot demand from the Competent Officer that the latter should accept the mortgage amount tendered by him and direct simultaneous delivery of possession of the mortgaged property. The power to redeem the mortgaged property being subject to rule II B (b), the only thing that the Competent Officer can at the most do is to order symbolical possession, but he cannot direct the Custodian to give vacant possession. The reason is clear, for, such an order would in effect be an order directing the Custodian to cancel the leases or allotments granted by him and eject the tenants or allottees from the property. Such an order would at once be in conflict with r. 14 of the Administration of Evacuee Property (Central) Rules, 1950. That rule provides that while, exercising his power under section 12 of that Act, namely, the power to cancel or vary the terms of a lease or allotment, the Custodian, 860 in the case of a lease or allotment granted by him, can evict a person only on any of the grounds justifying eviction of a tenant under any rent control law for the time being in force in the State concerned or for any violation of the conditions of the lease or the allotment. 4 of that rule further lays down that before cancelling or varying the terms of the lease or before evicting any less the Custodian must serve a show cause notice on such lessee and afford him a reasonable opportunity of being heard.
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The appellant executed a usufructuary mortgage of his house and continued to reside in it as a tenant under a lease obtained from the mortgagee. In 1949, the mortgagee left for Pakistan. He was declared an evacuee and his mortgagee interest in the mortgaged property vested in the Custodian under section 8 of the. Under section 12, the Custodian evicted the appellant and allotted it to others as tenants. In spite of demands by the appellant and the appellant tendering the mortgage amount, the Custodian refused to hand over vacant possession of the house to the appellant. The appellant applied to the Competent Officer under the. The Officer determined the mortgage debt due from the appellant and the appellant claimed vacant possession against tender of payment by him of the amount. The Officer rejected the claim and ordered the sale of the property under s.10(b)(ii) of the Separation Act, for satisfaction of the mortgage debt. Thereafter, the appellant paid the entire mortgage debt and the Competent Officer accepted the amount. On the question whether the appellant was entitled to vacant possession and have the order of sale set aside, HELD:(1) Section 4 of the gives to that Act an overriding effect in relation to any other law for the time being in force, and hence the law under the Transfer of Property set, is not applicable. Though s.12 of the Act empowers the Custodian to cancel an allotment or a tenancy, created by him, under r.14(2) of the Administration of Evacuee Property (Central) Rules, 1950, the Custodian can evict a person only on a ground justifying eviction of a tenant under a law relating to rent control or for any violation of the conditions of the lease or allotment. The Custodian could not, therefore, give vacant possession of the property to the appellant on his tender of payment of the mortgage amount. [855 H; 856 A B, D F] (2) The, was passed on account of the difficulty of administering evacuee properties in which there were both evacuee and non evacuee interests and to resolve the hardship felt by non evacuees, who by reason of such properties being in the possession of the Possession were unable to obtain satisfaction of their claims in view of the prohibitive provisions of that Act. But there is no provisions by which the Custodian is made subject to the power or control of the Competent Officer or which enables the Competent Officer 852 to pass an order which would curtail or otherwise affect the powers of the Custodian. Though under s.10(b)(i) of the Separation Act, the Competent Officer can pay to the Custodian the mortgage debt and redeem the mortgaged property, his power is subject to the rules made under that Act. [856 F G; 858 B C, G H] (3) Reading the relevant provisions namely, section 12 of the and r. 14 of the Rules made thereunder, and section 10 of the Separation Act and r. 11B of the rules made thereunder, together, the position is : (i) that though the Competent ' Officer must accept the mortgage amount when tendered by a mortgagor and the mortgage debt is thereupon satisfied, he cannot exercise the power to redeem the mortgaged property and order the Custodian to deliver up its vacant possession to the mortgagor in the absence of any agreement between the mortgagor and the Custodian; (ii) that the Competent Officer can order sale only for satisfaction of the mortgage debt and for distribution of the sale proceeds between the mortgagor and mortgagee. Since in the present case, the mortgage amount had been paid by the appellant and accepted by the Competent officer, the order directing sale is unten able and should be set aside; and (iii) that in exercising his jurisdiction under section 10, the Competent Officer cannot direct the Custodian to cancel or vary the terms of the leases or allotments made or granted by him. Therefore the Competent Officer can direct only symbolical possession of the mortgaged,property to be given to the appellant, however, harsh and unfair it may apparently be. [860 D G; 861 B, E H; 862 A C] The All India Film Corporation vs Raja Gyan Nath, referred to.
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What is the summary of this judgment?
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If the Custodian is satisfied on hearing the concerned lessee that he is not liable to eviction under a rent control Act in force in the State where the property is situate or has not contravened any of the provisions of the lease, he cannot cancel the lease nor can he evict the lessee except only as provided by cl. (5) of that rule on the ground that such eviction is necessary or expedient for the preservation or proper administration or management of such property or for carrying out any other object of the Act. He, therefore, cannot evict a tenant or an allottee on the ground that it is necessary to do so for the separation of an interest of a non evacuee mortgagor as that would not be one of the purposes of the Administration Act. The result which emerges from the discussion of the relevant provisions of the two Acts and the rules thereunder made is (i) that though the Competent Officer must accept the mortgage amount when tendered by a mortgagor and the mortgage debt thereupon would be satisfied, he cannot exercise the power to redeem the mortgaged property and order the Custodian to deliver up its vacant possession to the mortgagor in the absence of any ' :agreement between the mortgagor and the Custodian, and (ii) that in exercising his jurisdiction under section 10 the Competent Officer cannot direct the Custodian to cancel or vary the terms of the leases or allotments made or granted by him, firstly because he has no such power under section 10 or any other provision of the Separation Act, and secondly, because such an order would amount to compelling the Custodian to act in a manner contrary to the provisions of the aforesaid r. 14. The exercise of the power to redeem being subject to the rules, it would not be competent for the Competent Officer, by reason of r. II B (b), to order delivery of possession by the Custodian in the absence of an agreement between him and the mortgagor claimant. In view of this position, the appellant could not have insisted that he would tender or pay the mortgage debt only against delivery of vacant possession of the property in the absence of any agreement between him and the Custodian.
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The appellant executed a usufructuary mortgage of his house and continued to reside in it as a tenant under a lease obtained from the mortgagee. In 1949, the mortgagee left for Pakistan. He was declared an evacuee and his mortgagee interest in the mortgaged property vested in the Custodian under section 8 of the. Under section 12, the Custodian evicted the appellant and allotted it to others as tenants. In spite of demands by the appellant and the appellant tendering the mortgage amount, the Custodian refused to hand over vacant possession of the house to the appellant. The appellant applied to the Competent Officer under the. The Officer determined the mortgage debt due from the appellant and the appellant claimed vacant possession against tender of payment by him of the amount. The Officer rejected the claim and ordered the sale of the property under s.10(b)(ii) of the Separation Act, for satisfaction of the mortgage debt. Thereafter, the appellant paid the entire mortgage debt and the Competent Officer accepted the amount. On the question whether the appellant was entitled to vacant possession and have the order of sale set aside, HELD:(1) Section 4 of the gives to that Act an overriding effect in relation to any other law for the time being in force, and hence the law under the Transfer of Property set, is not applicable. Though s.12 of the Act empowers the Custodian to cancel an allotment or a tenancy, created by him, under r.14(2) of the Administration of Evacuee Property (Central) Rules, 1950, the Custodian can evict a person only on a ground justifying eviction of a tenant under a law relating to rent control or for any violation of the conditions of the lease or allotment. The Custodian could not, therefore, give vacant possession of the property to the appellant on his tender of payment of the mortgage amount. [855 H; 856 A B, D F] (2) The, was passed on account of the difficulty of administering evacuee properties in which there were both evacuee and non evacuee interests and to resolve the hardship felt by non evacuees, who by reason of such properties being in the possession of the Possession were unable to obtain satisfaction of their claims in view of the prohibitive provisions of that Act. But there is no provisions by which the Custodian is made subject to the power or control of the Competent Officer or which enables the Competent Officer 852 to pass an order which would curtail or otherwise affect the powers of the Custodian. Though under s.10(b)(i) of the Separation Act, the Competent Officer can pay to the Custodian the mortgage debt and redeem the mortgaged property, his power is subject to the rules made under that Act. [856 F G; 858 B C, G H] (3) Reading the relevant provisions namely, section 12 of the and r. 14 of the Rules made thereunder, and section 10 of the Separation Act and r. 11B of the rules made thereunder, together, the position is : (i) that though the Competent ' Officer must accept the mortgage amount when tendered by a mortgagor and the mortgage debt is thereupon satisfied, he cannot exercise the power to redeem the mortgaged property and order the Custodian to deliver up its vacant possession to the mortgagor in the absence of any agreement between the mortgagor and the Custodian; (ii) that the Competent Officer can order sale only for satisfaction of the mortgage debt and for distribution of the sale proceeds between the mortgagor and mortgagee. Since in the present case, the mortgage amount had been paid by the appellant and accepted by the Competent officer, the order directing sale is unten able and should be set aside; and (iii) that in exercising his jurisdiction under section 10, the Competent Officer cannot direct the Custodian to cancel or vary the terms of the leases or allotments made or granted by him. Therefore the Competent Officer can direct only symbolical possession of the mortgaged,property to be given to the appellant, however, harsh and unfair it may apparently be. [860 D G; 861 B, E H; 862 A C] The All India Film Corporation vs Raja Gyan Nath, referred to.
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What is the summary of this judgment?
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The only thing which, the Competent Officer could do in the circumstances was to accept the mortgage amount whereupon interest would cease to run. It is not in dispute that the appellant, insisting as he was 861 all throughout upon being given vacant and not merely symbolical possession, did not actually tender or make payment of the mortgage debt. The mortgage debt, therefore, remained outstanding. The mortgage also stood intact, and therefore, the only measure which the Competent Officer could adopt and which in fact he, adopted was to order sale of the property and satisfy the mortgage debt from the sale proceeds thereof. The order which he passed and which was confirmed by the Appellate Officer was in the circumstances then prevailing validly and competently made. The appellant 's grievance against it, therefore, could not be sustained.
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The appellant executed a usufructuary mortgage of his house and continued to reside in it as a tenant under a lease obtained from the mortgagee. In 1949, the mortgagee left for Pakistan. He was declared an evacuee and his mortgagee interest in the mortgaged property vested in the Custodian under section 8 of the. Under section 12, the Custodian evicted the appellant and allotted it to others as tenants. In spite of demands by the appellant and the appellant tendering the mortgage amount, the Custodian refused to hand over vacant possession of the house to the appellant. The appellant applied to the Competent Officer under the. The Officer determined the mortgage debt due from the appellant and the appellant claimed vacant possession against tender of payment by him of the amount. The Officer rejected the claim and ordered the sale of the property under s.10(b)(ii) of the Separation Act, for satisfaction of the mortgage debt. Thereafter, the appellant paid the entire mortgage debt and the Competent Officer accepted the amount. On the question whether the appellant was entitled to vacant possession and have the order of sale set aside, HELD:(1) Section 4 of the gives to that Act an overriding effect in relation to any other law for the time being in force, and hence the law under the Transfer of Property set, is not applicable. Though s.12 of the Act empowers the Custodian to cancel an allotment or a tenancy, created by him, under r.14(2) of the Administration of Evacuee Property (Central) Rules, 1950, the Custodian can evict a person only on a ground justifying eviction of a tenant under a law relating to rent control or for any violation of the conditions of the lease or allotment. The Custodian could not, therefore, give vacant possession of the property to the appellant on his tender of payment of the mortgage amount. [855 H; 856 A B, D F] (2) The, was passed on account of the difficulty of administering evacuee properties in which there were both evacuee and non evacuee interests and to resolve the hardship felt by non evacuees, who by reason of such properties being in the possession of the Possession were unable to obtain satisfaction of their claims in view of the prohibitive provisions of that Act. But there is no provisions by which the Custodian is made subject to the power or control of the Competent Officer or which enables the Competent Officer 852 to pass an order which would curtail or otherwise affect the powers of the Custodian. Though under s.10(b)(i) of the Separation Act, the Competent Officer can pay to the Custodian the mortgage debt and redeem the mortgaged property, his power is subject to the rules made under that Act. [856 F G; 858 B C, G H] (3) Reading the relevant provisions namely, section 12 of the and r. 14 of the Rules made thereunder, and section 10 of the Separation Act and r. 11B of the rules made thereunder, together, the position is : (i) that though the Competent ' Officer must accept the mortgage amount when tendered by a mortgagor and the mortgage debt is thereupon satisfied, he cannot exercise the power to redeem the mortgaged property and order the Custodian to deliver up its vacant possession to the mortgagor in the absence of any agreement between the mortgagor and the Custodian; (ii) that the Competent Officer can order sale only for satisfaction of the mortgage debt and for distribution of the sale proceeds between the mortgagor and mortgagee. Since in the present case, the mortgage amount had been paid by the appellant and accepted by the Competent officer, the order directing sale is unten able and should be set aside; and (iii) that in exercising his jurisdiction under section 10, the Competent Officer cannot direct the Custodian to cancel or vary the terms of the leases or allotments made or granted by him. Therefore the Competent Officer can direct only symbolical possession of the mortgaged,property to be given to the appellant, however, harsh and unfair it may apparently be. [860 D G; 861 B, E H; 862 A C] The All India Film Corporation vs Raja Gyan Nath, referred to.
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What is the summary of this judgment?
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[of in this connection the position of an auction purchaser as decided in Ek Nawas Khan vs The Competent Officer(1)]. But it is conceded that since the passing of the said order the appellant has, paid up the full mortgage amount and the Competent Officer has, as he was bound to do under section 10, proviso, accepted that amount. Presumably that amount has been paid by him to the Custodian. Therefore, the mortgage debt is no longer outstanding. Though this event has happened after the impugned order was passed,, we must in fairness take notice of the fact that the mortgage debt is no longer outstanding and the mortgaged property is now free from the mortgagee 's security, and therefore, from the interest vested in the Custodian. It is true that the Com petent Officer, as already stated, can adopt any of the three measures set out in section 10(b) of the Separation Act or adopt a combination of all or some, of them, but as emerging from the discussion, above, he cannot redeem the property and order delivery of vacant possession in the absence of an agreement between the Custodian and the appellant.
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The appellant executed a usufructuary mortgage of his house and continued to reside in it as a tenant under a lease obtained from the mortgagee. In 1949, the mortgagee left for Pakistan. He was declared an evacuee and his mortgagee interest in the mortgaged property vested in the Custodian under section 8 of the. Under section 12, the Custodian evicted the appellant and allotted it to others as tenants. In spite of demands by the appellant and the appellant tendering the mortgage amount, the Custodian refused to hand over vacant possession of the house to the appellant. The appellant applied to the Competent Officer under the. The Officer determined the mortgage debt due from the appellant and the appellant claimed vacant possession against tender of payment by him of the amount. The Officer rejected the claim and ordered the sale of the property under s.10(b)(ii) of the Separation Act, for satisfaction of the mortgage debt. Thereafter, the appellant paid the entire mortgage debt and the Competent Officer accepted the amount. On the question whether the appellant was entitled to vacant possession and have the order of sale set aside, HELD:(1) Section 4 of the gives to that Act an overriding effect in relation to any other law for the time being in force, and hence the law under the Transfer of Property set, is not applicable. Though s.12 of the Act empowers the Custodian to cancel an allotment or a tenancy, created by him, under r.14(2) of the Administration of Evacuee Property (Central) Rules, 1950, the Custodian can evict a person only on a ground justifying eviction of a tenant under a law relating to rent control or for any violation of the conditions of the lease or allotment. The Custodian could not, therefore, give vacant possession of the property to the appellant on his tender of payment of the mortgage amount. [855 H; 856 A B, D F] (2) The, was passed on account of the difficulty of administering evacuee properties in which there were both evacuee and non evacuee interests and to resolve the hardship felt by non evacuees, who by reason of such properties being in the possession of the Possession were unable to obtain satisfaction of their claims in view of the prohibitive provisions of that Act. But there is no provisions by which the Custodian is made subject to the power or control of the Competent Officer or which enables the Competent Officer 852 to pass an order which would curtail or otherwise affect the powers of the Custodian. Though under s.10(b)(i) of the Separation Act, the Competent Officer can pay to the Custodian the mortgage debt and redeem the mortgaged property, his power is subject to the rules made under that Act. [856 F G; 858 B C, G H] (3) Reading the relevant provisions namely, section 12 of the and r. 14 of the Rules made thereunder, and section 10 of the Separation Act and r. 11B of the rules made thereunder, together, the position is : (i) that though the Competent ' Officer must accept the mortgage amount when tendered by a mortgagor and the mortgage debt is thereupon satisfied, he cannot exercise the power to redeem the mortgaged property and order the Custodian to deliver up its vacant possession to the mortgagor in the absence of any agreement between the mortgagor and the Custodian; (ii) that the Competent Officer can order sale only for satisfaction of the mortgage debt and for distribution of the sale proceeds between the mortgagor and mortgagee. Since in the present case, the mortgage amount had been paid by the appellant and accepted by the Competent officer, the order directing sale is unten able and should be set aside; and (iii) that in exercising his jurisdiction under section 10, the Competent Officer cannot direct the Custodian to cancel or vary the terms of the leases or allotments made or granted by him. Therefore the Competent Officer can direct only symbolical possession of the mortgaged,property to be given to the appellant, however, harsh and unfair it may apparently be. [860 D G; 861 B, E H; 862 A C] The All India Film Corporation vs Raja Gyan Nath, referred to.
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What is the summary of this judgment?
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That is quite clear. But the order of sale passed by him and confirmed by the Appellate Officer also cannot secondly, because he can order sale only for satisfaction of the mortgage debt and for distribution of the sale proceeds thereof ' between the mortgagor and the mortgagee. There being now no question of the satisfaction of the mortgage debt since it now stands satisfied and the property being now freed from the mortgagee 's security, the order for sale ' cannot stand and cannot be allowed to stand. At the same time the Competent Officer cannot order the Custodian to deliver vacant possession although the appellant has paid the mortgage amount and the Competent Officer has accepted it in satisfaction of the mortgage debt. In view of sections 10 and 12 of the Administration Act, the powers and duties of the Custodian thereunder and under the rules made under that Act, the provisions of section 10 of the Separation Act and r. II B of the rules made thereunder, the only thing that could be offered and given to the appellant was symbolical possession of the property. Such a result, no doubt, would be inconvenient, and may even (1) A.T.R.
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The appellant executed a usufructuary mortgage of his house and continued to reside in it as a tenant under a lease obtained from the mortgagee. In 1949, the mortgagee left for Pakistan. He was declared an evacuee and his mortgagee interest in the mortgaged property vested in the Custodian under section 8 of the. Under section 12, the Custodian evicted the appellant and allotted it to others as tenants. In spite of demands by the appellant and the appellant tendering the mortgage amount, the Custodian refused to hand over vacant possession of the house to the appellant. The appellant applied to the Competent Officer under the. The Officer determined the mortgage debt due from the appellant and the appellant claimed vacant possession against tender of payment by him of the amount. The Officer rejected the claim and ordered the sale of the property under s.10(b)(ii) of the Separation Act, for satisfaction of the mortgage debt. Thereafter, the appellant paid the entire mortgage debt and the Competent Officer accepted the amount. On the question whether the appellant was entitled to vacant possession and have the order of sale set aside, HELD:(1) Section 4 of the gives to that Act an overriding effect in relation to any other law for the time being in force, and hence the law under the Transfer of Property set, is not applicable. Though s.12 of the Act empowers the Custodian to cancel an allotment or a tenancy, created by him, under r.14(2) of the Administration of Evacuee Property (Central) Rules, 1950, the Custodian can evict a person only on a ground justifying eviction of a tenant under a law relating to rent control or for any violation of the conditions of the lease or allotment. The Custodian could not, therefore, give vacant possession of the property to the appellant on his tender of payment of the mortgage amount. [855 H; 856 A B, D F] (2) The, was passed on account of the difficulty of administering evacuee properties in which there were both evacuee and non evacuee interests and to resolve the hardship felt by non evacuees, who by reason of such properties being in the possession of the Possession were unable to obtain satisfaction of their claims in view of the prohibitive provisions of that Act. But there is no provisions by which the Custodian is made subject to the power or control of the Competent Officer or which enables the Competent Officer 852 to pass an order which would curtail or otherwise affect the powers of the Custodian. Though under s.10(b)(i) of the Separation Act, the Competent Officer can pay to the Custodian the mortgage debt and redeem the mortgaged property, his power is subject to the rules made under that Act. [856 F G; 858 B C, G H] (3) Reading the relevant provisions namely, section 12 of the and r. 14 of the Rules made thereunder, and section 10 of the Separation Act and r. 11B of the rules made thereunder, together, the position is : (i) that though the Competent ' Officer must accept the mortgage amount when tendered by a mortgagor and the mortgage debt is thereupon satisfied, he cannot exercise the power to redeem the mortgaged property and order the Custodian to deliver up its vacant possession to the mortgagor in the absence of any agreement between the mortgagor and the Custodian; (ii) that the Competent Officer can order sale only for satisfaction of the mortgage debt and for distribution of the sale proceeds between the mortgagor and mortgagee. Since in the present case, the mortgage amount had been paid by the appellant and accepted by the Competent officer, the order directing sale is unten able and should be set aside; and (iii) that in exercising his jurisdiction under section 10, the Competent Officer cannot direct the Custodian to cancel or vary the terms of the leases or allotments made or granted by him. Therefore the Competent Officer can direct only symbolical possession of the mortgaged,property to be given to the appellant, however, harsh and unfair it may apparently be. [860 D G; 861 B, E H; 862 A C] The All India Film Corporation vs Raja Gyan Nath, referred to.
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What is the summary of this judgment?
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1960 All. 862 appear to be harsh and unfair as the appellant would be driven to file proceedings for eviction of tenants and allottees now in possession of the property. (see The All India Film Corporation Ltd. vs Raja Gyan Nath) (1). In view of the payment of the mortgage amount by the appellant and the acceptance of it by the Competent Officer, the order directing sale has now become untenable and has, therefore, to be set aside. The mortgage stands discharged and the Competent Officer is bound to direct symbolical possession of the mortgaged property to the appellant. To this extent the appeal succeeds.
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The appellant executed a usufructuary mortgage of his house and continued to reside in it as a tenant under a lease obtained from the mortgagee. In 1949, the mortgagee left for Pakistan. He was declared an evacuee and his mortgagee interest in the mortgaged property vested in the Custodian under section 8 of the. Under section 12, the Custodian evicted the appellant and allotted it to others as tenants. In spite of demands by the appellant and the appellant tendering the mortgage amount, the Custodian refused to hand over vacant possession of the house to the appellant. The appellant applied to the Competent Officer under the. The Officer determined the mortgage debt due from the appellant and the appellant claimed vacant possession against tender of payment by him of the amount. The Officer rejected the claim and ordered the sale of the property under s.10(b)(ii) of the Separation Act, for satisfaction of the mortgage debt. Thereafter, the appellant paid the entire mortgage debt and the Competent Officer accepted the amount. On the question whether the appellant was entitled to vacant possession and have the order of sale set aside, HELD:(1) Section 4 of the gives to that Act an overriding effect in relation to any other law for the time being in force, and hence the law under the Transfer of Property set, is not applicable. Though s.12 of the Act empowers the Custodian to cancel an allotment or a tenancy, created by him, under r.14(2) of the Administration of Evacuee Property (Central) Rules, 1950, the Custodian can evict a person only on a ground justifying eviction of a tenant under a law relating to rent control or for any violation of the conditions of the lease or allotment. The Custodian could not, therefore, give vacant possession of the property to the appellant on his tender of payment of the mortgage amount. [855 H; 856 A B, D F] (2) The, was passed on account of the difficulty of administering evacuee properties in which there were both evacuee and non evacuee interests and to resolve the hardship felt by non evacuees, who by reason of such properties being in the possession of the Possession were unable to obtain satisfaction of their claims in view of the prohibitive provisions of that Act. But there is no provisions by which the Custodian is made subject to the power or control of the Competent Officer or which enables the Competent Officer 852 to pass an order which would curtail or otherwise affect the powers of the Custodian. Though under s.10(b)(i) of the Separation Act, the Competent Officer can pay to the Custodian the mortgage debt and redeem the mortgaged property, his power is subject to the rules made under that Act. [856 F G; 858 B C, G H] (3) Reading the relevant provisions namely, section 12 of the and r. 14 of the Rules made thereunder, and section 10 of the Separation Act and r. 11B of the rules made thereunder, together, the position is : (i) that though the Competent ' Officer must accept the mortgage amount when tendered by a mortgagor and the mortgage debt is thereupon satisfied, he cannot exercise the power to redeem the mortgaged property and order the Custodian to deliver up its vacant possession to the mortgagor in the absence of any agreement between the mortgagor and the Custodian; (ii) that the Competent Officer can order sale only for satisfaction of the mortgage debt and for distribution of the sale proceeds between the mortgagor and mortgagee. Since in the present case, the mortgage amount had been paid by the appellant and accepted by the Competent officer, the order directing sale is unten able and should be set aside; and (iii) that in exercising his jurisdiction under section 10, the Competent Officer cannot direct the Custodian to cancel or vary the terms of the leases or allotments made or granted by him. Therefore the Competent Officer can direct only symbolical possession of the mortgaged,property to be given to the appellant, however, harsh and unfair it may apparently be. [860 D G; 861 B, E H; 862 A C] The All India Film Corporation vs Raja Gyan Nath, referred to.
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What is the summary of this judgment?
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The order for costs of the appeal would ordinarily follow the result, but in view of the fact that the Competent Officer was entitled to pass the order of sale in the circumstances then prevailing it is fair and equitable, though his order is set aside, that the parties should bear their own costs. V.P.S Appeal allowed in part. (1) (1970] 2 S C.R. 581.
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The appellant executed a usufructuary mortgage of his house and continued to reside in it as a tenant under a lease obtained from the mortgagee. In 1949, the mortgagee left for Pakistan. He was declared an evacuee and his mortgagee interest in the mortgaged property vested in the Custodian under section 8 of the. Under section 12, the Custodian evicted the appellant and allotted it to others as tenants. In spite of demands by the appellant and the appellant tendering the mortgage amount, the Custodian refused to hand over vacant possession of the house to the appellant. The appellant applied to the Competent Officer under the. The Officer determined the mortgage debt due from the appellant and the appellant claimed vacant possession against tender of payment by him of the amount. The Officer rejected the claim and ordered the sale of the property under s.10(b)(ii) of the Separation Act, for satisfaction of the mortgage debt. Thereafter, the appellant paid the entire mortgage debt and the Competent Officer accepted the amount. On the question whether the appellant was entitled to vacant possession and have the order of sale set aside, HELD:(1) Section 4 of the gives to that Act an overriding effect in relation to any other law for the time being in force, and hence the law under the Transfer of Property set, is not applicable. Though s.12 of the Act empowers the Custodian to cancel an allotment or a tenancy, created by him, under r.14(2) of the Administration of Evacuee Property (Central) Rules, 1950, the Custodian can evict a person only on a ground justifying eviction of a tenant under a law relating to rent control or for any violation of the conditions of the lease or allotment. The Custodian could not, therefore, give vacant possession of the property to the appellant on his tender of payment of the mortgage amount. [855 H; 856 A B, D F] (2) The, was passed on account of the difficulty of administering evacuee properties in which there were both evacuee and non evacuee interests and to resolve the hardship felt by non evacuees, who by reason of such properties being in the possession of the Possession were unable to obtain satisfaction of their claims in view of the prohibitive provisions of that Act. But there is no provisions by which the Custodian is made subject to the power or control of the Competent Officer or which enables the Competent Officer 852 to pass an order which would curtail or otherwise affect the powers of the Custodian. Though under s.10(b)(i) of the Separation Act, the Competent Officer can pay to the Custodian the mortgage debt and redeem the mortgaged property, his power is subject to the rules made under that Act. [856 F G; 858 B C, G H] (3) Reading the relevant provisions namely, section 12 of the and r. 14 of the Rules made thereunder, and section 10 of the Separation Act and r. 11B of the rules made thereunder, together, the position is : (i) that though the Competent ' Officer must accept the mortgage amount when tendered by a mortgagor and the mortgage debt is thereupon satisfied, he cannot exercise the power to redeem the mortgaged property and order the Custodian to deliver up its vacant possession to the mortgagor in the absence of any agreement between the mortgagor and the Custodian; (ii) that the Competent Officer can order sale only for satisfaction of the mortgage debt and for distribution of the sale proceeds between the mortgagor and mortgagee. Since in the present case, the mortgage amount had been paid by the appellant and accepted by the Competent officer, the order directing sale is unten able and should be set aside; and (iii) that in exercising his jurisdiction under section 10, the Competent Officer cannot direct the Custodian to cancel or vary the terms of the leases or allotments made or granted by him. Therefore the Competent Officer can direct only symbolical possession of the mortgaged,property to be given to the appellant, however, harsh and unfair it may apparently be. [860 D G; 861 B, E H; 862 A C] The All India Film Corporation vs Raja Gyan Nath, referred to.
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What is the summary of this judgment?
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ivil Appeal No. 2072 of 1990. From the Judgment and Order dated 13.5. 1986 of the Calcutta High Court in Suit No. 2479 of 1967. M.K.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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Banerjee, Subrat Rai Choudhary, Gopal Subramanium, N.P. Aggarwala, Anil Aggarwala, P.C. Sharma, L.P. Aggarwala, Ms. Indira Banerjee, R.N. Jhunjhunwala, Praveen Kumar, C.S. Vaidyanathan, P.R. Seetharaman, D.N.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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Mukherjee, Raj Kumr Gupta and P.C. Kapur for the appearing parties. The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J. Leave granted. This appeal is directed against the order of the Divi sion Bench of the High Court of Calcutta. The appellant was transposed as the plaintiff in the Original Side suit No.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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2479/67 in the High Court of Calcutta. The suit was filed for a declaration that the various properties set out in the Schedule belonged and still belong to the joint family consisting of the members mentioned in the plaint. Pending the suit an application was filed for appointment of a receiver for the various properties mentioned in Schedule 'A ' annexed to the petition, for injunction and for other reliefs. One Mr. S.C. Sen was appointed as Receiver. A declaration was also sought in the suit that the trust dated October 20th, 1948 created by late Gopi Krishna Khemka, father of the plaintiff, is void and for cancellation of the same. Premises No.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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38, New Road, Alipore, building with open space was one of the properties belonging to the trust. Grindlays Bank Limited ( 'Grindlays ' for short), respondent No. 1 herein was the original tenant and they were occupying four flats and they surrendered a portion of the tenancy namely two flats i.e. Flats Nos. 1 and 2 which came into effect from 1st 965 April, 1978. The receiver let out these two flats to M/s Tata Finlay Ltd. ( 'Tatas ' for short) with Effect from Febru ary 7, 1979 pursuant to a letter written by Tatas.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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Question ing the action of the receiver an application was filed in the High Court contending that the receiver had no authority to create any tenancy and that the receiver has virtually created two new tenancies terminating the original tenancy of Grindlays and it was contended before the learned Single Judge of the Calcutta High Court that neither Grindlays nor Tatas were entitled to occupy the premises and they are liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for but, however, observed that the respective contentions of the parties as to the validity of the tenancy created in favour of Tatas have not been finally decided by the High Court and that the parties are at liberty to agitate the same grounds in any action that they may be advised to proceed for evic tion of Tatas and Grindlays. As against the order of the learned Single Judge, an appeal was filed before a Division Bench. It was contended before the Division Bench that upon surrender of Flats Nos. 1 and 2 by the Grindlays a fresh tenancy was created by the receiver from 1st April, 1978 and the other tenancy in favour of Tatas is beyond the powers of the receiver and that the receiver had no authority to create any tenancy either in favour of Grindlays or Tatas. Various contentions were raised before the Division Bench and ultimately the Division Bench having considered the several submissions passed an order, the operative portion of which reads as follows: "Therefore, the petitioner is entitled to get a decree for possession on any ground mentioned in Section 13(1) of the said Act and such relief can be obtained in a suit which cannot be filed in this court inasmuch as the premises in question is situated outside the original side jurisdiction of this Court. "
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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More or less the same contentions are advanced before us. Firstly it is submitted that the receiver had no right or authority to create any lease or tenancy in respect of the said flats for a term exceeding three years at a time and such creation of a tenancy should be deemed to be only for a period of three years ' terminable on the expiry of the said period. In this context a further submission is that upon surrender of Flat Nos. 1 and 2 by Grindlays a fresh tenancy was created by the receiver from 1st April, 1978 for which he had no authority. Therefore, the High Court ought to have ordered summary eviction of Tatas, and Grindlays. 966 It is not in dispute that the tenancy in respect of Flat Nos.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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1 and 2 was surrendered by the Grindlays and from 1st April, 1978 Tatas was inducted as tenant in respect of the said two flats at a monthly rent of Rs. 1200 and service charge at the rate of Rs.600 per month and since then Tatas is a monthly tenant in respect of the said two flats. It is the case of the Tatas that the terms of the tenancy were reduced into writing as recorded in the letter dated 7th February, 1979 and the receiver adopted the same and did not raise any objection thereto, and it claimed to be still a monthly tenant and therefore, they are entitled to protec tion under West Bengal Premises Tenancy Act ( 'Act ' for short) and the appellant has no right to demand vacant possession of the said flats from the Tatas. The stand taken by the Grindlays is that the premises in question comprised of four flats and they took all the four flats for 10 years on lease from 1st June, 1958. After the expiry of the period of the said lease relationship between Grindlays and the Trust continued to be that of landlord and tenant governed by the Act, and that in 1977 they agreed to surrender Flat Nos. 1 and 2 by the letters dated 10th March, 1978 and 29th March, 1978 addressed to the receiver in favour of Tatas.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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However, at all material times they retained the tenancy in respect of Flat Nos. 3 and 4 and continued to be tenant in respect of those flats and they are also governed by the act. In the letters written it is also stated by the Grind lays that their continuation as tenant of flat Nos. 3 and 4 was acknowledged by the receiver by his letter dated 15th May, 1978. It is contended on behalf of the appellant that after the expiry of the lease the receiver had no power to grant a lease for a period exceeding three years without the leave of this Court as envisaged in Chapter 21 Rule 5(a) of the Original side Rules and that in the instant case without obtaining any such leave receiver 's granting monthly tenan cies is illegal. Reliance was also placed on the injunction order passed by Justice A.N.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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Sen sitting on original Side while appointing the receiver. The learned Judge passed an order restraining the tenants from selling or "transferring" any of the properties mentioned in Schedule 'A '. According to the appellants the transfer includes lease and therefore, the Receiver by creating a new lease i.e. tenancy has vio lated the injunction order and on that ground also the action of the receiver should be held to be illegal. First we shall dispose of this contention and then advert to the rest. Order 40 C.P.C.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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which provides for the appointment of Receivers empowers the court to confer upon the Receivers all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property. In Satyanarayan Banerji and Ors. vs Kalyani Prosad Singh Deo Bahadur and Ors., AIR 1945 calcutta 387, a Division Bench held that the object of appointment of 967 Receiver is not to divest the rightful owner of the title but only to protect the property and an appointment might operate to change possession but cannot affect the title to the property, which remains in those in whom it was vested when the appointment was made. In Ratnasami Pillai vs Sabap athy Pillai and Ors., AIR 1925 Madras 318, it is held that the Receiver has only such powers as expressly granted by the Court. Relying on these two decisions the learned counsel for the appellants submitted that in the instant case the Re ceiver has acted in such a manner affecting the title to the property and to the detriment of the interest of the right ful owner. Section 5 of the Transfer of Property Act defines the meaning of 'transfer of property ' and it is in the following terms: "In the following sections "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to him self, or to himself and one or more other living persons and "to transfer property" is to perform such act.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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In this Section "living person" includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals. " In Mulla Transfer of Property Act, 7th Edition, page 48, there is a passage in this respect which reads thus: "The word "transfer" is defined with reference to the word "convey". This word in English Law in its narrower and more usual sense refers to the transfer of an estate in hand; but it is sometimes used in a much wider sense to include any form of an assurance inter vivos. The definition in Sec. 205(1)(ii) of the Law of Property is "conveyance includes a mortgage, charge, lease, assent, vesting declaration, vest. ing instrument, disclaimer, release of every other assurance of property or of any interest therein by any instrument except a will. "
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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This is a special definition adopted for the purposes of the Law of Property Act, 1925. The word "con veys" in Sec. 5 of the Indian act is obviously used in the wider sense referred to above. Transferor must have an 968 interest in the property. He cannot serve himself from it and yet convey it. " The word 'transfer ' is defined with reference to word 'convey '.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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In Hari Mohan alias Hari Charan Pal vs Atal Krishna Bose and Ors., XXIII Vol. Indian Cases 925, a Division Bench of the Calcutta High Court held that "the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, includes a lease, as a lease is a transfer of an interest in immovable property". It is, therefore, clear that a lease comes within the meaning of the word 'transfer ' but in this case the matter does not stop there. According to the learned counsel for the respondents the receiver has not created any new tenancy and the continuation of Grindlays as tenants in respect of Flats Nos. 3 and 4 does not amount to a new lease and, therefore, there is no transfer. Conse quently there is no violation of the injunction order passed by Justice A.N.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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Sen. Learned counsel for the respondents. referred to various documents mostly in the form of letters between the receiver and the Grindlays. We have perused these letters. They go to show that the Grindlays surren dered those two flats with the consent of the receiver but the stand taken by them is. that their continuation as tenants of Flat Nos.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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3 and 4 was acknowledged by the receiv er and the same cannot be treated as a new lease. One of the questions is whether mere surrender of Flats Nos. 1 and 2 affects the Grindlays ' tenancy of Flats Nos. 3 and 4. It is also contended by the learned counsel for the appellant that after the expiry of the stipulated period the tenancy in question turned to be a monthly tenancy and, therefore, the entire character of tenancy got changed. In Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, a Division Bench consisting of Beaumont, C.J.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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and Kania, J. explaining the nature of the monthly tenancy observed in the following terms: "A characteristic of a periodical tenancy is that as each period commences, it is not a new tenancy, it is really an accretion to the old tenancy. A monthly tenancy, that is, a tenancy subject to a month 's notice, creates in the first instance a tenancy for two months certain. But as soon as the third month commences, that is not a new tenancy; it turns the original tenancy into a three months ' tenancy, and when the fourth month begins, the tenancy becomes a four months ' tenancy, and so on so long as the tenancy 969 continues, until that is to say, notice to quit is given. " Relying on the above passage the learned counsel contended that the monthly tenancy, therefore, is new tenancy. Even otherwise, according to the learned counsel the integrity of the tenancy is broken up and on that score also it is a new tenancy. Reliance is placed on Badri Narain Jha and Ors.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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vs Rarneshwar Dayal Singh and Ors., ; it is ob served: "An interse partition of the mokarrari interest amongst the mokarraridars as alleged by the plaintiffs could not affect their liability qua the lessor for the payment of the whole rent, as several tenants of a tenancy in law constitute but a single tenant, and qua the landlord they constitute one person, each constituent part of which.possesses certain common rights in the whole and is liable to discharge common obligations in its entirety." In White vs Tyndall, 13 Appeal Cases 263 it is stated that the parties to whom a demise is made hold as tenants in common but what they covenant to pay is one rent, not two rents and not each to pay is one rent, not two rents and not each to pay half a rent but one rent. There is a privity of the estate between the tenant and the landlord in the whole of the leasehold and he is liable for all the covenants running with the land. According to the appellant, in the instant case, if this principle is followed, the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies have come into existence paying separate rents and, therefore, in that view also it is a new tenancy. Yet another submission of the appellant is that the act of the receiver in leasing out in favour of Grindlays and Tatas for a period of more than three years was bad in view of Chapter 21 Rule 5(a) of the Original Side Rules. Though this point appears to have been abandoned before the Division Bench yet it is also canvassed before us.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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Chapter 21 of the Calcutta High Court Original Side Rules deals with Receivers. Relevant part of the Rule 5 reads thus: "5. In every order directing the appointment of a Receiver of immovable property, there shall, unless otherwise or dered, be inserted the following directions: (a) that the Receiver shall have all the powers provided for 970 in Order XL, rule 1(d) of the Code, except that he shall not, without the leave of the Court (1) grant leases for a term exceeding three years. The submission is that the act of the Receiver in leasing out the flats in the above manner beyond three years is in violation of this Rule and in that view of the matter lease should be cancelled and the tenants should summarily be evicted. Learned counsel for the respondents, on the other hand, submitted that there was no new tenancy and surrender of flats Nos. 1 and 2 by the Grindlays and retaining two more flats does not amount to a new tenancy atleast so far as Grindlays is concerned and a reduction of rent also does not create new tenancy inasmuch as the rent that they had to pay was only for two flats in respect of each their tenancy continue.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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In Woodfall 's Law of Landlord and Tenant, 25th Edn. Page 969, paragraph 2079 reads as under: "2079. Implied surrender of part only. If a lessee for years accept a new lease by indenture of part of the lands, it is a surrender for that part only, and not for the whole (k); and though a contract for years cannot be so divided, as to be avoided for part of the years and to subsist for the residue, either by act of the party or act in law; yet the land itself may be divided, and the tenant may surrender one or two acres, either expressly or by act of law, and the lease for the residue will stand good and untouched. " In Halsbury 's Laws of England, 4th Edn. Volume 27, paragraph 449 read as under: "449.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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Surrender by change in nature of tenant 's occupation. A surrender is implied when the tenant remains in occupation of the premises in a capacity inconsistent with his being tenant, where, for instance, he becomes the landlord 's employee, or where the parties agree that the tenant is in future to occupy the premsises rent free for life as a licensee. An agreement by the tenant to purchase the rever sion does not of itself effect a surrender, as the purchase is conditional on a good title being made by the Landlord. " 971 In Foa 's General Law of Landlord and Tenant, 7th Edition by Judge Forbes, paragraph 991 reads thus: "991. Lease of part, & c It has been held that acceptance of a new lease of part only of the demised premises operates as a surrender of that part and no more (b); but any ar rangement between landlord and tenant which operates as a fresh demise will work a surrender of the old tenancy, and this may result from an agreement under which the tenant gives up part of the premises and pays a diminished rent for the remainder and it may result from the mere alteration in the amount of rent payable (c). Where one only of two or more lessees accepts a new lease, it is a surrender only of his share (d). "
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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In Hill and Redman 's Law of Landlord and Tenant, 16th Edn. on page 45 1, it is observed: "Any arrangement between the landlord and tenant which operates as a fresh demise will work a surrender of the old tenancy; and this may result from an agreement under which the tenant gives up part of the premises and pays a dimin ished rent for the remainder, provided a substantial differ ence is thereby made in the conditions of the tenancy. But a surrender does not follow from a mere agreement made during the tenancy for the reduction or increase of rent, or other variation of its terms, unless there is some special reason to infer a new tenancy, where, for instance, the parties make the change in the rent in the belief that the old tenancy is at an end. " From the above passage it can be inferred that surrender of a part does not amount to implied surrender of the entire tenancy and the rest of the tenancy remains untouched. We shall now examine the cases cited. In Konijeti Venkayya and Another vs Thammana Peda Venkata Subbarao and Another, 19, Viswanatha Sastri, J. referred to the above mentioned passage from Woodfall 's Law of Landlord and Tenant and observed that the principle of law is stated correctly.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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It can therefore be seen that surrender of the part of the lease does not amount to surrender of the whole. In N.M. Ponniah Nadar vs 972 Smt. Kamalakshmi Ammal, AIR 1989 SC 467 it is held: "A mere increase or reduction of rent will not necessarily import a surrender of an existing lease and the grant of a new tenancy. So also if on account of the variation in the quantum of rent any consequential change is made regarding the time and manner of the payment of the rent it cannot have the effect of graver consequences being imported into the change of rent than what the parties had intended and warrant a finding by the Court, that the parties had intend ed to create a new tenancy in supersession of the earlier one or that by operation of law a new tenancy had come into existence. " From what has been considered above it emerges that surren der of part of the tenancy does not amount to implied sur render of the entire tenancy. Likewise the mere increase or reduction of rent also will not necessarily import a surren der of an existing lease and the creation of a new tenancy.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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We have noticed above that the transfer includes 'lease '. Therefore it becomes necessary at this stage to consider whether there has been violation of injunction granted by Justice A.N. Sen which formed part of the appointment order of the Receiver. So far as the Grindlays are concerned we are unable to accede to the contention that a new tenancy is created. It is true that Justice A.N. Sen issued an injunction restraining the defendants from selling or transferring any of the properties.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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There is some force in the submission of the learned counsel for the appellant that the lease in favour of Tatas amounts to transfer but the same cannot be said of Grindlays. Therefore the question of evicting them summarily on this ground does not arise. However, the sub mission of the learned counsel is that even the lease in favour of the Grindlays expired and by creating a monthly tenancy it may even go beyond three years, and therefore it is not only creating a new lease but also is in violation of Rule 5 of the Original Side Rules. We think we need not deal with this question elaborately in view of the main and important question regarding the applicability of the provi sions of the Act. However, we have already considered and held that no new tenancy is created so far Grindlays are concerned. Regarding the contention of infraction of Rule 5 it must be noted that the tenancy continued as monthly tenancy and it cannot be said that the Receiver has created tenancy for a period exceeding three years and as observed in Utility 's case it is an accretion to the old tenancy and not a new 973 tenancy.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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Merely because there is change in a tenancy namely that it has become a monthly tenancy, it does not amount to a new tenancy as contended by the appellant so far as Grind lays are concerned. It is also submitted on behalf of the Grindlays that no new lease has been created by the Receiver and they come within the meaning of 'tenants ' and therefore they cannot be evicted except as provided under the provisions of the Act. Section 2(h) of the Act reads thus: "tenant" means any person by whom or on whose account or behalf, the rent of any premises is, or but for a special contract would be, payable and includes any person continu ing in possesion after the termination of his tenancy or in the event of such person 's death, such of his heirs as were ordinarily residing with him at the time of his death but shall not include any person against whom any decree or order for eviction has been made by a Court of competent jurisdiction. " In Darnadilal and Others vs Parashram and Others, Section 2(i) of the Madhya Pradesh Accommoda tion Control Act, 1961 which is analogous to Section 2(h) of the Act has been considered and it is held: "Tenancy has its origin in contract. There is no dispute that a contractual tenant has an estate or property in the subject matter of the tenancy, and heritability is an inci dent of the tenancy. It cannot be assumed, however, that with the determination of the tenancy the estate must neces sarily disappear and the statute can only preserve his status of irremovability and not the estate he had in the premises in his occupation. "
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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It is also further observed that: "The definition makes a person continuing in possession after the determination of his tenancy a tenant unless a decree or order for eviction has been made against him, thus putting him on par with a person whose contractual tenancy still subsists." In Biswabani (P) Ltd. vs Santosh Kumar Dutta and Ors., ; it is observed that: 974 "If thus the appellant was already in possession as a tenant of the premises an unsuccessful attempt to create a fresh lease would not change the nature of his possession as from a tenant to one in part performance under a void lease. The appellant continues to be in possession as tenant merely because the appellant and respondents 1 and 2 attempted to enter into a fresh lease which did not become effective. " Their Lordships referred to a passage in Woodfall on 'Land lord and Tenant ' Vol. 1, 27th Edn. page 187 para 446 which reads thus: "Moreover, if the tenant enters into possession under a void lease, he thereupon becomes tenant from year to year upon the terms,of the writing, so far as they are applicable to and not inconsistent with a yearly tenancy.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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Such tenancy may be determined by the usual notice to quit at the end of the first or any subsequent year, and it will determine, without any notice to quit, at the end of the term mentioned in the writing. But if the lessee does not enter he will not be liable to an action for not taking possession; nor will an action lie against the lessor for not giving possession at the time appointed for the commencement of the term but before the lease is executed. " In an unreported judgment of the Calcutta High Court in Smt. Ashrafi Devi and Anr. vs Satyapal Gupta & Ors., Suit No. 966/58 dated 9th Sept., 1977 Justice Sabyasachi Mukharji, as he then was, dealt with the question of cancelling the tenancy of lease created in respect of a room and kitchen by the Official Receiver.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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In that case it was found that the Official Receiver violating the order of the injunction granted lease which the Court found it to be illegal. Then the learned Judge proceeded further to consider whether such an illegality can be rectified in the proceedings before the Court and it was held that "Therefore, by acting in viola tion of the order of the court, no right, in my opinion, can be created in favour of a third party. Indeed the court has not acted. The action was in breach of the order of the court. " The learned counsel for the appellant relied on this judgment in support of his submission that the lease in the instant case created by the Official Receiver is also ille gal. From the facts of that case we find a clear injunction order was passed specially restraining the Receiver from creating any new tenancy and in gross violation of that order.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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But, in the instant case, the facts are different. The injunction granted 975 by A.N. Sen, J. does not apply to the tenancy in favour of Grindlays in respect of flats Nos. 3 and 4 inasmuch as it is an old tenancy though in a modified form. In Ashrafi Devi 's, case as a matter of fact, the learned Judge observed: "There was no question of the lease being given without the power by the Receiver or in derogation or in violation of the order of the court. The lease within the competency of a Receiver cannot be impeached or affected in the summary manner as was contended. "
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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We have already noted that the Grindlays were the tenants in respect of the four flats. They surrendered two flats. This partial surrender does not put an end to the tenancy and we are satisfied that in respect of the Grindlays no new tenan cy is created by the Receiver and they continued to be the tenant and they are entitled to the protection under the Act. Shri Vaidyanathan, learned counsel appearing for one of the respondents, relying on the Full Bench decision of the Madras High Court in Arumugha Gounder vs Ardhanari Mudaliar and Others, AIR 1975 Madras 23 1 contended that the protec tion under the Act cannot be extended to the tenant of a Receiver. In that case the tenant was let into possession of a land by Receiver appointed by the Court pending the suit. The question was whether the provisions of Tamil Nadu Culti vating Tenants Protection Act, 1955 can be extended to such a tenant.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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It was observed in para 6 that: "So then the act of the Receiver in letting out the land in the suit is an act of the Court itself and it is done on behalf of the Court, the whole purpose of the Court taking possession through the Receiver appointed by it is to pro tect the property for the benefit of the ultimate successful party. If that is the essence and purpose of appointment of a Receiver, as we hold it is, it will be difficult to agree that by a literal application of the Tamil Nadu Cultivating Tenants Protection Act, it could be put beyond the reach of the Court to give relief to the successful party entitled to possession." Before arriving at this conclusion, the Full Bench, as a matter of fact, also observed in para 3: 976 "If literal application of the Tamil Nadu Cultivating Ten ants Protection Act is made, it may prima facie appear that a tenant let into possession by a Receiver would be entitled to statutory protection under the Act. A cultivating tenant in relation to any land has been defined to mean a person who carries on personal cultivation on such land under a tenancy agreement, express, or implied. A "landlord" in relation to a holding or part thereof is defined to mean a person entitled to evict a cultivating tenant from such holding or part. A tenant let into possession by a Receiver appointed by Court literally appears to satisfy the defini tion of "cultivating tenant" and the Receiver, the defini tion of "Landlord" because the former carried on personal cultivating under a tenancy agreement. "
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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The Full Bench however took the view that the Receiver appointed by the Court acts as an Officer of the Court and he cannot create a lease which takes the pending matter beyond the purview of the Court and anyone who gets posses sion through such an act could only do so subject to the directions and orders of the Court. In our view the princi ple laid down by the Full Bench does not apply to the facts in the instant case atleast to the case of Grindlays as in our view on new tenancy is created in their favour. Even by the time the Receiver was appointed the Grindlays were the tenants in respect of the four flats and they continued to be so. It is only later after due correspondence that they made a partial surrender and those two flats were let out to Tatas after due negotiations in respect of the rent. Grind lays ' affidavit shows that they have also sent rent by way of Bank pay orders and they have been received by the Land lord. It is only for the first time on 26.7.88 that the tenant was informed to stop the payment of rent.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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Further the receiver has not acted in any manner affecting the title. Now coming to the case of Tatas we agree with the High Court that it is a new tenancy. Such a lease comes within the meaning of 'transfer ' and in view of the injunction order passed by A.N. Sen, J. creation of such a new tenancy is legally barred. In Kerr on Receivers, 12th Edn. at p. 154 it is observed: "The receiver does not collect the rents and profits by virtue of any estate vested in him, but by virtue of his position as an officer of the Court appointed to collect property upon the title of the parties to the action.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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977 In appointing a receiver the Court deals with the possession only until the right is determined, if the right be in dispute. " It is also useful to note a passage from Sir John Woodroffe book "on Receivers": "The Receiver being the officer of the Court from which he derives his appointment, his possession is exclusively the possession of the Court, the property being regarded as in the custody of the law, in gremio legis for the benefit of whoever may be ultimately determined to be entitled thereto." In Kanhaiyalal vs Dr. D.R. Banali, ; at p. 729 it was observed: "A receiver appointed under 0.40 of the Code of Civil Proce dure, unlike a receiver appointed under the insolvency Act, does not own the property or hold any interest therein by virtue of a title. He is only the agent of the Court for the safe custody and management of the property during the time that the Court exercises jurisdiction over the litigation in respect of the property." In such a situation the question is whether the Tatas can invoke the benefit of the provisions of the Act.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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In Smt. Ashrafi Devi 's case this is precisely the question that is decided, and we have already referred to some of the obser vations made therein. Justice Sabyasachi Mukharji held further: "On behalf of the transferee of the said property, it was contended that the West Bengal Tenancy Premises Act, 1956 protects such transferee. If however, a valid lease or a tenancy had been created then of course, such a lease or a tenant would be protected but that, in my opinion, begs the question. Secondly, it was contended that no party should be made to suffer because of an Act of the Court, I have not been able to appreciate this contention. The court specifi cally prevented the transfer or creation of the tenancy.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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The tenancy which is created was in derogation and in violation of the order of the court. Therefore, by acting in violation of the order of the court, no right, in my 978 opinion, can be created in favour of a third party. Indeed, the court has not acted. The action was in breach of the order of the court. " Similarly as observed in Arumugha Gounder 's case any such act of the Receiver done on behalf of the Court pen dente lite and anyone who gets possession through such an act could only do so subject to the directions and orders of the Court. If we apply the above principles to the case of Tatas the tenancy created in their favour by the Receiver is in violation and contrary to the injunction order and such an act is subject to the directions and orders of the Court appointing the Receiver.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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Therefore the tenancy created in favour of the Tatas was in breach of the order of the court and consequently the Tatas cannot claim any protection under the provisions of the Act and they are liable to be evicted. In the counter affidavit filed on their behalf, it is no doubt stated that they were inducted into possession and even sending the cheques. The case of the appellant is that cheques were never encashed. In any event as observed above, the new tenancy created in their favour contrary to the orders of the Court does not create a fight and is liable to be cancelled. Consequently the provisions of the Act cannot be invoked by them. The appeal is therefore dismissed as against respondent No.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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1 Grindlays and allowed as against respondent No. 2 Tatas. In the circumstances of the case, parties are directed to bear their own costs. R.S.S. Appeal dis missed.
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The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd.,, referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ;, referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors.,, distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
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What is the summary of this judgment?
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ivil Appeal No. 3504 of 1991. the Judgment and Order dated 5.10.1990 of the Bombay High Court in W.P. No. 210 of 1990. Dhruv Mehta, S.K. Mehta and Aman Vachher for the Appellants.
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The appellant was injured in a road accident on 22.1.1989, and a claim petition was filed belatedly on 15.3.1990 with a prayer for condonation of delay, before the Claims Tribunal. Meanwhile, the was repealed and the came into force with effect from 1.7.1989. The Claims Tribunal held that in view of the provisions of sub section (3) of Section 166 of the new Act, the delay of more than six months could not be condoned, and dismissed the claim. Before the High Court the appellant challenged the Tribunal 's decision, but was not successful. Thereafter, he preferred this appeal by special leave. On behalf of the appellant, it was contended that since the accident took place when the old Act was in force, the proceeding before the Accident Claims Tribunal must be held to be governed by the old Act under which the appellant had a right to file a claim petition even more than six months after the expiry of the period of limitation and this right is preserved by reason of the provisions of Section 6 of the ; and that his claim could not have been rejected on the ground of limitation under the new Act. Dismissing the appeal, this Court, HELD: 1. 'The High Court was right in taking the view that the case was covered by the new Act, and delay for a longer period than six months could not be condoned. [920D] 2. The claim to compensation which the appellant was entitled to, by reason of the accident was certainly en forceable as a right. So far the 913 period of limitation for commencing a legal proceeding is concerned, it is adjectival in nature, and has to be gov erned by the new Act subject to two conditions. If under the repealing Act the remedy suddenly stands barred as a result of a shorter period of limitation, the same cannot be held to govern the case, otherwise the result will be to deprive the suitor of an accrued right. The second exception is where the new enactment leaves the claimant with such a short period for commencing the legal proceeding so as to make it impractical for him to avail of the remedy. [916F G] New India Insurance Co. Ltd. vs Smt. Shanti Misra, ;, relied on. There is a vital difference between an application claiming compensation and a prayer to condone the delay in filing such an application. Liberty to apply for a right is not in itself an accrued right or privilege. [917E] Isha Valimohammad & Anr. vs Haji Gulam Mohammad & Haji Dada Dust, [1975] 1 SCR 720 and Lalji Raja and Sons vs Firm Hansraj Nathuram, ;, relied on. Director of Public Works and Anr. vs Ho Po Sang and Ors., ; and Abbott vs Minister of Lands,, referred to. In the instant case the period of limitation for lodging the claim under the old as well as the new Act was the same viz., six months which expired three weeks after coming into force of the new Act. It was open to the appel lant to file his claim within this period or even later by 22.7.1989 with a prayer to condone the delay. His right to claim compensation was not affected at all by the substitu tion of one Act with another. Since the period of limitation remained the same there was no question of the appellant being taken by surprise. So far the question of condonation of six months delay was concerned, there was no charge in the position under the new Act. The right or privilege to claim benefit of a provision for condonation of delay can be governed only by the law in force at the time of delay. Even the hope or expectation of getting the benefit of an enact ment presupposes applicability of the enactment when the need arises to take its benefit. The occasion to take the benefit of the provision for condonation of delay in filing the claim arose only after repeal of the old law. Obviously the ground for condonation set up as 'sufficient cause ' also relates to the time after the repeal. The 914 benefit of the repealed law could not, therefore, be avail able simply because the cause of action for the claim arose before repeal. 'Sufficient cause ' as a ground of condonation of delay in filing the claim is distinct from `cause of action ' for the claim itself. The question of condonation of delay must, therefore, be governed by the new law. [919F H; A C 920A] 5. Clause (e) of Section 6 of is also not attracted because, by the enactment of the new law, viz., the remedy of the appellant has not been affected at all. Appellant 's right to claim compensation by filing the claim within the same period of limitation has been preserved. And there was no application for condonation of delay in a proceeding pending at the time of repeal so as to allow him to claim any privilege avail able under the old Act. [916C]
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What is the summary of this judgment?
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Jitender Sharma for the Respondents. The Judgment of the Court was delivered by SHARMA, J. Special leave is granted. The appellant was injured in a road accident and his claim petition has been dismissed as being barred by limita tion. The accident took place on 22.1.1989. The Motor Vehi cles Act, 1939 was repealed by section 217(1) of the which came into force on 1.7.1989.
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The appellant was injured in a road accident on 22.1.1989, and a claim petition was filed belatedly on 15.3.1990 with a prayer for condonation of delay, before the Claims Tribunal. Meanwhile, the was repealed and the came into force with effect from 1.7.1989. The Claims Tribunal held that in view of the provisions of sub section (3) of Section 166 of the new Act, the delay of more than six months could not be condoned, and dismissed the claim. Before the High Court the appellant challenged the Tribunal 's decision, but was not successful. Thereafter, he preferred this appeal by special leave. On behalf of the appellant, it was contended that since the accident took place when the old Act was in force, the proceeding before the Accident Claims Tribunal must be held to be governed by the old Act under which the appellant had a right to file a claim petition even more than six months after the expiry of the period of limitation and this right is preserved by reason of the provisions of Section 6 of the ; and that his claim could not have been rejected on the ground of limitation under the new Act. Dismissing the appeal, this Court, HELD: 1. 'The High Court was right in taking the view that the case was covered by the new Act, and delay for a longer period than six months could not be condoned. [920D] 2. The claim to compensation which the appellant was entitled to, by reason of the accident was certainly en forceable as a right. So far the 913 period of limitation for commencing a legal proceeding is concerned, it is adjectival in nature, and has to be gov erned by the new Act subject to two conditions. If under the repealing Act the remedy suddenly stands barred as a result of a shorter period of limitation, the same cannot be held to govern the case, otherwise the result will be to deprive the suitor of an accrued right. The second exception is where the new enactment leaves the claimant with such a short period for commencing the legal proceeding so as to make it impractical for him to avail of the remedy. [916F G] New India Insurance Co. Ltd. vs Smt. Shanti Misra, ;, relied on. There is a vital difference between an application claiming compensation and a prayer to condone the delay in filing such an application. Liberty to apply for a right is not in itself an accrued right or privilege. [917E] Isha Valimohammad & Anr. vs Haji Gulam Mohammad & Haji Dada Dust, [1975] 1 SCR 720 and Lalji Raja and Sons vs Firm Hansraj Nathuram, ;, relied on. Director of Public Works and Anr. vs Ho Po Sang and Ors., ; and Abbott vs Minister of Lands,, referred to. In the instant case the period of limitation for lodging the claim under the old as well as the new Act was the same viz., six months which expired three weeks after coming into force of the new Act. It was open to the appel lant to file his claim within this period or even later by 22.7.1989 with a prayer to condone the delay. His right to claim compensation was not affected at all by the substitu tion of one Act with another. Since the period of limitation remained the same there was no question of the appellant being taken by surprise. So far the question of condonation of six months delay was concerned, there was no charge in the position under the new Act. The right or privilege to claim benefit of a provision for condonation of delay can be governed only by the law in force at the time of delay. Even the hope or expectation of getting the benefit of an enact ment presupposes applicability of the enactment when the need arises to take its benefit. The occasion to take the benefit of the provision for condonation of delay in filing the claim arose only after repeal of the old law. Obviously the ground for condonation set up as 'sufficient cause ' also relates to the time after the repeal. The 914 benefit of the repealed law could not, therefore, be avail able simply because the cause of action for the claim arose before repeal. 'Sufficient cause ' as a ground of condonation of delay in filing the claim is distinct from `cause of action ' for the claim itself. The question of condonation of delay must, therefore, be governed by the new law. [919F H; A C 920A] 5. Clause (e) of Section 6 of is also not attracted because, by the enactment of the new law, viz., the remedy of the appellant has not been affected at all. Appellant 's right to claim compensation by filing the claim within the same period of limitation has been preserved. And there was no application for condonation of delay in a proceeding pending at the time of repeal so as to allow him to claim any privilege avail able under the old Act. [916C]
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What is the summary of this judgment?
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The period of limitation for filing a claim petition both under the old Act and the new Act being six months expired on 22.7.1989. The claim petition of the appellant, however, was filed belatedly on 15.3.1990 with,a prayer for condonation of delay. The Accident Claims Tribunal held that in view of the provisions of subsection (3) of section 166 of the new, the delay of more than six months could not be condoned. The application was accordingly dismissed. The appellant unsuccessfully challenged the decision before the High Court. 915 3.
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The appellant was injured in a road accident on 22.1.1989, and a claim petition was filed belatedly on 15.3.1990 with a prayer for condonation of delay, before the Claims Tribunal. Meanwhile, the was repealed and the came into force with effect from 1.7.1989. The Claims Tribunal held that in view of the provisions of sub section (3) of Section 166 of the new Act, the delay of more than six months could not be condoned, and dismissed the claim. Before the High Court the appellant challenged the Tribunal 's decision, but was not successful. Thereafter, he preferred this appeal by special leave. On behalf of the appellant, it was contended that since the accident took place when the old Act was in force, the proceeding before the Accident Claims Tribunal must be held to be governed by the old Act under which the appellant had a right to file a claim petition even more than six months after the expiry of the period of limitation and this right is preserved by reason of the provisions of Section 6 of the ; and that his claim could not have been rejected on the ground of limitation under the new Act. Dismissing the appeal, this Court, HELD: 1. 'The High Court was right in taking the view that the case was covered by the new Act, and delay for a longer period than six months could not be condoned. [920D] 2. The claim to compensation which the appellant was entitled to, by reason of the accident was certainly en forceable as a right. So far the 913 period of limitation for commencing a legal proceeding is concerned, it is adjectival in nature, and has to be gov erned by the new Act subject to two conditions. If under the repealing Act the remedy suddenly stands barred as a result of a shorter period of limitation, the same cannot be held to govern the case, otherwise the result will be to deprive the suitor of an accrued right. The second exception is where the new enactment leaves the claimant with such a short period for commencing the legal proceeding so as to make it impractical for him to avail of the remedy. [916F G] New India Insurance Co. Ltd. vs Smt. Shanti Misra, ;, relied on. There is a vital difference between an application claiming compensation and a prayer to condone the delay in filing such an application. Liberty to apply for a right is not in itself an accrued right or privilege. [917E] Isha Valimohammad & Anr. vs Haji Gulam Mohammad & Haji Dada Dust, [1975] 1 SCR 720 and Lalji Raja and Sons vs Firm Hansraj Nathuram, ;, relied on. Director of Public Works and Anr. vs Ho Po Sang and Ors., ; and Abbott vs Minister of Lands,, referred to. In the instant case the period of limitation for lodging the claim under the old as well as the new Act was the same viz., six months which expired three weeks after coming into force of the new Act. It was open to the appel lant to file his claim within this period or even later by 22.7.1989 with a prayer to condone the delay. His right to claim compensation was not affected at all by the substitu tion of one Act with another. Since the period of limitation remained the same there was no question of the appellant being taken by surprise. So far the question of condonation of six months delay was concerned, there was no charge in the position under the new Act. The right or privilege to claim benefit of a provision for condonation of delay can be governed only by the law in force at the time of delay. Even the hope or expectation of getting the benefit of an enact ment presupposes applicability of the enactment when the need arises to take its benefit. The occasion to take the benefit of the provision for condonation of delay in filing the claim arose only after repeal of the old law. Obviously the ground for condonation set up as 'sufficient cause ' also relates to the time after the repeal. The 914 benefit of the repealed law could not, therefore, be avail able simply because the cause of action for the claim arose before repeal. 'Sufficient cause ' as a ground of condonation of delay in filing the claim is distinct from `cause of action ' for the claim itself. The question of condonation of delay must, therefore, be governed by the new law. [919F H; A C 920A] 5. Clause (e) of Section 6 of is also not attracted because, by the enactment of the new law, viz., the remedy of the appellant has not been affected at all. Appellant 's right to claim compensation by filing the claim within the same period of limitation has been preserved. And there was no application for condonation of delay in a proceeding pending at the time of repeal so as to allow him to claim any privilege avail able under the old Act. [916C]
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What is the summary of this judgment?
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It has been contended that since the accident took place when the old was in force, the proceeding before the Accident Claims Tribunal must be held to be governed by the old Act, and his petition cannot be dismissed on the basis of the provisions in the new Act. The period of limitation for filing a claim petition both under the old Act and the new Act is six months from the date of the accident. The difference in the two Acts, which is relevant in the present case, is in regard to the provisions relating to condonation of delay. In view of the proviso to sub section (3) of section 166 of the new Act, the maximum period of delay which can be condoned is six months, which expired on 22.1.1990. If the new Act is held to be applicable, the appellant 's petition filed in March had to be dismissed. The case of the appellant is that the accident having taken place before the new Act came into force, the proceeding is governed by the old Act, where there was no such restriction as in the new Act.
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The appellant was injured in a road accident on 22.1.1989, and a claim petition was filed belatedly on 15.3.1990 with a prayer for condonation of delay, before the Claims Tribunal. Meanwhile, the was repealed and the came into force with effect from 1.7.1989. The Claims Tribunal held that in view of the provisions of sub section (3) of Section 166 of the new Act, the delay of more than six months could not be condoned, and dismissed the claim. Before the High Court the appellant challenged the Tribunal 's decision, but was not successful. Thereafter, he preferred this appeal by special leave. On behalf of the appellant, it was contended that since the accident took place when the old Act was in force, the proceeding before the Accident Claims Tribunal must be held to be governed by the old Act under which the appellant had a right to file a claim petition even more than six months after the expiry of the period of limitation and this right is preserved by reason of the provisions of Section 6 of the ; and that his claim could not have been rejected on the ground of limitation under the new Act. Dismissing the appeal, this Court, HELD: 1. 'The High Court was right in taking the view that the case was covered by the new Act, and delay for a longer period than six months could not be condoned. [920D] 2. The claim to compensation which the appellant was entitled to, by reason of the accident was certainly en forceable as a right. So far the 913 period of limitation for commencing a legal proceeding is concerned, it is adjectival in nature, and has to be gov erned by the new Act subject to two conditions. If under the repealing Act the remedy suddenly stands barred as a result of a shorter period of limitation, the same cannot be held to govern the case, otherwise the result will be to deprive the suitor of an accrued right. The second exception is where the new enactment leaves the claimant with such a short period for commencing the legal proceeding so as to make it impractical for him to avail of the remedy. [916F G] New India Insurance Co. Ltd. vs Smt. Shanti Misra, ;, relied on. There is a vital difference between an application claiming compensation and a prayer to condone the delay in filing such an application. Liberty to apply for a right is not in itself an accrued right or privilege. [917E] Isha Valimohammad & Anr. vs Haji Gulam Mohammad & Haji Dada Dust, [1975] 1 SCR 720 and Lalji Raja and Sons vs Firm Hansraj Nathuram, ;, relied on. Director of Public Works and Anr. vs Ho Po Sang and Ors., ; and Abbott vs Minister of Lands,, referred to. In the instant case the period of limitation for lodging the claim under the old as well as the new Act was the same viz., six months which expired three weeks after coming into force of the new Act. It was open to the appel lant to file his claim within this period or even later by 22.7.1989 with a prayer to condone the delay. His right to claim compensation was not affected at all by the substitu tion of one Act with another. Since the period of limitation remained the same there was no question of the appellant being taken by surprise. So far the question of condonation of six months delay was concerned, there was no charge in the position under the new Act. The right or privilege to claim benefit of a provision for condonation of delay can be governed only by the law in force at the time of delay. Even the hope or expectation of getting the benefit of an enact ment presupposes applicability of the enactment when the need arises to take its benefit. The occasion to take the benefit of the provision for condonation of delay in filing the claim arose only after repeal of the old law. Obviously the ground for condonation set up as 'sufficient cause ' also relates to the time after the repeal. The 914 benefit of the repealed law could not, therefore, be avail able simply because the cause of action for the claim arose before repeal. 'Sufficient cause ' as a ground of condonation of delay in filing the claim is distinct from `cause of action ' for the claim itself. The question of condonation of delay must, therefore, be governed by the new law. [919F H; A C 920A] 5. Clause (e) of Section 6 of is also not attracted because, by the enactment of the new law, viz., the remedy of the appellant has not been affected at all. Appellant 's right to claim compensation by filing the claim within the same period of limitation has been preserved. And there was no application for condonation of delay in a proceeding pending at the time of repeal so as to allow him to claim any privilege avail able under the old Act. [916C]
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What is the summary of this judgment?
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The ques tion is as to which Act is applicable; the new Act or the old. It has been contended by the learned counsel that under the old Act the appellant had a right to file a claim petition even more than six months after the expiry of the period of limitation, and this right is preserved by reason of the provisions of section 6 of the. Reliance has been placed on clauses (c) and (e). The relevant portion of the section reads thus: "6. Effect of repeal Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enact ment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not (a).. (b).. (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in 916 respect of any such right, privilege, obliga tion, liability, penalty, forfeiture or pun ishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repeating Act or Regulation had not been passed. " We are unable to agree.
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The appellant was injured in a road accident on 22.1.1989, and a claim petition was filed belatedly on 15.3.1990 with a prayer for condonation of delay, before the Claims Tribunal. Meanwhile, the was repealed and the came into force with effect from 1.7.1989. The Claims Tribunal held that in view of the provisions of sub section (3) of Section 166 of the new Act, the delay of more than six months could not be condoned, and dismissed the claim. Before the High Court the appellant challenged the Tribunal 's decision, but was not successful. Thereafter, he preferred this appeal by special leave. On behalf of the appellant, it was contended that since the accident took place when the old Act was in force, the proceeding before the Accident Claims Tribunal must be held to be governed by the old Act under which the appellant had a right to file a claim petition even more than six months after the expiry of the period of limitation and this right is preserved by reason of the provisions of Section 6 of the ; and that his claim could not have been rejected on the ground of limitation under the new Act. Dismissing the appeal, this Court, HELD: 1. 'The High Court was right in taking the view that the case was covered by the new Act, and delay for a longer period than six months could not be condoned. [920D] 2. The claim to compensation which the appellant was entitled to, by reason of the accident was certainly en forceable as a right. So far the 913 period of limitation for commencing a legal proceeding is concerned, it is adjectival in nature, and has to be gov erned by the new Act subject to two conditions. If under the repealing Act the remedy suddenly stands barred as a result of a shorter period of limitation, the same cannot be held to govern the case, otherwise the result will be to deprive the suitor of an accrued right. The second exception is where the new enactment leaves the claimant with such a short period for commencing the legal proceeding so as to make it impractical for him to avail of the remedy. [916F G] New India Insurance Co. Ltd. vs Smt. Shanti Misra, ;, relied on. There is a vital difference between an application claiming compensation and a prayer to condone the delay in filing such an application. Liberty to apply for a right is not in itself an accrued right or privilege. [917E] Isha Valimohammad & Anr. vs Haji Gulam Mohammad & Haji Dada Dust, [1975] 1 SCR 720 and Lalji Raja and Sons vs Firm Hansraj Nathuram, ;, relied on. Director of Public Works and Anr. vs Ho Po Sang and Ors., ; and Abbott vs Minister of Lands,, referred to. In the instant case the period of limitation for lodging the claim under the old as well as the new Act was the same viz., six months which expired three weeks after coming into force of the new Act. It was open to the appel lant to file his claim within this period or even later by 22.7.1989 with a prayer to condone the delay. His right to claim compensation was not affected at all by the substitu tion of one Act with another. Since the period of limitation remained the same there was no question of the appellant being taken by surprise. So far the question of condonation of six months delay was concerned, there was no charge in the position under the new Act. The right or privilege to claim benefit of a provision for condonation of delay can be governed only by the law in force at the time of delay. Even the hope or expectation of getting the benefit of an enact ment presupposes applicability of the enactment when the need arises to take its benefit. The occasion to take the benefit of the provision for condonation of delay in filing the claim arose only after repeal of the old law. Obviously the ground for condonation set up as 'sufficient cause ' also relates to the time after the repeal. The 914 benefit of the repealed law could not, therefore, be avail able simply because the cause of action for the claim arose before repeal. 'Sufficient cause ' as a ground of condonation of delay in filing the claim is distinct from `cause of action ' for the claim itself. The question of condonation of delay must, therefore, be governed by the new law. [919F H; A C 920A] 5. Clause (e) of Section 6 of is also not attracted because, by the enactment of the new law, viz., the remedy of the appellant has not been affected at all. Appellant 's right to claim compensation by filing the claim within the same period of limitation has been preserved. And there was no application for condonation of delay in a proceeding pending at the time of repeal so as to allow him to claim any privilege avail able under the old Act. [916C]
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What is the summary of this judgment?
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Clause (e) is not attracted because, by the enactment of the new law the remedy of the appellant has not been affected at all. His right to claim compensa tion by filing the claim within the same period of limita tion has been preserved. And there was no application for condonation of delay in a proceeding pending at the time of repeal so as to allow him to claim any privilege available under the old Act. So far the applicability of clause (c) is concerned, the question depends on whether the appellant had got an accrued right or privilege under the old law which he could not have been deprived of by the repealing legisla tion. Even independent of the, it is firmly established that unless a new statute expressly or by necessary implication says so, it will not be presumed that it deprives a person of an accrued right. On the other hand, a law which is procedural in nature, and does not affect the rights, has to be held to be retrospectively applicable.
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The appellant was injured in a road accident on 22.1.1989, and a claim petition was filed belatedly on 15.3.1990 with a prayer for condonation of delay, before the Claims Tribunal. Meanwhile, the was repealed and the came into force with effect from 1.7.1989. The Claims Tribunal held that in view of the provisions of sub section (3) of Section 166 of the new Act, the delay of more than six months could not be condoned, and dismissed the claim. Before the High Court the appellant challenged the Tribunal 's decision, but was not successful. Thereafter, he preferred this appeal by special leave. On behalf of the appellant, it was contended that since the accident took place when the old Act was in force, the proceeding before the Accident Claims Tribunal must be held to be governed by the old Act under which the appellant had a right to file a claim petition even more than six months after the expiry of the period of limitation and this right is preserved by reason of the provisions of Section 6 of the ; and that his claim could not have been rejected on the ground of limitation under the new Act. Dismissing the appeal, this Court, HELD: 1. 'The High Court was right in taking the view that the case was covered by the new Act, and delay for a longer period than six months could not be condoned. [920D] 2. The claim to compensation which the appellant was entitled to, by reason of the accident was certainly en forceable as a right. So far the 913 period of limitation for commencing a legal proceeding is concerned, it is adjectival in nature, and has to be gov erned by the new Act subject to two conditions. If under the repealing Act the remedy suddenly stands barred as a result of a shorter period of limitation, the same cannot be held to govern the case, otherwise the result will be to deprive the suitor of an accrued right. The second exception is where the new enactment leaves the claimant with such a short period for commencing the legal proceeding so as to make it impractical for him to avail of the remedy. [916F G] New India Insurance Co. Ltd. vs Smt. Shanti Misra, ;, relied on. There is a vital difference between an application claiming compensation and a prayer to condone the delay in filing such an application. Liberty to apply for a right is not in itself an accrued right or privilege. [917E] Isha Valimohammad & Anr. vs Haji Gulam Mohammad & Haji Dada Dust, [1975] 1 SCR 720 and Lalji Raja and Sons vs Firm Hansraj Nathuram, ;, relied on. Director of Public Works and Anr. vs Ho Po Sang and Ors., ; and Abbott vs Minister of Lands,, referred to. In the instant case the period of limitation for lodging the claim under the old as well as the new Act was the same viz., six months which expired three weeks after coming into force of the new Act. It was open to the appel lant to file his claim within this period or even later by 22.7.1989 with a prayer to condone the delay. His right to claim compensation was not affected at all by the substitu tion of one Act with another. Since the period of limitation remained the same there was no question of the appellant being taken by surprise. So far the question of condonation of six months delay was concerned, there was no charge in the position under the new Act. The right or privilege to claim benefit of a provision for condonation of delay can be governed only by the law in force at the time of delay. Even the hope or expectation of getting the benefit of an enact ment presupposes applicability of the enactment when the need arises to take its benefit. The occasion to take the benefit of the provision for condonation of delay in filing the claim arose only after repeal of the old law. Obviously the ground for condonation set up as 'sufficient cause ' also relates to the time after the repeal. The 914 benefit of the repealed law could not, therefore, be avail able simply because the cause of action for the claim arose before repeal. 'Sufficient cause ' as a ground of condonation of delay in filing the claim is distinct from `cause of action ' for the claim itself. The question of condonation of delay must, therefore, be governed by the new law. [919F H; A C 920A] 5. Clause (e) of Section 6 of is also not attracted because, by the enactment of the new law, viz., the remedy of the appellant has not been affected at all. Appellant 's right to claim compensation by filing the claim within the same period of limitation has been preserved. And there was no application for condonation of delay in a proceeding pending at the time of repeal so as to allow him to claim any privilege avail able under the old Act. [916C]
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What is the summary of this judgment?
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The question is whether the appellant has been deprived of an accrued right or privilege in the present case 7. It is true that the appellant earlier could file an application even more than six months after the expiry of the period of limitation, but can this be treated to be a right which the appellant had acquired. The answer is in the negative. The claim to compensation which the appellant was entitled to, by reason of the accident was certainly en forceable as a right. So far the period of limitation for commencing a legal proceeding is concerned, it is adjectival in nature, and has to be governed by the new Act subject to two, conditions. If under the repealing Act the remedy suddenly stands barred as a result of a shorter period of limitation, the same cannot be held to govern the case, otherwise the result will be to deprive the suitor of an accrued right.
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The appellant was injured in a road accident on 22.1.1989, and a claim petition was filed belatedly on 15.3.1990 with a prayer for condonation of delay, before the Claims Tribunal. Meanwhile, the was repealed and the came into force with effect from 1.7.1989. The Claims Tribunal held that in view of the provisions of sub section (3) of Section 166 of the new Act, the delay of more than six months could not be condoned, and dismissed the claim. Before the High Court the appellant challenged the Tribunal 's decision, but was not successful. Thereafter, he preferred this appeal by special leave. On behalf of the appellant, it was contended that since the accident took place when the old Act was in force, the proceeding before the Accident Claims Tribunal must be held to be governed by the old Act under which the appellant had a right to file a claim petition even more than six months after the expiry of the period of limitation and this right is preserved by reason of the provisions of Section 6 of the ; and that his claim could not have been rejected on the ground of limitation under the new Act. Dismissing the appeal, this Court, HELD: 1. 'The High Court was right in taking the view that the case was covered by the new Act, and delay for a longer period than six months could not be condoned. [920D] 2. The claim to compensation which the appellant was entitled to, by reason of the accident was certainly en forceable as a right. So far the 913 period of limitation for commencing a legal proceeding is concerned, it is adjectival in nature, and has to be gov erned by the new Act subject to two conditions. If under the repealing Act the remedy suddenly stands barred as a result of a shorter period of limitation, the same cannot be held to govern the case, otherwise the result will be to deprive the suitor of an accrued right. The second exception is where the new enactment leaves the claimant with such a short period for commencing the legal proceeding so as to make it impractical for him to avail of the remedy. [916F G] New India Insurance Co. Ltd. vs Smt. Shanti Misra, ;, relied on. There is a vital difference between an application claiming compensation and a prayer to condone the delay in filing such an application. Liberty to apply for a right is not in itself an accrued right or privilege. [917E] Isha Valimohammad & Anr. vs Haji Gulam Mohammad & Haji Dada Dust, [1975] 1 SCR 720 and Lalji Raja and Sons vs Firm Hansraj Nathuram, ;, relied on. Director of Public Works and Anr. vs Ho Po Sang and Ors., ; and Abbott vs Minister of Lands,, referred to. In the instant case the period of limitation for lodging the claim under the old as well as the new Act was the same viz., six months which expired three weeks after coming into force of the new Act. It was open to the appel lant to file his claim within this period or even later by 22.7.1989 with a prayer to condone the delay. His right to claim compensation was not affected at all by the substitu tion of one Act with another. Since the period of limitation remained the same there was no question of the appellant being taken by surprise. So far the question of condonation of six months delay was concerned, there was no charge in the position under the new Act. The right or privilege to claim benefit of a provision for condonation of delay can be governed only by the law in force at the time of delay. Even the hope or expectation of getting the benefit of an enact ment presupposes applicability of the enactment when the need arises to take its benefit. The occasion to take the benefit of the provision for condonation of delay in filing the claim arose only after repeal of the old law. Obviously the ground for condonation set up as 'sufficient cause ' also relates to the time after the repeal. The 914 benefit of the repealed law could not, therefore, be avail able simply because the cause of action for the claim arose before repeal. 'Sufficient cause ' as a ground of condonation of delay in filing the claim is distinct from `cause of action ' for the claim itself. The question of condonation of delay must, therefore, be governed by the new law. [919F H; A C 920A] 5. Clause (e) of Section 6 of is also not attracted because, by the enactment of the new law, viz., the remedy of the appellant has not been affected at all. Appellant 's right to claim compensation by filing the claim within the same period of limitation has been preserved. And there was no application for condonation of delay in a proceeding pending at the time of repeal so as to allow him to claim any privilege avail able under the old Act. [916C]
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What is the summary of this judgment?
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The second exception is where the new enactment leaves the claimant with such a short period for commencing the legal proceeding so as to make it impractical for him to avail of the remedy. This principle has been followed by this Court in many cases and by way of illustra tion we would like to mention New India Insurance Co. Ltd. vs Smt. Shanti 917 Misra;, The husband of the respondent in that case died in an accident in 1966. A period of two years was available to the respondent for instituting a suit for recovery of damages. In March, 1967 the Claims Tribunal under section 110 of the was con stituted, barring the jurisdiction of the civil court and prescribing 60 days as the period of limitation. The re spondent filed the application in July, 1967.
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The appellant was injured in a road accident on 22.1.1989, and a claim petition was filed belatedly on 15.3.1990 with a prayer for condonation of delay, before the Claims Tribunal. Meanwhile, the was repealed and the came into force with effect from 1.7.1989. The Claims Tribunal held that in view of the provisions of sub section (3) of Section 166 of the new Act, the delay of more than six months could not be condoned, and dismissed the claim. Before the High Court the appellant challenged the Tribunal 's decision, but was not successful. Thereafter, he preferred this appeal by special leave. On behalf of the appellant, it was contended that since the accident took place when the old Act was in force, the proceeding before the Accident Claims Tribunal must be held to be governed by the old Act under which the appellant had a right to file a claim petition even more than six months after the expiry of the period of limitation and this right is preserved by reason of the provisions of Section 6 of the ; and that his claim could not have been rejected on the ground of limitation under the new Act. Dismissing the appeal, this Court, HELD: 1. 'The High Court was right in taking the view that the case was covered by the new Act, and delay for a longer period than six months could not be condoned. [920D] 2. The claim to compensation which the appellant was entitled to, by reason of the accident was certainly en forceable as a right. So far the 913 period of limitation for commencing a legal proceeding is concerned, it is adjectival in nature, and has to be gov erned by the new Act subject to two conditions. If under the repealing Act the remedy suddenly stands barred as a result of a shorter period of limitation, the same cannot be held to govern the case, otherwise the result will be to deprive the suitor of an accrued right. The second exception is where the new enactment leaves the claimant with such a short period for commencing the legal proceeding so as to make it impractical for him to avail of the remedy. [916F G] New India Insurance Co. Ltd. vs Smt. Shanti Misra, ;, relied on. There is a vital difference between an application claiming compensation and a prayer to condone the delay in filing such an application. Liberty to apply for a right is not in itself an accrued right or privilege. [917E] Isha Valimohammad & Anr. vs Haji Gulam Mohammad & Haji Dada Dust, [1975] 1 SCR 720 and Lalji Raja and Sons vs Firm Hansraj Nathuram, ;, relied on. Director of Public Works and Anr. vs Ho Po Sang and Ors., ; and Abbott vs Minister of Lands,, referred to. In the instant case the period of limitation for lodging the claim under the old as well as the new Act was the same viz., six months which expired three weeks after coming into force of the new Act. It was open to the appel lant to file his claim within this period or even later by 22.7.1989 with a prayer to condone the delay. His right to claim compensation was not affected at all by the substitu tion of one Act with another. Since the period of limitation remained the same there was no question of the appellant being taken by surprise. So far the question of condonation of six months delay was concerned, there was no charge in the position under the new Act. The right or privilege to claim benefit of a provision for condonation of delay can be governed only by the law in force at the time of delay. Even the hope or expectation of getting the benefit of an enact ment presupposes applicability of the enactment when the need arises to take its benefit. The occasion to take the benefit of the provision for condonation of delay in filing the claim arose only after repeal of the old law. Obviously the ground for condonation set up as 'sufficient cause ' also relates to the time after the repeal. The 914 benefit of the repealed law could not, therefore, be avail able simply because the cause of action for the claim arose before repeal. 'Sufficient cause ' as a ground of condonation of delay in filing the claim is distinct from `cause of action ' for the claim itself. The question of condonation of delay must, therefore, be governed by the new law. [919F H; A C 920A] 5. Clause (e) of Section 6 of is also not attracted because, by the enactment of the new law, viz., the remedy of the appellant has not been affected at all. Appellant 's right to claim compensation by filing the claim within the same period of limitation has been preserved. And there was no application for condonation of delay in a proceeding pending at the time of repeal so as to allow him to claim any privilege avail able under the old Act. [916C]
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What is the summary of this judgment?
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It was held that not having filed a suit before March, 1967 the only remedy of the respondent was by way of an application before the Tribunal. So far the period of limitation was concerned, it was observed that a new law of limitation providing for a shorter period cannot certainly extinguish a vested right of action. In view of the change of the law it was held that the application could be filed within a reasonable time after the constitution of the Tribunal; and, that the time of about four months taken by the respondent in approaching the Tribunal after its constitution, could be held to be either reasonable time or the delay of about two months could be condoned under the proviso.to section 110A(3). The learned counsel strenuously contended that the present case must be considered as one where an accrued right has been affected, because the option to move an application for condonation of delay belatedly filed should be treated as a right. This cannot be accepted. There is a vital difference between an application claiming compensa tion and a prayer to condone the delay in filing such an application.
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The appellant was injured in a road accident on 22.1.1989, and a claim petition was filed belatedly on 15.3.1990 with a prayer for condonation of delay, before the Claims Tribunal. Meanwhile, the was repealed and the came into force with effect from 1.7.1989. The Claims Tribunal held that in view of the provisions of sub section (3) of Section 166 of the new Act, the delay of more than six months could not be condoned, and dismissed the claim. Before the High Court the appellant challenged the Tribunal 's decision, but was not successful. Thereafter, he preferred this appeal by special leave. On behalf of the appellant, it was contended that since the accident took place when the old Act was in force, the proceeding before the Accident Claims Tribunal must be held to be governed by the old Act under which the appellant had a right to file a claim petition even more than six months after the expiry of the period of limitation and this right is preserved by reason of the provisions of Section 6 of the ; and that his claim could not have been rejected on the ground of limitation under the new Act. Dismissing the appeal, this Court, HELD: 1. 'The High Court was right in taking the view that the case was covered by the new Act, and delay for a longer period than six months could not be condoned. [920D] 2. The claim to compensation which the appellant was entitled to, by reason of the accident was certainly en forceable as a right. So far the 913 period of limitation for commencing a legal proceeding is concerned, it is adjectival in nature, and has to be gov erned by the new Act subject to two conditions. If under the repealing Act the remedy suddenly stands barred as a result of a shorter period of limitation, the same cannot be held to govern the case, otherwise the result will be to deprive the suitor of an accrued right. The second exception is where the new enactment leaves the claimant with such a short period for commencing the legal proceeding so as to make it impractical for him to avail of the remedy. [916F G] New India Insurance Co. Ltd. vs Smt. Shanti Misra, ;, relied on. There is a vital difference between an application claiming compensation and a prayer to condone the delay in filing such an application. Liberty to apply for a right is not in itself an accrued right or privilege. [917E] Isha Valimohammad & Anr. vs Haji Gulam Mohammad & Haji Dada Dust, [1975] 1 SCR 720 and Lalji Raja and Sons vs Firm Hansraj Nathuram, ;, relied on. Director of Public Works and Anr. vs Ho Po Sang and Ors., ; and Abbott vs Minister of Lands,, referred to. In the instant case the period of limitation for lodging the claim under the old as well as the new Act was the same viz., six months which expired three weeks after coming into force of the new Act. It was open to the appel lant to file his claim within this period or even later by 22.7.1989 with a prayer to condone the delay. His right to claim compensation was not affected at all by the substitu tion of one Act with another. Since the period of limitation remained the same there was no question of the appellant being taken by surprise. So far the question of condonation of six months delay was concerned, there was no charge in the position under the new Act. The right or privilege to claim benefit of a provision for condonation of delay can be governed only by the law in force at the time of delay. Even the hope or expectation of getting the benefit of an enact ment presupposes applicability of the enactment when the need arises to take its benefit. The occasion to take the benefit of the provision for condonation of delay in filing the claim arose only after repeal of the old law. Obviously the ground for condonation set up as 'sufficient cause ' also relates to the time after the repeal. The 914 benefit of the repealed law could not, therefore, be avail able simply because the cause of action for the claim arose before repeal. 'Sufficient cause ' as a ground of condonation of delay in filing the claim is distinct from `cause of action ' for the claim itself. The question of condonation of delay must, therefore, be governed by the new law. [919F H; A C 920A] 5. Clause (e) of Section 6 of is also not attracted because, by the enactment of the new law, viz., the remedy of the appellant has not been affected at all. Appellant 's right to claim compensation by filing the claim within the same period of limitation has been preserved. And there was no application for condonation of delay in a proceeding pending at the time of repeal so as to allow him to claim any privilege avail able under the old Act. [916C]
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What is the summary of this judgment?
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Liberty to apply for a right is not in it selt an accrued right or privilege. To illustrate the point, we may refer to some cases. In Director of Public Works and Another vs Ho Po Sang and Others, ; a Crown lessee in respect of certain premises which were in occupation of tenants and sub tenants entered into an agreement with the appellant Director for developing the site by erecting buildings. The erection of the new buildings necessitated the demolition of the existing buildings. Under the provisions of an Ordinance a Crown lessee was entitled to recover vacant possession of the premises if he obtained a re building certificate from the Director. On the application of the Crown lessee a proceeding for grant of the certificate was started and the Director issued a notice under the Ordinance indicating his intention to grant the re building certificate.
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The appellant was injured in a road accident on 22.1.1989, and a claim petition was filed belatedly on 15.3.1990 with a prayer for condonation of delay, before the Claims Tribunal. Meanwhile, the was repealed and the came into force with effect from 1.7.1989. The Claims Tribunal held that in view of the provisions of sub section (3) of Section 166 of the new Act, the delay of more than six months could not be condoned, and dismissed the claim. Before the High Court the appellant challenged the Tribunal 's decision, but was not successful. Thereafter, he preferred this appeal by special leave. On behalf of the appellant, it was contended that since the accident took place when the old Act was in force, the proceeding before the Accident Claims Tribunal must be held to be governed by the old Act under which the appellant had a right to file a claim petition even more than six months after the expiry of the period of limitation and this right is preserved by reason of the provisions of Section 6 of the ; and that his claim could not have been rejected on the ground of limitation under the new Act. Dismissing the appeal, this Court, HELD: 1. 'The High Court was right in taking the view that the case was covered by the new Act, and delay for a longer period than six months could not be condoned. [920D] 2. The claim to compensation which the appellant was entitled to, by reason of the accident was certainly en forceable as a right. So far the 913 period of limitation for commencing a legal proceeding is concerned, it is adjectival in nature, and has to be gov erned by the new Act subject to two conditions. If under the repealing Act the remedy suddenly stands barred as a result of a shorter period of limitation, the same cannot be held to govern the case, otherwise the result will be to deprive the suitor of an accrued right. The second exception is where the new enactment leaves the claimant with such a short period for commencing the legal proceeding so as to make it impractical for him to avail of the remedy. [916F G] New India Insurance Co. Ltd. vs Smt. Shanti Misra, ;, relied on. There is a vital difference between an application claiming compensation and a prayer to condone the delay in filing such an application. Liberty to apply for a right is not in itself an accrued right or privilege. [917E] Isha Valimohammad & Anr. vs Haji Gulam Mohammad & Haji Dada Dust, [1975] 1 SCR 720 and Lalji Raja and Sons vs Firm Hansraj Nathuram, ;, relied on. Director of Public Works and Anr. vs Ho Po Sang and Ors., ; and Abbott vs Minister of Lands,, referred to. In the instant case the period of limitation for lodging the claim under the old as well as the new Act was the same viz., six months which expired three weeks after coming into force of the new Act. It was open to the appel lant to file his claim within this period or even later by 22.7.1989 with a prayer to condone the delay. His right to claim compensation was not affected at all by the substitu tion of one Act with another. Since the period of limitation remained the same there was no question of the appellant being taken by surprise. So far the question of condonation of six months delay was concerned, there was no charge in the position under the new Act. The right or privilege to claim benefit of a provision for condonation of delay can be governed only by the law in force at the time of delay. Even the hope or expectation of getting the benefit of an enact ment presupposes applicability of the enactment when the need arises to take its benefit. The occasion to take the benefit of the provision for condonation of delay in filing the claim arose only after repeal of the old law. Obviously the ground for condonation set up as 'sufficient cause ' also relates to the time after the repeal. The 914 benefit of the repealed law could not, therefore, be avail able simply because the cause of action for the claim arose before repeal. 'Sufficient cause ' as a ground of condonation of delay in filing the claim is distinct from `cause of action ' for the claim itself. The question of condonation of delay must, therefore, be governed by the new law. [919F H; A C 920A] 5. Clause (e) of Section 6 of is also not attracted because, by the enactment of the new law, viz., the remedy of the appellant has not been affected at all. Appellant 's right to claim compensation by filing the claim within the same period of limitation has been preserved. And there was no application for condonation of delay in a proceeding pending at the time of repeal so as to allow him to claim any privilege avail able under the old Act. [916C]
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What is the summary of this judgment?
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Before the certificate could be finally issued, the relevant provision of the Ordinance entitling the lessee to recover vacant possession of the premises was repealed. The lessee claimed the right to vacant possession by relying on certain provi sions dealing with rules of interpretation similar in terms to section 6 of our. The plea 918 was rejected on the ground that although the lessee was entitled to make an application for vacant possession before the Ordinance was repealed, it did not amount to an accrued right or privilege, capable of being preserved after the repeal of the Ordinance, as the right was dependent on the actual issuance of a certificate. In an earlier case of Abbott vs Minister of Lands, the appellant was entitled to make purchases of Crown land adjoining his holding by virtue of certain statutory provisions, which were repealed before he could effectively enforce his right. Besides raising other grounds in respect of his claim, he argued that the right which he had under the repealed enactment was a "right accrued" and of which he could not be deprived of by the repeal. Reject ing the plea, it was observed that the mere right existing in a class of persons to take advantage of an enactment, cannot in absence of any act done by the claimant towards availing himself of that right be deemed a "right accrued".
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The appellant was injured in a road accident on 22.1.1989, and a claim petition was filed belatedly on 15.3.1990 with a prayer for condonation of delay, before the Claims Tribunal. Meanwhile, the was repealed and the came into force with effect from 1.7.1989. The Claims Tribunal held that in view of the provisions of sub section (3) of Section 166 of the new Act, the delay of more than six months could not be condoned, and dismissed the claim. Before the High Court the appellant challenged the Tribunal 's decision, but was not successful. Thereafter, he preferred this appeal by special leave. On behalf of the appellant, it was contended that since the accident took place when the old Act was in force, the proceeding before the Accident Claims Tribunal must be held to be governed by the old Act under which the appellant had a right to file a claim petition even more than six months after the expiry of the period of limitation and this right is preserved by reason of the provisions of Section 6 of the ; and that his claim could not have been rejected on the ground of limitation under the new Act. Dismissing the appeal, this Court, HELD: 1. 'The High Court was right in taking the view that the case was covered by the new Act, and delay for a longer period than six months could not be condoned. [920D] 2. The claim to compensation which the appellant was entitled to, by reason of the accident was certainly en forceable as a right. So far the 913 period of limitation for commencing a legal proceeding is concerned, it is adjectival in nature, and has to be gov erned by the new Act subject to two conditions. If under the repealing Act the remedy suddenly stands barred as a result of a shorter period of limitation, the same cannot be held to govern the case, otherwise the result will be to deprive the suitor of an accrued right. The second exception is where the new enactment leaves the claimant with such a short period for commencing the legal proceeding so as to make it impractical for him to avail of the remedy. [916F G] New India Insurance Co. Ltd. vs Smt. Shanti Misra, ;, relied on. There is a vital difference between an application claiming compensation and a prayer to condone the delay in filing such an application. Liberty to apply for a right is not in itself an accrued right or privilege. [917E] Isha Valimohammad & Anr. vs Haji Gulam Mohammad & Haji Dada Dust, [1975] 1 SCR 720 and Lalji Raja and Sons vs Firm Hansraj Nathuram, ;, relied on. Director of Public Works and Anr. vs Ho Po Sang and Ors., ; and Abbott vs Minister of Lands,, referred to. In the instant case the period of limitation for lodging the claim under the old as well as the new Act was the same viz., six months which expired three weeks after coming into force of the new Act. It was open to the appel lant to file his claim within this period or even later by 22.7.1989 with a prayer to condone the delay. His right to claim compensation was not affected at all by the substitu tion of one Act with another. Since the period of limitation remained the same there was no question of the appellant being taken by surprise. So far the question of condonation of six months delay was concerned, there was no charge in the position under the new Act. The right or privilege to claim benefit of a provision for condonation of delay can be governed only by the law in force at the time of delay. Even the hope or expectation of getting the benefit of an enact ment presupposes applicability of the enactment when the need arises to take its benefit. The occasion to take the benefit of the provision for condonation of delay in filing the claim arose only after repeal of the old law. Obviously the ground for condonation set up as 'sufficient cause ' also relates to the time after the repeal. The 914 benefit of the repealed law could not, therefore, be avail able simply because the cause of action for the claim arose before repeal. 'Sufficient cause ' as a ground of condonation of delay in filing the claim is distinct from `cause of action ' for the claim itself. The question of condonation of delay must, therefore, be governed by the new law. [919F H; A C 920A] 5. Clause (e) of Section 6 of is also not attracted because, by the enactment of the new law, viz., the remedy of the appellant has not been affected at all. Appellant 's right to claim compensation by filing the claim within the same period of limitation has been preserved. And there was no application for condonation of delay in a proceeding pending at the time of repeal so as to allow him to claim any privilege avail able under the old Act. [916C]
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What is the summary of this judgment?
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In Isha Valimohammad & Anr. vs Haji Gulam Mohammad & Haji Dada Trust, [1975] 1 SCR 720 the respondents let out the premises in question to the appellants in 1951 in a place where, by the Saurashtra Rent Control Act, sub letting by a tenant was prohibited. The appellants sub let the premises at a time when the Act was in force. In 1963 the Act was repealed and the Bombay Rent Act was made applica ble, under which there was no such prohibition against sub letting. In a suit for eviction filed subsequently the High Court assumed that a notice under the Transfer of Property Act was necessary to terminate the tenancy which had not been done before the repeal, but still held that since the respondents had an accrued right within the meaning of section 51 of the Bombay Rent Act (the provisions whereof were similar to those in section 6 of the ) the respondents were entitled to a decree. The decree was confirmed by the Supreme Court but not on the above ground.
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The appellant was injured in a road accident on 22.1.1989, and a claim petition was filed belatedly on 15.3.1990 with a prayer for condonation of delay, before the Claims Tribunal. Meanwhile, the was repealed and the came into force with effect from 1.7.1989. The Claims Tribunal held that in view of the provisions of sub section (3) of Section 166 of the new Act, the delay of more than six months could not be condoned, and dismissed the claim. Before the High Court the appellant challenged the Tribunal 's decision, but was not successful. Thereafter, he preferred this appeal by special leave. On behalf of the appellant, it was contended that since the accident took place when the old Act was in force, the proceeding before the Accident Claims Tribunal must be held to be governed by the old Act under which the appellant had a right to file a claim petition even more than six months after the expiry of the period of limitation and this right is preserved by reason of the provisions of Section 6 of the ; and that his claim could not have been rejected on the ground of limitation under the new Act. Dismissing the appeal, this Court, HELD: 1. 'The High Court was right in taking the view that the case was covered by the new Act, and delay for a longer period than six months could not be condoned. [920D] 2. The claim to compensation which the appellant was entitled to, by reason of the accident was certainly en forceable as a right. So far the 913 period of limitation for commencing a legal proceeding is concerned, it is adjectival in nature, and has to be gov erned by the new Act subject to two conditions. If under the repealing Act the remedy suddenly stands barred as a result of a shorter period of limitation, the same cannot be held to govern the case, otherwise the result will be to deprive the suitor of an accrued right. The second exception is where the new enactment leaves the claimant with such a short period for commencing the legal proceeding so as to make it impractical for him to avail of the remedy. [916F G] New India Insurance Co. Ltd. vs Smt. Shanti Misra, ;, relied on. There is a vital difference between an application claiming compensation and a prayer to condone the delay in filing such an application. Liberty to apply for a right is not in itself an accrued right or privilege. [917E] Isha Valimohammad & Anr. vs Haji Gulam Mohammad & Haji Dada Dust, [1975] 1 SCR 720 and Lalji Raja and Sons vs Firm Hansraj Nathuram, ;, relied on. Director of Public Works and Anr. vs Ho Po Sang and Ors., ; and Abbott vs Minister of Lands,, referred to. In the instant case the period of limitation for lodging the claim under the old as well as the new Act was the same viz., six months which expired three weeks after coming into force of the new Act. It was open to the appel lant to file his claim within this period or even later by 22.7.1989 with a prayer to condone the delay. His right to claim compensation was not affected at all by the substitu tion of one Act with another. Since the period of limitation remained the same there was no question of the appellant being taken by surprise. So far the question of condonation of six months delay was concerned, there was no charge in the position under the new Act. The right or privilege to claim benefit of a provision for condonation of delay can be governed only by the law in force at the time of delay. Even the hope or expectation of getting the benefit of an enact ment presupposes applicability of the enactment when the need arises to take its benefit. The occasion to take the benefit of the provision for condonation of delay in filing the claim arose only after repeal of the old law. Obviously the ground for condonation set up as 'sufficient cause ' also relates to the time after the repeal. The 914 benefit of the repealed law could not, therefore, be avail able simply because the cause of action for the claim arose before repeal. 'Sufficient cause ' as a ground of condonation of delay in filing the claim is distinct from `cause of action ' for the claim itself. The question of condonation of delay must, therefore, be governed by the new law. [919F H; A C 920A] 5. Clause (e) of Section 6 of is also not attracted because, by the enactment of the new law, viz., the remedy of the appellant has not been affected at all. Appellant 's right to claim compensation by filing the claim within the same period of limitation has been preserved. And there was no application for condonation of delay in a proceeding pending at the time of repeal so as to allow him to claim any privilege avail able under the old Act. [916C]
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What is the summary of this judgment?
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This Court held that a notice under the Transfer of Properties Act was not necessary and in that view it con firmed the decree of the High Court. With respect to the finding of the High Court regarding the respondents acquir ing an accrued right even on the assumption that a notice under the Transfer of Properties Act was necessary, it was held that the right of a landlord to recover possession is not an accrued right before the issue of a notice if under any law it was necessary for the landlord to issue the notice to determine the tenancy. The principle laid down there supports our view. 919 A question, though not identical, but somewhat similar Came up for consideration by this Court in Lalji Raja and Sons vs Firm Hansraj Nathuram, ; The appel lants had obtained a money decree against the respondents in a court in West Bengal in 1949, and got it transferred for execution to the court at Morena in the then State of Madhya Bharat. On the respondents objection on the ground of lack of jurisdiction the Madhya Bharat Court dismissed the execu tion petition. The matter was thereafter taken to the High Court and this Court, but without any success.
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The appellant was injured in a road accident on 22.1.1989, and a claim petition was filed belatedly on 15.3.1990 with a prayer for condonation of delay, before the Claims Tribunal. Meanwhile, the was repealed and the came into force with effect from 1.7.1989. The Claims Tribunal held that in view of the provisions of sub section (3) of Section 166 of the new Act, the delay of more than six months could not be condoned, and dismissed the claim. Before the High Court the appellant challenged the Tribunal 's decision, but was not successful. Thereafter, he preferred this appeal by special leave. On behalf of the appellant, it was contended that since the accident took place when the old Act was in force, the proceeding before the Accident Claims Tribunal must be held to be governed by the old Act under which the appellant had a right to file a claim petition even more than six months after the expiry of the period of limitation and this right is preserved by reason of the provisions of Section 6 of the ; and that his claim could not have been rejected on the ground of limitation under the new Act. Dismissing the appeal, this Court, HELD: 1. 'The High Court was right in taking the view that the case was covered by the new Act, and delay for a longer period than six months could not be condoned. [920D] 2. The claim to compensation which the appellant was entitled to, by reason of the accident was certainly en forceable as a right. So far the 913 period of limitation for commencing a legal proceeding is concerned, it is adjectival in nature, and has to be gov erned by the new Act subject to two conditions. If under the repealing Act the remedy suddenly stands barred as a result of a shorter period of limitation, the same cannot be held to govern the case, otherwise the result will be to deprive the suitor of an accrued right. The second exception is where the new enactment leaves the claimant with such a short period for commencing the legal proceeding so as to make it impractical for him to avail of the remedy. [916F G] New India Insurance Co. Ltd. vs Smt. Shanti Misra, ;, relied on. There is a vital difference between an application claiming compensation and a prayer to condone the delay in filing such an application. Liberty to apply for a right is not in itself an accrued right or privilege. [917E] Isha Valimohammad & Anr. vs Haji Gulam Mohammad & Haji Dada Dust, [1975] 1 SCR 720 and Lalji Raja and Sons vs Firm Hansraj Nathuram, ;, relied on. Director of Public Works and Anr. vs Ho Po Sang and Ors., ; and Abbott vs Minister of Lands,, referred to. In the instant case the period of limitation for lodging the claim under the old as well as the new Act was the same viz., six months which expired three weeks after coming into force of the new Act. It was open to the appel lant to file his claim within this period or even later by 22.7.1989 with a prayer to condone the delay. His right to claim compensation was not affected at all by the substitu tion of one Act with another. Since the period of limitation remained the same there was no question of the appellant being taken by surprise. So far the question of condonation of six months delay was concerned, there was no charge in the position under the new Act. The right or privilege to claim benefit of a provision for condonation of delay can be governed only by the law in force at the time of delay. Even the hope or expectation of getting the benefit of an enact ment presupposes applicability of the enactment when the need arises to take its benefit. The occasion to take the benefit of the provision for condonation of delay in filing the claim arose only after repeal of the old law. Obviously the ground for condonation set up as 'sufficient cause ' also relates to the time after the repeal. The 914 benefit of the repealed law could not, therefore, be avail able simply because the cause of action for the claim arose before repeal. 'Sufficient cause ' as a ground of condonation of delay in filing the claim is distinct from `cause of action ' for the claim itself. The question of condonation of delay must, therefore, be governed by the new law. [919F H; A C 920A] 5. Clause (e) of Section 6 of is also not attracted because, by the enactment of the new law, viz., the remedy of the appellant has not been affected at all. Appellant 's right to claim compensation by filing the claim within the same period of limitation has been preserved. And there was no application for condonation of delay in a proceeding pending at the time of repeal so as to allow him to claim any privilege avail able under the old Act. [916C]
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What is the summary of this judgment?
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The decision partly rested on the ground that the Indian Code of Civil Procedure was not applicable to the State of Madhya Bharat. Subsequently the Code was extended tO that area which had become a part of the State of Madhya Pradesh and a fresh order was passed by the West Bengal Court transferring the decree to Morena Court. The judgment debtors challenged the jurisdiction of the court on various grounds. One of the points which was urged was that in view of section 20 clause (b) of the Code of Civil Procedure (amendment) Act, 1951 by which the Code was extended to Madhya Bharat and other areas, the Judgment debtors ' right to resist the execution was protected. Reliance was placed on the proviso to the repeal clause in the section which declared that the repeal would not affect any fight, privilege, obligation or liabil ity acquired accrued or incurred under the repealed clause. The judgment debtors objection was over ruled by this Court.
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The appellant was injured in a road accident on 22.1.1989, and a claim petition was filed belatedly on 15.3.1990 with a prayer for condonation of delay, before the Claims Tribunal. Meanwhile, the was repealed and the came into force with effect from 1.7.1989. The Claims Tribunal held that in view of the provisions of sub section (3) of Section 166 of the new Act, the delay of more than six months could not be condoned, and dismissed the claim. Before the High Court the appellant challenged the Tribunal 's decision, but was not successful. Thereafter, he preferred this appeal by special leave. On behalf of the appellant, it was contended that since the accident took place when the old Act was in force, the proceeding before the Accident Claims Tribunal must be held to be governed by the old Act under which the appellant had a right to file a claim petition even more than six months after the expiry of the period of limitation and this right is preserved by reason of the provisions of Section 6 of the ; and that his claim could not have been rejected on the ground of limitation under the new Act. Dismissing the appeal, this Court, HELD: 1. 'The High Court was right in taking the view that the case was covered by the new Act, and delay for a longer period than six months could not be condoned. [920D] 2. The claim to compensation which the appellant was entitled to, by reason of the accident was certainly en forceable as a right. So far the 913 period of limitation for commencing a legal proceeding is concerned, it is adjectival in nature, and has to be gov erned by the new Act subject to two conditions. If under the repealing Act the remedy suddenly stands barred as a result of a shorter period of limitation, the same cannot be held to govern the case, otherwise the result will be to deprive the suitor of an accrued right. The second exception is where the new enactment leaves the claimant with such a short period for commencing the legal proceeding so as to make it impractical for him to avail of the remedy. [916F G] New India Insurance Co. Ltd. vs Smt. Shanti Misra, ;, relied on. There is a vital difference between an application claiming compensation and a prayer to condone the delay in filing such an application. Liberty to apply for a right is not in itself an accrued right or privilege. [917E] Isha Valimohammad & Anr. vs Haji Gulam Mohammad & Haji Dada Dust, [1975] 1 SCR 720 and Lalji Raja and Sons vs Firm Hansraj Nathuram, ;, relied on. Director of Public Works and Anr. vs Ho Po Sang and Ors., ; and Abbott vs Minister of Lands,, referred to. In the instant case the period of limitation for lodging the claim under the old as well as the new Act was the same viz., six months which expired three weeks after coming into force of the new Act. It was open to the appel lant to file his claim within this period or even later by 22.7.1989 with a prayer to condone the delay. His right to claim compensation was not affected at all by the substitu tion of one Act with another. Since the period of limitation remained the same there was no question of the appellant being taken by surprise. So far the question of condonation of six months delay was concerned, there was no charge in the position under the new Act. The right or privilege to claim benefit of a provision for condonation of delay can be governed only by the law in force at the time of delay. Even the hope or expectation of getting the benefit of an enact ment presupposes applicability of the enactment when the need arises to take its benefit. The occasion to take the benefit of the provision for condonation of delay in filing the claim arose only after repeal of the old law. Obviously the ground for condonation set up as 'sufficient cause ' also relates to the time after the repeal. The 914 benefit of the repealed law could not, therefore, be avail able simply because the cause of action for the claim arose before repeal. 'Sufficient cause ' as a ground of condonation of delay in filing the claim is distinct from `cause of action ' for the claim itself. The question of condonation of delay must, therefore, be governed by the new law. [919F H; A C 920A] 5. Clause (e) of Section 6 of is also not attracted because, by the enactment of the new law, viz., the remedy of the appellant has not been affected at all. Appellant 's right to claim compensation by filing the claim within the same period of limitation has been preserved. And there was no application for condonation of delay in a proceeding pending at the time of repeal so as to allow him to claim any privilege avail able under the old Act. [916C]
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What is the summary of this judgment?
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Relying on several English decisions including that in Abbott vs Minister for Lands,, it was observed that the mere right existing at the date of the repeal of statute, to take advantage of provisions of the statute repealed is not a "right accrued" within the meaning of the usual saving clause. In the case before us the period of limitation for lodging the claim under the old as well as the new Act was same six months which expired three weeks after coming in force of the new Act. It was open to the appellant to file his claim within this period or even later by 22.7.1989 with a prayer to condone the delay. His right to claim cOmpensa tion was not affected at all by the substitution of one Act with another. Since the period of limitation remained the same there was no question of the appellant being taken by surprise. So far the question of condonation of six months delay was concerned, there was no change in the position under the new Act.
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The appellant was injured in a road accident on 22.1.1989, and a claim petition was filed belatedly on 15.3.1990 with a prayer for condonation of delay, before the Claims Tribunal. Meanwhile, the was repealed and the came into force with effect from 1.7.1989. The Claims Tribunal held that in view of the provisions of sub section (3) of Section 166 of the new Act, the delay of more than six months could not be condoned, and dismissed the claim. Before the High Court the appellant challenged the Tribunal 's decision, but was not successful. Thereafter, he preferred this appeal by special leave. On behalf of the appellant, it was contended that since the accident took place when the old Act was in force, the proceeding before the Accident Claims Tribunal must be held to be governed by the old Act under which the appellant had a right to file a claim petition even more than six months after the expiry of the period of limitation and this right is preserved by reason of the provisions of Section 6 of the ; and that his claim could not have been rejected on the ground of limitation under the new Act. Dismissing the appeal, this Court, HELD: 1. 'The High Court was right in taking the view that the case was covered by the new Act, and delay for a longer period than six months could not be condoned. [920D] 2. The claim to compensation which the appellant was entitled to, by reason of the accident was certainly en forceable as a right. So far the 913 period of limitation for commencing a legal proceeding is concerned, it is adjectival in nature, and has to be gov erned by the new Act subject to two conditions. If under the repealing Act the remedy suddenly stands barred as a result of a shorter period of limitation, the same cannot be held to govern the case, otherwise the result will be to deprive the suitor of an accrued right. The second exception is where the new enactment leaves the claimant with such a short period for commencing the legal proceeding so as to make it impractical for him to avail of the remedy. [916F G] New India Insurance Co. Ltd. vs Smt. Shanti Misra, ;, relied on. There is a vital difference between an application claiming compensation and a prayer to condone the delay in filing such an application. Liberty to apply for a right is not in itself an accrued right or privilege. [917E] Isha Valimohammad & Anr. vs Haji Gulam Mohammad & Haji Dada Dust, [1975] 1 SCR 720 and Lalji Raja and Sons vs Firm Hansraj Nathuram, ;, relied on. Director of Public Works and Anr. vs Ho Po Sang and Ors., ; and Abbott vs Minister of Lands,, referred to. In the instant case the period of limitation for lodging the claim under the old as well as the new Act was the same viz., six months which expired three weeks after coming into force of the new Act. It was open to the appel lant to file his claim within this period or even later by 22.7.1989 with a prayer to condone the delay. His right to claim compensation was not affected at all by the substitu tion of one Act with another. Since the period of limitation remained the same there was no question of the appellant being taken by surprise. So far the question of condonation of six months delay was concerned, there was no charge in the position under the new Act. The right or privilege to claim benefit of a provision for condonation of delay can be governed only by the law in force at the time of delay. Even the hope or expectation of getting the benefit of an enact ment presupposes applicability of the enactment when the need arises to take its benefit. The occasion to take the benefit of the provision for condonation of delay in filing the claim arose only after repeal of the old law. Obviously the ground for condonation set up as 'sufficient cause ' also relates to the time after the repeal. The 914 benefit of the repealed law could not, therefore, be avail able simply because the cause of action for the claim arose before repeal. 'Sufficient cause ' as a ground of condonation of delay in filing the claim is distinct from `cause of action ' for the claim itself. The question of condonation of delay must, therefore, be governed by the new law. [919F H; A C 920A] 5. Clause (e) of Section 6 of is also not attracted because, by the enactment of the new law, viz., the remedy of the appellant has not been affected at all. Appellant 's right to claim compensation by filing the claim within the same period of limitation has been preserved. And there was no application for condonation of delay in a proceeding pending at the time of repeal so as to allow him to claim any privilege avail able under the old Act. [916C]
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What is the summary of this judgment?
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In this background the appellant 's fur ther default has to be considered. If in a given case the accident had taken place more than a year before the new Act coming in force and the claimant had actually filed his petition while the old Act was in force but after a period of one year, the position could be different. Having actual ly initiated the proceeding when the old Act 920 covered the field a claimant could say that his right which had accrued on filing of the petition could not be taken away. The present case is different. The right or privilege to claim benefit of a provision for condonation of delay can be governed only by the law in force at the time of delay. Even the hope or expectation of getting the benefit of an enactment presupposes applicability of the enactment when the need arises to take its benefit.
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The appellant was injured in a road accident on 22.1.1989, and a claim petition was filed belatedly on 15.3.1990 with a prayer for condonation of delay, before the Claims Tribunal. Meanwhile, the was repealed and the came into force with effect from 1.7.1989. The Claims Tribunal held that in view of the provisions of sub section (3) of Section 166 of the new Act, the delay of more than six months could not be condoned, and dismissed the claim. Before the High Court the appellant challenged the Tribunal 's decision, but was not successful. Thereafter, he preferred this appeal by special leave. On behalf of the appellant, it was contended that since the accident took place when the old Act was in force, the proceeding before the Accident Claims Tribunal must be held to be governed by the old Act under which the appellant had a right to file a claim petition even more than six months after the expiry of the period of limitation and this right is preserved by reason of the provisions of Section 6 of the ; and that his claim could not have been rejected on the ground of limitation under the new Act. Dismissing the appeal, this Court, HELD: 1. 'The High Court was right in taking the view that the case was covered by the new Act, and delay for a longer period than six months could not be condoned. [920D] 2. The claim to compensation which the appellant was entitled to, by reason of the accident was certainly en forceable as a right. So far the 913 period of limitation for commencing a legal proceeding is concerned, it is adjectival in nature, and has to be gov erned by the new Act subject to two conditions. If under the repealing Act the remedy suddenly stands barred as a result of a shorter period of limitation, the same cannot be held to govern the case, otherwise the result will be to deprive the suitor of an accrued right. The second exception is where the new enactment leaves the claimant with such a short period for commencing the legal proceeding so as to make it impractical for him to avail of the remedy. [916F G] New India Insurance Co. Ltd. vs Smt. Shanti Misra, ;, relied on. There is a vital difference between an application claiming compensation and a prayer to condone the delay in filing such an application. Liberty to apply for a right is not in itself an accrued right or privilege. [917E] Isha Valimohammad & Anr. vs Haji Gulam Mohammad & Haji Dada Dust, [1975] 1 SCR 720 and Lalji Raja and Sons vs Firm Hansraj Nathuram, ;, relied on. Director of Public Works and Anr. vs Ho Po Sang and Ors., ; and Abbott vs Minister of Lands,, referred to. In the instant case the period of limitation for lodging the claim under the old as well as the new Act was the same viz., six months which expired three weeks after coming into force of the new Act. It was open to the appel lant to file his claim within this period or even later by 22.7.1989 with a prayer to condone the delay. His right to claim compensation was not affected at all by the substitu tion of one Act with another. Since the period of limitation remained the same there was no question of the appellant being taken by surprise. So far the question of condonation of six months delay was concerned, there was no charge in the position under the new Act. The right or privilege to claim benefit of a provision for condonation of delay can be governed only by the law in force at the time of delay. Even the hope or expectation of getting the benefit of an enact ment presupposes applicability of the enactment when the need arises to take its benefit. The occasion to take the benefit of the provision for condonation of delay in filing the claim arose only after repeal of the old law. Obviously the ground for condonation set up as 'sufficient cause ' also relates to the time after the repeal. The 914 benefit of the repealed law could not, therefore, be avail able simply because the cause of action for the claim arose before repeal. 'Sufficient cause ' as a ground of condonation of delay in filing the claim is distinct from `cause of action ' for the claim itself. The question of condonation of delay must, therefore, be governed by the new law. [919F H; A C 920A] 5. Clause (e) of Section 6 of is also not attracted because, by the enactment of the new law, viz., the remedy of the appellant has not been affected at all. Appellant 's right to claim compensation by filing the claim within the same period of limitation has been preserved. And there was no application for condonation of delay in a proceeding pending at the time of repeal so as to allow him to claim any privilege avail able under the old Act. [916C]
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What is the summary of this judgment?
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In the present case the occasion to take the benefit of the provision for condona tion of delay in filing the claim arose only after repeal of the old law. Obviously the ground for condonation set up as 'sufficient cause ' also relates to the time after the re peal. The benefit of the repealed law could not, therefore, be available simply because the cause of action for the claim arose before repeal. 'Sufficient cause ' as a ground of condonation of delay in filing the claim is distinct from 'cause of action ' for the claim itself. The question of condonation of delay must, therefore, be governed by the new law. We accordingly hold that the High Court was right in its view that the case was covered by the new Act, and delay for a longer period than six months could not be condoned.
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The appellant was injured in a road accident on 22.1.1989, and a claim petition was filed belatedly on 15.3.1990 with a prayer for condonation of delay, before the Claims Tribunal. Meanwhile, the was repealed and the came into force with effect from 1.7.1989. The Claims Tribunal held that in view of the provisions of sub section (3) of Section 166 of the new Act, the delay of more than six months could not be condoned, and dismissed the claim. Before the High Court the appellant challenged the Tribunal 's decision, but was not successful. Thereafter, he preferred this appeal by special leave. On behalf of the appellant, it was contended that since the accident took place when the old Act was in force, the proceeding before the Accident Claims Tribunal must be held to be governed by the old Act under which the appellant had a right to file a claim petition even more than six months after the expiry of the period of limitation and this right is preserved by reason of the provisions of Section 6 of the ; and that his claim could not have been rejected on the ground of limitation under the new Act. Dismissing the appeal, this Court, HELD: 1. 'The High Court was right in taking the view that the case was covered by the new Act, and delay for a longer period than six months could not be condoned. [920D] 2. The claim to compensation which the appellant was entitled to, by reason of the accident was certainly en forceable as a right. So far the 913 period of limitation for commencing a legal proceeding is concerned, it is adjectival in nature, and has to be gov erned by the new Act subject to two conditions. If under the repealing Act the remedy suddenly stands barred as a result of a shorter period of limitation, the same cannot be held to govern the case, otherwise the result will be to deprive the suitor of an accrued right. The second exception is where the new enactment leaves the claimant with such a short period for commencing the legal proceeding so as to make it impractical for him to avail of the remedy. [916F G] New India Insurance Co. Ltd. vs Smt. Shanti Misra, ;, relied on. There is a vital difference between an application claiming compensation and a prayer to condone the delay in filing such an application. Liberty to apply for a right is not in itself an accrued right or privilege. [917E] Isha Valimohammad & Anr. vs Haji Gulam Mohammad & Haji Dada Dust, [1975] 1 SCR 720 and Lalji Raja and Sons vs Firm Hansraj Nathuram, ;, relied on. Director of Public Works and Anr. vs Ho Po Sang and Ors., ; and Abbott vs Minister of Lands,, referred to. In the instant case the period of limitation for lodging the claim under the old as well as the new Act was the same viz., six months which expired three weeks after coming into force of the new Act. It was open to the appel lant to file his claim within this period or even later by 22.7.1989 with a prayer to condone the delay. His right to claim compensation was not affected at all by the substitu tion of one Act with another. Since the period of limitation remained the same there was no question of the appellant being taken by surprise. So far the question of condonation of six months delay was concerned, there was no charge in the position under the new Act. The right or privilege to claim benefit of a provision for condonation of delay can be governed only by the law in force at the time of delay. Even the hope or expectation of getting the benefit of an enact ment presupposes applicability of the enactment when the need arises to take its benefit. The occasion to take the benefit of the provision for condonation of delay in filing the claim arose only after repeal of the old law. Obviously the ground for condonation set up as 'sufficient cause ' also relates to the time after the repeal. The 914 benefit of the repealed law could not, therefore, be avail able simply because the cause of action for the claim arose before repeal. 'Sufficient cause ' as a ground of condonation of delay in filing the claim is distinct from `cause of action ' for the claim itself. The question of condonation of delay must, therefore, be governed by the new law. [919F H; A C 920A] 5. Clause (e) of Section 6 of is also not attracted because, by the enactment of the new law, viz., the remedy of the appellant has not been affected at all. Appellant 's right to claim compensation by filing the claim within the same period of limitation has been preserved. And there was no application for condonation of delay in a proceeding pending at the time of repeal so as to allow him to claim any privilege avail able under the old Act. [916C]
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What is the summary of this judgment?
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The appeal is dismissed, but in the circumstances, without costs. G.N. Appeal dis missed.
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The appellant was injured in a road accident on 22.1.1989, and a claim petition was filed belatedly on 15.3.1990 with a prayer for condonation of delay, before the Claims Tribunal. Meanwhile, the was repealed and the came into force with effect from 1.7.1989. The Claims Tribunal held that in view of the provisions of sub section (3) of Section 166 of the new Act, the delay of more than six months could not be condoned, and dismissed the claim. Before the High Court the appellant challenged the Tribunal 's decision, but was not successful. Thereafter, he preferred this appeal by special leave. On behalf of the appellant, it was contended that since the accident took place when the old Act was in force, the proceeding before the Accident Claims Tribunal must be held to be governed by the old Act under which the appellant had a right to file a claim petition even more than six months after the expiry of the period of limitation and this right is preserved by reason of the provisions of Section 6 of the ; and that his claim could not have been rejected on the ground of limitation under the new Act. Dismissing the appeal, this Court, HELD: 1. 'The High Court was right in taking the view that the case was covered by the new Act, and delay for a longer period than six months could not be condoned. [920D] 2. The claim to compensation which the appellant was entitled to, by reason of the accident was certainly en forceable as a right. So far the 913 period of limitation for commencing a legal proceeding is concerned, it is adjectival in nature, and has to be gov erned by the new Act subject to two conditions. If under the repealing Act the remedy suddenly stands barred as a result of a shorter period of limitation, the same cannot be held to govern the case, otherwise the result will be to deprive the suitor of an accrued right. The second exception is where the new enactment leaves the claimant with such a short period for commencing the legal proceeding so as to make it impractical for him to avail of the remedy. [916F G] New India Insurance Co. Ltd. vs Smt. Shanti Misra, ;, relied on. There is a vital difference between an application claiming compensation and a prayer to condone the delay in filing such an application. Liberty to apply for a right is not in itself an accrued right or privilege. [917E] Isha Valimohammad & Anr. vs Haji Gulam Mohammad & Haji Dada Dust, [1975] 1 SCR 720 and Lalji Raja and Sons vs Firm Hansraj Nathuram, ;, relied on. Director of Public Works and Anr. vs Ho Po Sang and Ors., ; and Abbott vs Minister of Lands,, referred to. In the instant case the period of limitation for lodging the claim under the old as well as the new Act was the same viz., six months which expired three weeks after coming into force of the new Act. It was open to the appel lant to file his claim within this period or even later by 22.7.1989 with a prayer to condone the delay. His right to claim compensation was not affected at all by the substitu tion of one Act with another. Since the period of limitation remained the same there was no question of the appellant being taken by surprise. So far the question of condonation of six months delay was concerned, there was no charge in the position under the new Act. The right or privilege to claim benefit of a provision for condonation of delay can be governed only by the law in force at the time of delay. Even the hope or expectation of getting the benefit of an enact ment presupposes applicability of the enactment when the need arises to take its benefit. The occasion to take the benefit of the provision for condonation of delay in filing the claim arose only after repeal of the old law. Obviously the ground for condonation set up as 'sufficient cause ' also relates to the time after the repeal. The 914 benefit of the repealed law could not, therefore, be avail able simply because the cause of action for the claim arose before repeal. 'Sufficient cause ' as a ground of condonation of delay in filing the claim is distinct from `cause of action ' for the claim itself. The question of condonation of delay must, therefore, be governed by the new law. [919F H; A C 920A] 5. Clause (e) of Section 6 of is also not attracted because, by the enactment of the new law, viz., the remedy of the appellant has not been affected at all. Appellant 's right to claim compensation by filing the claim within the same period of limitation has been preserved. And there was no application for condonation of delay in a proceeding pending at the time of repeal so as to allow him to claim any privilege avail able under the old Act. [916C]
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What is the summary of this judgment?
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Civil Appeal No. 3189/1989. From the Judgment and Order dated 11.3.1987 of the Delhi High Court in C.W.P. No. 875 of 1986 R.B. Datar and Ranjit Kumar for the Appellant.
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Some persons were plying their business by squatting on pavement in front of a hospital in Delhi and had put up stalls or kiosk allegedly on Tehbazari under a licence under section 321 of the Delhi Municipal Corporation Act, 1957. The Delhi Municipal Corporation tried to remove them by demolishing their stalls etc. These persons filed suits in the Court of Subordinate Judge praying for perpetual injunction restraining the Corporation from interfering with their business and/or removing or demolishing any temporary structures put up by them for plying their trade. The Subordinate Judge disallowed the plaintiffs ' main claim seeking a declaration that the Municipal Corporation had no right or authority to remove the stalls built up by them. He however held that by virtue of the Tehbazari licence granted in their favour the plaintiffs had acquired the right to occupy and carry on business at the suit sites till their licence was not terminated by the Corporation according to the procedure laid down in proviso (a)(ii) of Sub Section of Section 430 of the Act. Two of the squatters namely Jamuna Das and his brother filed writ petitions in this Court seeking a writ of mandamus ordaining the Municipal Corporation to allot each of them a suitable site on pavement in front of the main gate of the hospital. (Jamna Das & Anr. vs PG NO 929 PG NO 930 Delhi Administration & Ors., Writ Petition Nos. 981 982 of 1984.) This Court directed that the petitioners be rehabilitated by the Municipal Corporation by construction of stalls according to the sketch plan filed by the Corporation with a further direction that each of them would be put in possession of one of the stalls. The Court made it clear that this was a consent order and that the direction should not be treated as a precedent. The respondent, who was one of the plaintiffs who had filed suits in the court of Subordinate Judge, moved the High Court under Article 226 of the Constitution for a writ and direction restraining the Corporation from evicting her without the due process of law. The High Court partly allowed the writ petition holding that the judgment of the Learned Subordinate Judge which was a judgment inter partes had become final not having been appealed from and therefore the respondent could not be removed from pitching her stall on the pavement outside the hospital where she was squatting. Relying on the decision of this Court in Jamuna Das ' case the High Court gave an option to the Corporation either to construct the stall similar to the one they have constructed in compliance with the direction made by this Court in Jamuna Das ' case or in the alternative furnish to the respondent a plan of the stall with requisite permission so that she could build her own stall accordingly. Feeling aggrieved by this Judgment of the High Court, the Municipal Corporation filed this appeal by special leave. Allowing the appeal this Court, HELD: The Learned Judges of the High Court failed to appreciate that this Court in Jamna Das ' case made a direction with the consent of parties and with the reservation that it should not be treated as a precedent. It expressed no opinion on the question whether there was any statutory obligation cast on the Municipal Corporation to provide alternative site to a person making illegal encroachment on a public place like any public street etc. contrary to Section 320 of the Act as a condition precedent to the exercise of its powers under section 322 of the Act for the removal of such encroachment on any public street, footpath or pavement. That apart, the High Court could not have made the impugned direction contrary to the provisions contained in sections 320 and 322 of the Act. [937A C It is axiomatic that when a direction or order is made by consent of the parties, the Court does not adjudicate upon the rights of the parties nor lay down any principle. Quotability as 'law ' applies to the principle of a case, its ratio decidendi. The only thing in a Judge 's decision PG NO 931 binding as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. The task of finding the principle is fraught with difficulty because without an investigation into the facts, as in the present case, it could not be assumed whether a similar direction must or ought to be made as a measure of social justice. That being so, the direction made by this Court in Jamna Das ' case could not be treated to be a precedent. The High Court failed to realise that the direction in Jamna Das ' case was made not only with the consent of the parties but there was an interplay of various factors and the Court was moved by compassion to evolve a situation to mitigate hardship which was acceptable by all the parties concerned. [937F H; 938A] Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Das ' case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavements or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. [938F G ] A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. [938G H] Salmond on Jurisprudence by P.J. Fitzgerald, 12th Ed.; Gerard vs Worth of Paris Ltd. (K), and Lancaster Motor Co. (London) Ltd. vs Bremith Ltd.,, referred to. Precedents sub silentio and without argument are of no moment. This rule 'has ever since been followed. One of the chief reasons for the doctrine of precedents is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a Judge, however eminent, can be treated as an ex cathedra statement. having the weight of authority. [939G H] PG NO 932 Olga Tellis & Ors. vs Bombay Municipal Corporation & Ors., ; and Bombay Hawkers ' Union & Ors. vs Bombay Municipal Corporation & Ors., ;, referred to.
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What is the summary of this judgment?
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V.B. Saharya for the D.D.A. Jose P. Verghese and O.P. Verma for the Respondent. The Judgment of the Court was delivered by SEN, J. The main question involved in this appeal from a judgment and order of a Division Bench of the Delhi High Court dated March 11, 1987 is whether the High Court was justified, in the facts and circumstances of the case, in issuing a direction to the appellant Municipal Corporation of Delhi to construct a stall or a kiosk on the pavement near the OPD gate of the Irwin Hospital, Delhi within two months from the date of its order or in the alternative, to furnish a plan with requisite sanction to the respondent Gurnam kaur to enable her to construct a stall of her own.
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Some persons were plying their business by squatting on pavement in front of a hospital in Delhi and had put up stalls or kiosk allegedly on Tehbazari under a licence under section 321 of the Delhi Municipal Corporation Act, 1957. The Delhi Municipal Corporation tried to remove them by demolishing their stalls etc. These persons filed suits in the Court of Subordinate Judge praying for perpetual injunction restraining the Corporation from interfering with their business and/or removing or demolishing any temporary structures put up by them for plying their trade. The Subordinate Judge disallowed the plaintiffs ' main claim seeking a declaration that the Municipal Corporation had no right or authority to remove the stalls built up by them. He however held that by virtue of the Tehbazari licence granted in their favour the plaintiffs had acquired the right to occupy and carry on business at the suit sites till their licence was not terminated by the Corporation according to the procedure laid down in proviso (a)(ii) of Sub Section of Section 430 of the Act. Two of the squatters namely Jamuna Das and his brother filed writ petitions in this Court seeking a writ of mandamus ordaining the Municipal Corporation to allot each of them a suitable site on pavement in front of the main gate of the hospital. (Jamna Das & Anr. vs PG NO 929 PG NO 930 Delhi Administration & Ors., Writ Petition Nos. 981 982 of 1984.) This Court directed that the petitioners be rehabilitated by the Municipal Corporation by construction of stalls according to the sketch plan filed by the Corporation with a further direction that each of them would be put in possession of one of the stalls. The Court made it clear that this was a consent order and that the direction should not be treated as a precedent. The respondent, who was one of the plaintiffs who had filed suits in the court of Subordinate Judge, moved the High Court under Article 226 of the Constitution for a writ and direction restraining the Corporation from evicting her without the due process of law. The High Court partly allowed the writ petition holding that the judgment of the Learned Subordinate Judge which was a judgment inter partes had become final not having been appealed from and therefore the respondent could not be removed from pitching her stall on the pavement outside the hospital where she was squatting. Relying on the decision of this Court in Jamuna Das ' case the High Court gave an option to the Corporation either to construct the stall similar to the one they have constructed in compliance with the direction made by this Court in Jamuna Das ' case or in the alternative furnish to the respondent a plan of the stall with requisite permission so that she could build her own stall accordingly. Feeling aggrieved by this Judgment of the High Court, the Municipal Corporation filed this appeal by special leave. Allowing the appeal this Court, HELD: The Learned Judges of the High Court failed to appreciate that this Court in Jamna Das ' case made a direction with the consent of parties and with the reservation that it should not be treated as a precedent. It expressed no opinion on the question whether there was any statutory obligation cast on the Municipal Corporation to provide alternative site to a person making illegal encroachment on a public place like any public street etc. contrary to Section 320 of the Act as a condition precedent to the exercise of its powers under section 322 of the Act for the removal of such encroachment on any public street, footpath or pavement. That apart, the High Court could not have made the impugned direction contrary to the provisions contained in sections 320 and 322 of the Act. [937A C It is axiomatic that when a direction or order is made by consent of the parties, the Court does not adjudicate upon the rights of the parties nor lay down any principle. Quotability as 'law ' applies to the principle of a case, its ratio decidendi. The only thing in a Judge 's decision PG NO 931 binding as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. The task of finding the principle is fraught with difficulty because without an investigation into the facts, as in the present case, it could not be assumed whether a similar direction must or ought to be made as a measure of social justice. That being so, the direction made by this Court in Jamna Das ' case could not be treated to be a precedent. The High Court failed to realise that the direction in Jamna Das ' case was made not only with the consent of the parties but there was an interplay of various factors and the Court was moved by compassion to evolve a situation to mitigate hardship which was acceptable by all the parties concerned. [937F H; 938A] Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Das ' case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavements or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. [938F G ] A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. [938G H] Salmond on Jurisprudence by P.J. Fitzgerald, 12th Ed.; Gerard vs Worth of Paris Ltd. (K), and Lancaster Motor Co. (London) Ltd. vs Bremith Ltd.,, referred to. Precedents sub silentio and without argument are of no moment. This rule 'has ever since been followed. One of the chief reasons for the doctrine of precedents is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a Judge, however eminent, can be treated as an ex cathedra statement. having the weight of authority. [939G H] PG NO 932 Olga Tellis & Ors. vs Bombay Municipal Corporation & Ors., ; and Bombay Hawkers ' Union & Ors. vs Bombay Municipal Corporation & Ors., ;, referred to.
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What is the summary of this judgment?
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The issue involved is as to the precedential value of a direction earlier made by this Court on a petition under article 32 of the Constitution based on consent of the parties with the reservation that it should not be treated as a precedent. It appears that sometime in 1984, the appellant Municipal Corporation of Delhi sought police help to clear the pavement near the OPD gate of the Irwin Hospital, now known as Lok Nayak Jai Prakash Narain Hospital, which is one of the largest hospitals in Northern India, on a complaint made by the Hospital authorities that the pavement hawkers by setting up their stalls or pitching their wares were causing inconvenience to the ingress or egress of the ambulances besides causing congestion on the pavements and obstructing the free flow of traffic. The Municipal Corporation was satisfied that if the squatters continued to cover pathways meant for pedestrians, a time would come when no room would be left for people to walk on the footpaths. In a police action, the pavements hawkers were removed from outside the main gate of the Irwin PG NO 933 Hospital in and around the subway of Jawahar Lal Nehru Marg on January 15, 1984. On February 22, 1984, eight of these pavement squatters instituted separate suits in the Court of the Subordinate Judge, II Class, Delhi against the Municipal Corporation seeking the relief of perpetual injunction restraining the appellant, its officers and servants from interfering with their business of hawking on the pavements out side the main gate of the hospital and/or from demolishing or removing any temporary structures put up by them for plying their trade. In denial of the claim, the appellant Municipal Corporation pleaded, inter alia, (i) that the construction of the kiosks or stalls by the plaintiffs was without permission and therefore amounted to an encroachment on the pavement.
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Some persons were plying their business by squatting on pavement in front of a hospital in Delhi and had put up stalls or kiosk allegedly on Tehbazari under a licence under section 321 of the Delhi Municipal Corporation Act, 1957. The Delhi Municipal Corporation tried to remove them by demolishing their stalls etc. These persons filed suits in the Court of Subordinate Judge praying for perpetual injunction restraining the Corporation from interfering with their business and/or removing or demolishing any temporary structures put up by them for plying their trade. The Subordinate Judge disallowed the plaintiffs ' main claim seeking a declaration that the Municipal Corporation had no right or authority to remove the stalls built up by them. He however held that by virtue of the Tehbazari licence granted in their favour the plaintiffs had acquired the right to occupy and carry on business at the suit sites till their licence was not terminated by the Corporation according to the procedure laid down in proviso (a)(ii) of Sub Section of Section 430 of the Act. Two of the squatters namely Jamuna Das and his brother filed writ petitions in this Court seeking a writ of mandamus ordaining the Municipal Corporation to allot each of them a suitable site on pavement in front of the main gate of the hospital. (Jamna Das & Anr. vs PG NO 929 PG NO 930 Delhi Administration & Ors., Writ Petition Nos. 981 982 of 1984.) This Court directed that the petitioners be rehabilitated by the Municipal Corporation by construction of stalls according to the sketch plan filed by the Corporation with a further direction that each of them would be put in possession of one of the stalls. The Court made it clear that this was a consent order and that the direction should not be treated as a precedent. The respondent, who was one of the plaintiffs who had filed suits in the court of Subordinate Judge, moved the High Court under Article 226 of the Constitution for a writ and direction restraining the Corporation from evicting her without the due process of law. The High Court partly allowed the writ petition holding that the judgment of the Learned Subordinate Judge which was a judgment inter partes had become final not having been appealed from and therefore the respondent could not be removed from pitching her stall on the pavement outside the hospital where she was squatting. Relying on the decision of this Court in Jamuna Das ' case the High Court gave an option to the Corporation either to construct the stall similar to the one they have constructed in compliance with the direction made by this Court in Jamuna Das ' case or in the alternative furnish to the respondent a plan of the stall with requisite permission so that she could build her own stall accordingly. Feeling aggrieved by this Judgment of the High Court, the Municipal Corporation filed this appeal by special leave. Allowing the appeal this Court, HELD: The Learned Judges of the High Court failed to appreciate that this Court in Jamna Das ' case made a direction with the consent of parties and with the reservation that it should not be treated as a precedent. It expressed no opinion on the question whether there was any statutory obligation cast on the Municipal Corporation to provide alternative site to a person making illegal encroachment on a public place like any public street etc. contrary to Section 320 of the Act as a condition precedent to the exercise of its powers under section 322 of the Act for the removal of such encroachment on any public street, footpath or pavement. That apart, the High Court could not have made the impugned direction contrary to the provisions contained in sections 320 and 322 of the Act. [937A C It is axiomatic that when a direction or order is made by consent of the parties, the Court does not adjudicate upon the rights of the parties nor lay down any principle. Quotability as 'law ' applies to the principle of a case, its ratio decidendi. The only thing in a Judge 's decision PG NO 931 binding as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. The task of finding the principle is fraught with difficulty because without an investigation into the facts, as in the present case, it could not be assumed whether a similar direction must or ought to be made as a measure of social justice. That being so, the direction made by this Court in Jamna Das ' case could not be treated to be a precedent. The High Court failed to realise that the direction in Jamna Das ' case was made not only with the consent of the parties but there was an interplay of various factors and the Court was moved by compassion to evolve a situation to mitigate hardship which was acceptable by all the parties concerned. [937F H; 938A] Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Das ' case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavements or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. [938F G ] A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. [938G H] Salmond on Jurisprudence by P.J. Fitzgerald, 12th Ed.; Gerard vs Worth of Paris Ltd. (K), and Lancaster Motor Co. (London) Ltd. vs Bremith Ltd.,, referred to. Precedents sub silentio and without argument are of no moment. This rule 'has ever since been followed. One of the chief reasons for the doctrine of precedents is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a Judge, however eminent, can be treated as an ex cathedra statement. having the weight of authority. [939G H] PG NO 932 Olga Tellis & Ors. vs Bombay Municipal Corporation & Ors., ; and Bombay Hawkers ' Union & Ors. vs Bombay Municipal Corporation & Ors., ;, referred to.
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What is the summary of this judgment?
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The Municipal Corporation accordingly under section 322 of the Delhi Municipal Corporation Act, 1957 had the right and authority to remove such encroachment without notice, and (ii) that the plaintiffs had no legally enforceable right under the terms of the tehbazari licence, they having committed violation of the terms and conditions there of besides being in arrears of licence fee. Accordingly, it pleaded that the plaintiffs ' claim in suit was wholly misconceived. The suits were consolidated together for trial as they raised a common issue. It is common ground that the plaintiffs had each been occupying a site admeasuring 6 ft. x 4 ft. on tehbazari basis since the year 1975. The contention of the plaintiffs was that the Municipal Corporation having itself allotted the plaintiffs licence under section 321 of the Act on tehbazari basis to use the pavement in front of the main gate of the Irwin Hospital for carrying on their business on specific terms and conditions, such grant of licence or permission gave to them a right under section 430 of the Delhi Municipal Corporation Act, 1957 which could not be terminated unilaterally without affording them an opportunity of a hearing under proviso (a) to sub section (3) of section 430 of the Act. On February 24, 1984, Shri B.P.
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Some persons were plying their business by squatting on pavement in front of a hospital in Delhi and had put up stalls or kiosk allegedly on Tehbazari under a licence under section 321 of the Delhi Municipal Corporation Act, 1957. The Delhi Municipal Corporation tried to remove them by demolishing their stalls etc. These persons filed suits in the Court of Subordinate Judge praying for perpetual injunction restraining the Corporation from interfering with their business and/or removing or demolishing any temporary structures put up by them for plying their trade. The Subordinate Judge disallowed the plaintiffs ' main claim seeking a declaration that the Municipal Corporation had no right or authority to remove the stalls built up by them. He however held that by virtue of the Tehbazari licence granted in their favour the plaintiffs had acquired the right to occupy and carry on business at the suit sites till their licence was not terminated by the Corporation according to the procedure laid down in proviso (a)(ii) of Sub Section of Section 430 of the Act. Two of the squatters namely Jamuna Das and his brother filed writ petitions in this Court seeking a writ of mandamus ordaining the Municipal Corporation to allot each of them a suitable site on pavement in front of the main gate of the hospital. (Jamna Das & Anr. vs PG NO 929 PG NO 930 Delhi Administration & Ors., Writ Petition Nos. 981 982 of 1984.) This Court directed that the petitioners be rehabilitated by the Municipal Corporation by construction of stalls according to the sketch plan filed by the Corporation with a further direction that each of them would be put in possession of one of the stalls. The Court made it clear that this was a consent order and that the direction should not be treated as a precedent. The respondent, who was one of the plaintiffs who had filed suits in the court of Subordinate Judge, moved the High Court under Article 226 of the Constitution for a writ and direction restraining the Corporation from evicting her without the due process of law. The High Court partly allowed the writ petition holding that the judgment of the Learned Subordinate Judge which was a judgment inter partes had become final not having been appealed from and therefore the respondent could not be removed from pitching her stall on the pavement outside the hospital where she was squatting. Relying on the decision of this Court in Jamuna Das ' case the High Court gave an option to the Corporation either to construct the stall similar to the one they have constructed in compliance with the direction made by this Court in Jamuna Das ' case or in the alternative furnish to the respondent a plan of the stall with requisite permission so that she could build her own stall accordingly. Feeling aggrieved by this Judgment of the High Court, the Municipal Corporation filed this appeal by special leave. Allowing the appeal this Court, HELD: The Learned Judges of the High Court failed to appreciate that this Court in Jamna Das ' case made a direction with the consent of parties and with the reservation that it should not be treated as a precedent. It expressed no opinion on the question whether there was any statutory obligation cast on the Municipal Corporation to provide alternative site to a person making illegal encroachment on a public place like any public street etc. contrary to Section 320 of the Act as a condition precedent to the exercise of its powers under section 322 of the Act for the removal of such encroachment on any public street, footpath or pavement. That apart, the High Court could not have made the impugned direction contrary to the provisions contained in sections 320 and 322 of the Act. [937A C It is axiomatic that when a direction or order is made by consent of the parties, the Court does not adjudicate upon the rights of the parties nor lay down any principle. Quotability as 'law ' applies to the principle of a case, its ratio decidendi. The only thing in a Judge 's decision PG NO 931 binding as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. The task of finding the principle is fraught with difficulty because without an investigation into the facts, as in the present case, it could not be assumed whether a similar direction must or ought to be made as a measure of social justice. That being so, the direction made by this Court in Jamna Das ' case could not be treated to be a precedent. The High Court failed to realise that the direction in Jamna Das ' case was made not only with the consent of the parties but there was an interplay of various factors and the Court was moved by compassion to evolve a situation to mitigate hardship which was acceptable by all the parties concerned. [937F H; 938A] Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Das ' case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavements or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. [938F G ] A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. [938G H] Salmond on Jurisprudence by P.J. Fitzgerald, 12th Ed.; Gerard vs Worth of Paris Ltd. (K), and Lancaster Motor Co. (London) Ltd. vs Bremith Ltd.,, referred to. Precedents sub silentio and without argument are of no moment. This rule 'has ever since been followed. One of the chief reasons for the doctrine of precedents is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a Judge, however eminent, can be treated as an ex cathedra statement. having the weight of authority. [939G H] PG NO 932 Olga Tellis & Ors. vs Bombay Municipal Corporation & Ors., ; and Bombay Hawkers ' Union & Ors. vs Bombay Municipal Corporation & Ors., ;, referred to.
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What is the summary of this judgment?
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Bhalla, learned counsel appearing for the plaintiffs in all the suits made a statement to the effect: "The plaintiffs shall occupy only 6 ft. x 4 ft. space as allotted to them by the defendants and no further space beyond those limits. They have not constructed any permanent structure on the site and shall not construct any structure thereon, whether permanent or temporary. ' ' Accordingly, the learned Subordinate Judge during the course of his judgmeat observed: PG NO 934 "In view of the above statement by the counsel for plaintiffs, it is clear that the stall if any erected or posted at the suit sites is without authority. Placing of such a stall at the suit site amounts to encroachment within the meaning of sec. 322 of the DMC Act which stall can be removed at any time by the defendant MCD without notice. In this light the plaintiffs have no right to claim an injunction against demolition or removal of any stall or other structure if posted or placed or affat the same time defendant MCD cannot remove the plaintiffs nor interfere with their business at the suit site in any other manner without terminating their licence to occupy the said sites in accordance with the procedure contained in sec.
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Some persons were plying their business by squatting on pavement in front of a hospital in Delhi and had put up stalls or kiosk allegedly on Tehbazari under a licence under section 321 of the Delhi Municipal Corporation Act, 1957. The Delhi Municipal Corporation tried to remove them by demolishing their stalls etc. These persons filed suits in the Court of Subordinate Judge praying for perpetual injunction restraining the Corporation from interfering with their business and/or removing or demolishing any temporary structures put up by them for plying their trade. The Subordinate Judge disallowed the plaintiffs ' main claim seeking a declaration that the Municipal Corporation had no right or authority to remove the stalls built up by them. He however held that by virtue of the Tehbazari licence granted in their favour the plaintiffs had acquired the right to occupy and carry on business at the suit sites till their licence was not terminated by the Corporation according to the procedure laid down in proviso (a)(ii) of Sub Section of Section 430 of the Act. Two of the squatters namely Jamuna Das and his brother filed writ petitions in this Court seeking a writ of mandamus ordaining the Municipal Corporation to allot each of them a suitable site on pavement in front of the main gate of the hospital. (Jamna Das & Anr. vs PG NO 929 PG NO 930 Delhi Administration & Ors., Writ Petition Nos. 981 982 of 1984.) This Court directed that the petitioners be rehabilitated by the Municipal Corporation by construction of stalls according to the sketch plan filed by the Corporation with a further direction that each of them would be put in possession of one of the stalls. The Court made it clear that this was a consent order and that the direction should not be treated as a precedent. The respondent, who was one of the plaintiffs who had filed suits in the court of Subordinate Judge, moved the High Court under Article 226 of the Constitution for a writ and direction restraining the Corporation from evicting her without the due process of law. The High Court partly allowed the writ petition holding that the judgment of the Learned Subordinate Judge which was a judgment inter partes had become final not having been appealed from and therefore the respondent could not be removed from pitching her stall on the pavement outside the hospital where she was squatting. Relying on the decision of this Court in Jamuna Das ' case the High Court gave an option to the Corporation either to construct the stall similar to the one they have constructed in compliance with the direction made by this Court in Jamuna Das ' case or in the alternative furnish to the respondent a plan of the stall with requisite permission so that she could build her own stall accordingly. Feeling aggrieved by this Judgment of the High Court, the Municipal Corporation filed this appeal by special leave. Allowing the appeal this Court, HELD: The Learned Judges of the High Court failed to appreciate that this Court in Jamna Das ' case made a direction with the consent of parties and with the reservation that it should not be treated as a precedent. It expressed no opinion on the question whether there was any statutory obligation cast on the Municipal Corporation to provide alternative site to a person making illegal encroachment on a public place like any public street etc. contrary to Section 320 of the Act as a condition precedent to the exercise of its powers under section 322 of the Act for the removal of such encroachment on any public street, footpath or pavement. That apart, the High Court could not have made the impugned direction contrary to the provisions contained in sections 320 and 322 of the Act. [937A C It is axiomatic that when a direction or order is made by consent of the parties, the Court does not adjudicate upon the rights of the parties nor lay down any principle. Quotability as 'law ' applies to the principle of a case, its ratio decidendi. The only thing in a Judge 's decision PG NO 931 binding as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. The task of finding the principle is fraught with difficulty because without an investigation into the facts, as in the present case, it could not be assumed whether a similar direction must or ought to be made as a measure of social justice. That being so, the direction made by this Court in Jamna Das ' case could not be treated to be a precedent. The High Court failed to realise that the direction in Jamna Das ' case was made not only with the consent of the parties but there was an interplay of various factors and the Court was moved by compassion to evolve a situation to mitigate hardship which was acceptable by all the parties concerned. [937F H; 938A] Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Das ' case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavements or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. [938F G ] A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. [938G H] Salmond on Jurisprudence by P.J. Fitzgerald, 12th Ed.; Gerard vs Worth of Paris Ltd. (K), and Lancaster Motor Co. (London) Ltd. vs Bremith Ltd.,, referred to. Precedents sub silentio and without argument are of no moment. This rule 'has ever since been followed. One of the chief reasons for the doctrine of precedents is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a Judge, however eminent, can be treated as an ex cathedra statement. having the weight of authority. [939G H] PG NO 932 Olga Tellis & Ors. vs Bombay Municipal Corporation & Ors., ; and Bombay Hawkers ' Union & Ors. vs Bombay Municipal Corporation & Ors., ;, referred to.
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What is the summary of this judgment?
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430(3) of DMC Act. " The learned Judge accordingly partly decreed the plaintiff 's claim to the extent indicated hereafter: "Consequently, all these suits are partly decreed to the effect that the defendants are restrained permanently from removing the palintiffs from the suit sites without terminating the Tehbazari permission granted in their favour in accordance with the provisions of section 430(3) of the DMC Act. The prayer for injunction against demolition or removal of the stalls of the plaintiffs is disallowed. " It therefore follows that the learned Subordinate Judge accordingly disallowed the plaintiffs main claim seeking a declaration that the Municipal Corporation had no right or authority to remove the stalls built up by them on the pavement in front of the main gate of the Irwin Hospital. He however held that by virtue of the tehbazari licence granted in their favour, the plaintiffs had acquired the right to occupy and carry on business at the suit site each admeasuring 6 ft. x 4 ft. in question and till their licence was not terminated by the Municipal Corporation after PG NO 935 following the procedure laid down in proviso (a) to sub section (3) of section 430 of the Act. It had no power to remove the plaintiffs nor interfere with their business at the suit sites.
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Some persons were plying their business by squatting on pavement in front of a hospital in Delhi and had put up stalls or kiosk allegedly on Tehbazari under a licence under section 321 of the Delhi Municipal Corporation Act, 1957. The Delhi Municipal Corporation tried to remove them by demolishing their stalls etc. These persons filed suits in the Court of Subordinate Judge praying for perpetual injunction restraining the Corporation from interfering with their business and/or removing or demolishing any temporary structures put up by them for plying their trade. The Subordinate Judge disallowed the plaintiffs ' main claim seeking a declaration that the Municipal Corporation had no right or authority to remove the stalls built up by them. He however held that by virtue of the Tehbazari licence granted in their favour the plaintiffs had acquired the right to occupy and carry on business at the suit sites till their licence was not terminated by the Corporation according to the procedure laid down in proviso (a)(ii) of Sub Section of Section 430 of the Act. Two of the squatters namely Jamuna Das and his brother filed writ petitions in this Court seeking a writ of mandamus ordaining the Municipal Corporation to allot each of them a suitable site on pavement in front of the main gate of the hospital. (Jamna Das & Anr. vs PG NO 929 PG NO 930 Delhi Administration & Ors., Writ Petition Nos. 981 982 of 1984.) This Court directed that the petitioners be rehabilitated by the Municipal Corporation by construction of stalls according to the sketch plan filed by the Corporation with a further direction that each of them would be put in possession of one of the stalls. The Court made it clear that this was a consent order and that the direction should not be treated as a precedent. The respondent, who was one of the plaintiffs who had filed suits in the court of Subordinate Judge, moved the High Court under Article 226 of the Constitution for a writ and direction restraining the Corporation from evicting her without the due process of law. The High Court partly allowed the writ petition holding that the judgment of the Learned Subordinate Judge which was a judgment inter partes had become final not having been appealed from and therefore the respondent could not be removed from pitching her stall on the pavement outside the hospital where she was squatting. Relying on the decision of this Court in Jamuna Das ' case the High Court gave an option to the Corporation either to construct the stall similar to the one they have constructed in compliance with the direction made by this Court in Jamuna Das ' case or in the alternative furnish to the respondent a plan of the stall with requisite permission so that she could build her own stall accordingly. Feeling aggrieved by this Judgment of the High Court, the Municipal Corporation filed this appeal by special leave. Allowing the appeal this Court, HELD: The Learned Judges of the High Court failed to appreciate that this Court in Jamna Das ' case made a direction with the consent of parties and with the reservation that it should not be treated as a precedent. It expressed no opinion on the question whether there was any statutory obligation cast on the Municipal Corporation to provide alternative site to a person making illegal encroachment on a public place like any public street etc. contrary to Section 320 of the Act as a condition precedent to the exercise of its powers under section 322 of the Act for the removal of such encroachment on any public street, footpath or pavement. That apart, the High Court could not have made the impugned direction contrary to the provisions contained in sections 320 and 322 of the Act. [937A C It is axiomatic that when a direction or order is made by consent of the parties, the Court does not adjudicate upon the rights of the parties nor lay down any principle. Quotability as 'law ' applies to the principle of a case, its ratio decidendi. The only thing in a Judge 's decision PG NO 931 binding as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. The task of finding the principle is fraught with difficulty because without an investigation into the facts, as in the present case, it could not be assumed whether a similar direction must or ought to be made as a measure of social justice. That being so, the direction made by this Court in Jamna Das ' case could not be treated to be a precedent. The High Court failed to realise that the direction in Jamna Das ' case was made not only with the consent of the parties but there was an interplay of various factors and the Court was moved by compassion to evolve a situation to mitigate hardship which was acceptable by all the parties concerned. [937F H; 938A] Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Das ' case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavements or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. [938F G ] A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. [938G H] Salmond on Jurisprudence by P.J. Fitzgerald, 12th Ed.; Gerard vs Worth of Paris Ltd. (K), and Lancaster Motor Co. (London) Ltd. vs Bremith Ltd.,, referred to. Precedents sub silentio and without argument are of no moment. This rule 'has ever since been followed. One of the chief reasons for the doctrine of precedents is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a Judge, however eminent, can be treated as an ex cathedra statement. having the weight of authority. [939G H] PG NO 932 Olga Tellis & Ors. vs Bombay Municipal Corporation & Ors., ; and Bombay Hawkers ' Union & Ors. vs Bombay Municipal Corporation & Ors., ;, referred to.
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What is the summary of this judgment?
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It could not take recourse to its power of removal of encroachment without notice under section 322(a) of the Act. It is equally evident that the learned Subordinate Judge partly decreed the plaintiffs ' claim only to that extent that it restrained the Municipal Corporation from taking any steps for removal of such encroachment by the plaintiffs inasmuch as the power under section 322(a) of the Act cannot be exercised without following the procedure laid down in section 430(3) of the Act and without terminating the tehbazari licence granted in their favour. The respondent Gurnam Kaur was one of the plaintiffs and she had been in occupation of a site admeasuring 6 ft. x 4 ft. on the basis of tehbazari licence intermittently since the year 1960 and had been paying the licence fee therefor. The decree passed by the learned Subordinate Judge not having been appealed from by the Municipal Corporation of Delhi has since become final. The rights of the parties therefore stand crystallized by the terms of th decree passed by the learned Subordinate Judge. There was a further development.
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Some persons were plying their business by squatting on pavement in front of a hospital in Delhi and had put up stalls or kiosk allegedly on Tehbazari under a licence under section 321 of the Delhi Municipal Corporation Act, 1957. The Delhi Municipal Corporation tried to remove them by demolishing their stalls etc. These persons filed suits in the Court of Subordinate Judge praying for perpetual injunction restraining the Corporation from interfering with their business and/or removing or demolishing any temporary structures put up by them for plying their trade. The Subordinate Judge disallowed the plaintiffs ' main claim seeking a declaration that the Municipal Corporation had no right or authority to remove the stalls built up by them. He however held that by virtue of the Tehbazari licence granted in their favour the plaintiffs had acquired the right to occupy and carry on business at the suit sites till their licence was not terminated by the Corporation according to the procedure laid down in proviso (a)(ii) of Sub Section of Section 430 of the Act. Two of the squatters namely Jamuna Das and his brother filed writ petitions in this Court seeking a writ of mandamus ordaining the Municipal Corporation to allot each of them a suitable site on pavement in front of the main gate of the hospital. (Jamna Das & Anr. vs PG NO 929 PG NO 930 Delhi Administration & Ors., Writ Petition Nos. 981 982 of 1984.) This Court directed that the petitioners be rehabilitated by the Municipal Corporation by construction of stalls according to the sketch plan filed by the Corporation with a further direction that each of them would be put in possession of one of the stalls. The Court made it clear that this was a consent order and that the direction should not be treated as a precedent. The respondent, who was one of the plaintiffs who had filed suits in the court of Subordinate Judge, moved the High Court under Article 226 of the Constitution for a writ and direction restraining the Corporation from evicting her without the due process of law. The High Court partly allowed the writ petition holding that the judgment of the Learned Subordinate Judge which was a judgment inter partes had become final not having been appealed from and therefore the respondent could not be removed from pitching her stall on the pavement outside the hospital where she was squatting. Relying on the decision of this Court in Jamuna Das ' case the High Court gave an option to the Corporation either to construct the stall similar to the one they have constructed in compliance with the direction made by this Court in Jamuna Das ' case or in the alternative furnish to the respondent a plan of the stall with requisite permission so that she could build her own stall accordingly. Feeling aggrieved by this Judgment of the High Court, the Municipal Corporation filed this appeal by special leave. Allowing the appeal this Court, HELD: The Learned Judges of the High Court failed to appreciate that this Court in Jamna Das ' case made a direction with the consent of parties and with the reservation that it should not be treated as a precedent. It expressed no opinion on the question whether there was any statutory obligation cast on the Municipal Corporation to provide alternative site to a person making illegal encroachment on a public place like any public street etc. contrary to Section 320 of the Act as a condition precedent to the exercise of its powers under section 322 of the Act for the removal of such encroachment on any public street, footpath or pavement. That apart, the High Court could not have made the impugned direction contrary to the provisions contained in sections 320 and 322 of the Act. [937A C It is axiomatic that when a direction or order is made by consent of the parties, the Court does not adjudicate upon the rights of the parties nor lay down any principle. Quotability as 'law ' applies to the principle of a case, its ratio decidendi. The only thing in a Judge 's decision PG NO 931 binding as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. The task of finding the principle is fraught with difficulty because without an investigation into the facts, as in the present case, it could not be assumed whether a similar direction must or ought to be made as a measure of social justice. That being so, the direction made by this Court in Jamna Das ' case could not be treated to be a precedent. The High Court failed to realise that the direction in Jamna Das ' case was made not only with the consent of the parties but there was an interplay of various factors and the Court was moved by compassion to evolve a situation to mitigate hardship which was acceptable by all the parties concerned. [937F H; 938A] Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Das ' case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavements or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. [938F G ] A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. [938G H] Salmond on Jurisprudence by P.J. Fitzgerald, 12th Ed.; Gerard vs Worth of Paris Ltd. (K), and Lancaster Motor Co. (London) Ltd. vs Bremith Ltd.,, referred to. Precedents sub silentio and without argument are of no moment. This rule 'has ever since been followed. One of the chief reasons for the doctrine of precedents is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a Judge, however eminent, can be treated as an ex cathedra statement. having the weight of authority. [939G H] PG NO 932 Olga Tellis & Ors. vs Bombay Municipal Corporation & Ors., ; and Bombay Hawkers ' Union & Ors. vs Bombay Municipal Corporation & Ors., ;, referred to.
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What is the summary of this judgment?
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Two of the squatters, namely, one Jamna Das and his brother moved this Court by petition under article 32 of the Constitution, being Writ Petition Nos. 981 82/84 Jamna Das & Anr. vs Delhi Administration & Ors., seeking a writ in the nature of mandamus ordaining the Municipal Corporation to allot each of them a suitable site on the pavement in front of the main gate of the Irwin Hospital. Their grievance was that they were similarly situate like 10 other squatters who were all plying their trade on the pavement in front of the main gate of the Irwin Hospital catering to the needs of the visitors to the hospital by selling tea, snacks, pan, bidi etc. and although the Municipal Corporation had rehabilitated the said 10 squatters by allotment of stalls to them, despite repeated applications there was no redressal of the wrong done to them inasmuch as the Municipal Corporation had arbitrarily and without any rational basis, denied them such facility. Further, it was alleged in that case that the father of the petitioners had been occupying the site admeasuring 6 ft. x 4 ft. on tehbazari licence since the year 1947 till his death in 1975 and thereafter the petitioners were permitted to occupy the same on similar terms but the Municipal Corporation illegally caused their removal with police help.
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Some persons were plying their business by squatting on pavement in front of a hospital in Delhi and had put up stalls or kiosk allegedly on Tehbazari under a licence under section 321 of the Delhi Municipal Corporation Act, 1957. The Delhi Municipal Corporation tried to remove them by demolishing their stalls etc. These persons filed suits in the Court of Subordinate Judge praying for perpetual injunction restraining the Corporation from interfering with their business and/or removing or demolishing any temporary structures put up by them for plying their trade. The Subordinate Judge disallowed the plaintiffs ' main claim seeking a declaration that the Municipal Corporation had no right or authority to remove the stalls built up by them. He however held that by virtue of the Tehbazari licence granted in their favour the plaintiffs had acquired the right to occupy and carry on business at the suit sites till their licence was not terminated by the Corporation according to the procedure laid down in proviso (a)(ii) of Sub Section of Section 430 of the Act. Two of the squatters namely Jamuna Das and his brother filed writ petitions in this Court seeking a writ of mandamus ordaining the Municipal Corporation to allot each of them a suitable site on pavement in front of the main gate of the hospital. (Jamna Das & Anr. vs PG NO 929 PG NO 930 Delhi Administration & Ors., Writ Petition Nos. 981 982 of 1984.) This Court directed that the petitioners be rehabilitated by the Municipal Corporation by construction of stalls according to the sketch plan filed by the Corporation with a further direction that each of them would be put in possession of one of the stalls. The Court made it clear that this was a consent order and that the direction should not be treated as a precedent. The respondent, who was one of the plaintiffs who had filed suits in the court of Subordinate Judge, moved the High Court under Article 226 of the Constitution for a writ and direction restraining the Corporation from evicting her without the due process of law. The High Court partly allowed the writ petition holding that the judgment of the Learned Subordinate Judge which was a judgment inter partes had become final not having been appealed from and therefore the respondent could not be removed from pitching her stall on the pavement outside the hospital where she was squatting. Relying on the decision of this Court in Jamuna Das ' case the High Court gave an option to the Corporation either to construct the stall similar to the one they have constructed in compliance with the direction made by this Court in Jamuna Das ' case or in the alternative furnish to the respondent a plan of the stall with requisite permission so that she could build her own stall accordingly. Feeling aggrieved by this Judgment of the High Court, the Municipal Corporation filed this appeal by special leave. Allowing the appeal this Court, HELD: The Learned Judges of the High Court failed to appreciate that this Court in Jamna Das ' case made a direction with the consent of parties and with the reservation that it should not be treated as a precedent. It expressed no opinion on the question whether there was any statutory obligation cast on the Municipal Corporation to provide alternative site to a person making illegal encroachment on a public place like any public street etc. contrary to Section 320 of the Act as a condition precedent to the exercise of its powers under section 322 of the Act for the removal of such encroachment on any public street, footpath or pavement. That apart, the High Court could not have made the impugned direction contrary to the provisions contained in sections 320 and 322 of the Act. [937A C It is axiomatic that when a direction or order is made by consent of the parties, the Court does not adjudicate upon the rights of the parties nor lay down any principle. Quotability as 'law ' applies to the principle of a case, its ratio decidendi. The only thing in a Judge 's decision PG NO 931 binding as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. The task of finding the principle is fraught with difficulty because without an investigation into the facts, as in the present case, it could not be assumed whether a similar direction must or ought to be made as a measure of social justice. That being so, the direction made by this Court in Jamna Das ' case could not be treated to be a precedent. The High Court failed to realise that the direction in Jamna Das ' case was made not only with the consent of the parties but there was an interplay of various factors and the Court was moved by compassion to evolve a situation to mitigate hardship which was acceptable by all the parties concerned. [937F H; 938A] Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Das ' case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavements or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. [938F G ] A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. [938G H] Salmond on Jurisprudence by P.J. Fitzgerald, 12th Ed.; Gerard vs Worth of Paris Ltd. (K), and Lancaster Motor Co. (London) Ltd. vs Bremith Ltd.,, referred to. Precedents sub silentio and without argument are of no moment. This rule 'has ever since been followed. One of the chief reasons for the doctrine of precedents is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a Judge, however eminent, can be treated as an ex cathedra statement. having the weight of authority. [939G H] PG NO 932 Olga Tellis & Ors. vs Bombay Municipal Corporation & Ors., ; and Bombay Hawkers ' Union & Ors. vs Bombay Municipal Corporation & Ors., ;, referred to.
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What is the summary of this judgment?
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It was averred that the Municipal Corporation could not take recourse to its power of eviction under section 322(a) of the Act without terminating the tehbazari licence in their favour and without following the procedure prescribed by proviso (a) to section 430(3) of the Act. Several adjournments were taken in an effort to find a solution to PG NO 936 the problem by learned counsel appearing for the Municipal Corporation. Eventually, Desai, J. speaking for a Bench of two Judges by his order dated March 29, 1985 made a direction for rehabilitation of the petitioners. Virtually, it was a consent order as learned counsel appearing both for the Delhi Development Authority and the Municipal Corporation requested the Court to give a direction keeping in view the sketch plan furnished by the Municipal Corporation, and gave an undertaking that any direction made by the Court for rehabilitation of the petitioners would be carried out. The Court accordingly directed that the petitioners be rehabilitated by the Municipal Corporation by construction of stalls according to the sketch plan with a further direction that each of them would be put in possession of one of the stalls. The direction was however made subject to the condition that such construction of stalls would not cause any further obstruction to the free flow of traffic.
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Some persons were plying their business by squatting on pavement in front of a hospital in Delhi and had put up stalls or kiosk allegedly on Tehbazari under a licence under section 321 of the Delhi Municipal Corporation Act, 1957. The Delhi Municipal Corporation tried to remove them by demolishing their stalls etc. These persons filed suits in the Court of Subordinate Judge praying for perpetual injunction restraining the Corporation from interfering with their business and/or removing or demolishing any temporary structures put up by them for plying their trade. The Subordinate Judge disallowed the plaintiffs ' main claim seeking a declaration that the Municipal Corporation had no right or authority to remove the stalls built up by them. He however held that by virtue of the Tehbazari licence granted in their favour the plaintiffs had acquired the right to occupy and carry on business at the suit sites till their licence was not terminated by the Corporation according to the procedure laid down in proviso (a)(ii) of Sub Section of Section 430 of the Act. Two of the squatters namely Jamuna Das and his brother filed writ petitions in this Court seeking a writ of mandamus ordaining the Municipal Corporation to allot each of them a suitable site on pavement in front of the main gate of the hospital. (Jamna Das & Anr. vs PG NO 929 PG NO 930 Delhi Administration & Ors., Writ Petition Nos. 981 982 of 1984.) This Court directed that the petitioners be rehabilitated by the Municipal Corporation by construction of stalls according to the sketch plan filed by the Corporation with a further direction that each of them would be put in possession of one of the stalls. The Court made it clear that this was a consent order and that the direction should not be treated as a precedent. The respondent, who was one of the plaintiffs who had filed suits in the court of Subordinate Judge, moved the High Court under Article 226 of the Constitution for a writ and direction restraining the Corporation from evicting her without the due process of law. The High Court partly allowed the writ petition holding that the judgment of the Learned Subordinate Judge which was a judgment inter partes had become final not having been appealed from and therefore the respondent could not be removed from pitching her stall on the pavement outside the hospital where she was squatting. Relying on the decision of this Court in Jamuna Das ' case the High Court gave an option to the Corporation either to construct the stall similar to the one they have constructed in compliance with the direction made by this Court in Jamuna Das ' case or in the alternative furnish to the respondent a plan of the stall with requisite permission so that she could build her own stall accordingly. Feeling aggrieved by this Judgment of the High Court, the Municipal Corporation filed this appeal by special leave. Allowing the appeal this Court, HELD: The Learned Judges of the High Court failed to appreciate that this Court in Jamna Das ' case made a direction with the consent of parties and with the reservation that it should not be treated as a precedent. It expressed no opinion on the question whether there was any statutory obligation cast on the Municipal Corporation to provide alternative site to a person making illegal encroachment on a public place like any public street etc. contrary to Section 320 of the Act as a condition precedent to the exercise of its powers under section 322 of the Act for the removal of such encroachment on any public street, footpath or pavement. That apart, the High Court could not have made the impugned direction contrary to the provisions contained in sections 320 and 322 of the Act. [937A C It is axiomatic that when a direction or order is made by consent of the parties, the Court does not adjudicate upon the rights of the parties nor lay down any principle. Quotability as 'law ' applies to the principle of a case, its ratio decidendi. The only thing in a Judge 's decision PG NO 931 binding as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. The task of finding the principle is fraught with difficulty because without an investigation into the facts, as in the present case, it could not be assumed whether a similar direction must or ought to be made as a measure of social justice. That being so, the direction made by this Court in Jamna Das ' case could not be treated to be a precedent. The High Court failed to realise that the direction in Jamna Das ' case was made not only with the consent of the parties but there was an interplay of various factors and the Court was moved by compassion to evolve a situation to mitigate hardship which was acceptable by all the parties concerned. [937F H; 938A] Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Das ' case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavements or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. [938F G ] A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. [938G H] Salmond on Jurisprudence by P.J. Fitzgerald, 12th Ed.; Gerard vs Worth of Paris Ltd. (K), and Lancaster Motor Co. (London) Ltd. vs Bremith Ltd.,, referred to. Precedents sub silentio and without argument are of no moment. This rule 'has ever since been followed. One of the chief reasons for the doctrine of precedents is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a Judge, however eminent, can be treated as an ex cathedra statement. having the weight of authority. [939G H] PG NO 932 Olga Tellis & Ors. vs Bombay Municipal Corporation & Ors., ; and Bombay Hawkers ' Union & Ors. vs Bombay Municipal Corporation & Ors., ;, referred to.
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What is the summary of this judgment?
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The Court also made it clear that the direction should not be treated as a precedent. Presumably because of the direction made by this Court in Jamna Das ' case. the respondent Gurnam Kaur moved the High Court under article 226 of the Constitution in April, l986 for the issuance of an appropriate writ or direction restraining the Municipal Corporation from evicting her without the due process of law. A Division Bench of the High Court by the impugned judgment has partly allowed the writ petition holding that the judgment of the learned Subordinate Judge which was a judgment inter partes had become final, not having been appealed from and therefore the respondent could not be removed from pitching her stall on the pavement outside the main OPD gate of the Irwin Hospital where she was squatting. The learned Judges relied upon the decision of this Court in Jamna Das case where a direction was made requiring the Municipal Corporation to construct stall for the petitioners in that case, so that they could be rehabilitated. The learned Judges felt that it was equally desirable that the respondent Gurnam Kaur instead of being allowed to squat on the pavement, should be provided with a stall of the same pattern and design as had been done for the two squatters in Jamna Das case.
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Some persons were plying their business by squatting on pavement in front of a hospital in Delhi and had put up stalls or kiosk allegedly on Tehbazari under a licence under section 321 of the Delhi Municipal Corporation Act, 1957. The Delhi Municipal Corporation tried to remove them by demolishing their stalls etc. These persons filed suits in the Court of Subordinate Judge praying for perpetual injunction restraining the Corporation from interfering with their business and/or removing or demolishing any temporary structures put up by them for plying their trade. The Subordinate Judge disallowed the plaintiffs ' main claim seeking a declaration that the Municipal Corporation had no right or authority to remove the stalls built up by them. He however held that by virtue of the Tehbazari licence granted in their favour the plaintiffs had acquired the right to occupy and carry on business at the suit sites till their licence was not terminated by the Corporation according to the procedure laid down in proviso (a)(ii) of Sub Section of Section 430 of the Act. Two of the squatters namely Jamuna Das and his brother filed writ petitions in this Court seeking a writ of mandamus ordaining the Municipal Corporation to allot each of them a suitable site on pavement in front of the main gate of the hospital. (Jamna Das & Anr. vs PG NO 929 PG NO 930 Delhi Administration & Ors., Writ Petition Nos. 981 982 of 1984.) This Court directed that the petitioners be rehabilitated by the Municipal Corporation by construction of stalls according to the sketch plan filed by the Corporation with a further direction that each of them would be put in possession of one of the stalls. The Court made it clear that this was a consent order and that the direction should not be treated as a precedent. The respondent, who was one of the plaintiffs who had filed suits in the court of Subordinate Judge, moved the High Court under Article 226 of the Constitution for a writ and direction restraining the Corporation from evicting her without the due process of law. The High Court partly allowed the writ petition holding that the judgment of the Learned Subordinate Judge which was a judgment inter partes had become final not having been appealed from and therefore the respondent could not be removed from pitching her stall on the pavement outside the hospital where she was squatting. Relying on the decision of this Court in Jamuna Das ' case the High Court gave an option to the Corporation either to construct the stall similar to the one they have constructed in compliance with the direction made by this Court in Jamuna Das ' case or in the alternative furnish to the respondent a plan of the stall with requisite permission so that she could build her own stall accordingly. Feeling aggrieved by this Judgment of the High Court, the Municipal Corporation filed this appeal by special leave. Allowing the appeal this Court, HELD: The Learned Judges of the High Court failed to appreciate that this Court in Jamna Das ' case made a direction with the consent of parties and with the reservation that it should not be treated as a precedent. It expressed no opinion on the question whether there was any statutory obligation cast on the Municipal Corporation to provide alternative site to a person making illegal encroachment on a public place like any public street etc. contrary to Section 320 of the Act as a condition precedent to the exercise of its powers under section 322 of the Act for the removal of such encroachment on any public street, footpath or pavement. That apart, the High Court could not have made the impugned direction contrary to the provisions contained in sections 320 and 322 of the Act. [937A C It is axiomatic that when a direction or order is made by consent of the parties, the Court does not adjudicate upon the rights of the parties nor lay down any principle. Quotability as 'law ' applies to the principle of a case, its ratio decidendi. The only thing in a Judge 's decision PG NO 931 binding as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. The task of finding the principle is fraught with difficulty because without an investigation into the facts, as in the present case, it could not be assumed whether a similar direction must or ought to be made as a measure of social justice. That being so, the direction made by this Court in Jamna Das ' case could not be treated to be a precedent. The High Court failed to realise that the direction in Jamna Das ' case was made not only with the consent of the parties but there was an interplay of various factors and the Court was moved by compassion to evolve a situation to mitigate hardship which was acceptable by all the parties concerned. [937F H; 938A] Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Das ' case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavements or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. [938F G ] A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. [938G H] Salmond on Jurisprudence by P.J. Fitzgerald, 12th Ed.; Gerard vs Worth of Paris Ltd. (K), and Lancaster Motor Co. (London) Ltd. vs Bremith Ltd.,, referred to. Precedents sub silentio and without argument are of no moment. This rule 'has ever since been followed. One of the chief reasons for the doctrine of precedents is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a Judge, however eminent, can be treated as an ex cathedra statement. having the weight of authority. [939G H] PG NO 932 Olga Tellis & Ors. vs Bombay Municipal Corporation & Ors., ; and Bombay Hawkers ' Union & Ors. vs Bombay Municipal Corporation & Ors., ;, referred to.
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What is the summary of this judgment?
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The High Court gave an option to the Municipal Corporation either to construct a stall similar to the one they had constructed in compliance with the direction made by this Court in Jamna Das ' case or, in the alternative, furnish to the respondent a plan of the stall with requisite permission so that she could build her own stall accordingly. PG NO 937 We find it rather difficult to sustain the judgment of the High Court. The learned Judges failed to appreciate that this Court in Jamna Das ' case made a direction with the consent of parties and with the reservation that it should not be treated as a precedent. It expressed no opinion on the question whether there was any statutory obligation cast on the Municipal Corporation to provide alternative site to a person making illegal encroachment on a public place like any public street etc. contrary to section 320 of the Act, as a condition precedent to the exercise of its powers under section 322 of the Act for the removal of such encroachment on any public street, footpath or pavement. That apart,the High Court could not have made the impugned direction contrary to the provisions contained in sections 320 and 322 of the Act.
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Some persons were plying their business by squatting on pavement in front of a hospital in Delhi and had put up stalls or kiosk allegedly on Tehbazari under a licence under section 321 of the Delhi Municipal Corporation Act, 1957. The Delhi Municipal Corporation tried to remove them by demolishing their stalls etc. These persons filed suits in the Court of Subordinate Judge praying for perpetual injunction restraining the Corporation from interfering with their business and/or removing or demolishing any temporary structures put up by them for plying their trade. The Subordinate Judge disallowed the plaintiffs ' main claim seeking a declaration that the Municipal Corporation had no right or authority to remove the stalls built up by them. He however held that by virtue of the Tehbazari licence granted in their favour the plaintiffs had acquired the right to occupy and carry on business at the suit sites till their licence was not terminated by the Corporation according to the procedure laid down in proviso (a)(ii) of Sub Section of Section 430 of the Act. Two of the squatters namely Jamuna Das and his brother filed writ petitions in this Court seeking a writ of mandamus ordaining the Municipal Corporation to allot each of them a suitable site on pavement in front of the main gate of the hospital. (Jamna Das & Anr. vs PG NO 929 PG NO 930 Delhi Administration & Ors., Writ Petition Nos. 981 982 of 1984.) This Court directed that the petitioners be rehabilitated by the Municipal Corporation by construction of stalls according to the sketch plan filed by the Corporation with a further direction that each of them would be put in possession of one of the stalls. The Court made it clear that this was a consent order and that the direction should not be treated as a precedent. The respondent, who was one of the plaintiffs who had filed suits in the court of Subordinate Judge, moved the High Court under Article 226 of the Constitution for a writ and direction restraining the Corporation from evicting her without the due process of law. The High Court partly allowed the writ petition holding that the judgment of the Learned Subordinate Judge which was a judgment inter partes had become final not having been appealed from and therefore the respondent could not be removed from pitching her stall on the pavement outside the hospital where she was squatting. Relying on the decision of this Court in Jamuna Das ' case the High Court gave an option to the Corporation either to construct the stall similar to the one they have constructed in compliance with the direction made by this Court in Jamuna Das ' case or in the alternative furnish to the respondent a plan of the stall with requisite permission so that she could build her own stall accordingly. Feeling aggrieved by this Judgment of the High Court, the Municipal Corporation filed this appeal by special leave. Allowing the appeal this Court, HELD: The Learned Judges of the High Court failed to appreciate that this Court in Jamna Das ' case made a direction with the consent of parties and with the reservation that it should not be treated as a precedent. It expressed no opinion on the question whether there was any statutory obligation cast on the Municipal Corporation to provide alternative site to a person making illegal encroachment on a public place like any public street etc. contrary to Section 320 of the Act as a condition precedent to the exercise of its powers under section 322 of the Act for the removal of such encroachment on any public street, footpath or pavement. That apart, the High Court could not have made the impugned direction contrary to the provisions contained in sections 320 and 322 of the Act. [937A C It is axiomatic that when a direction or order is made by consent of the parties, the Court does not adjudicate upon the rights of the parties nor lay down any principle. Quotability as 'law ' applies to the principle of a case, its ratio decidendi. The only thing in a Judge 's decision PG NO 931 binding as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. The task of finding the principle is fraught with difficulty because without an investigation into the facts, as in the present case, it could not be assumed whether a similar direction must or ought to be made as a measure of social justice. That being so, the direction made by this Court in Jamna Das ' case could not be treated to be a precedent. The High Court failed to realise that the direction in Jamna Das ' case was made not only with the consent of the parties but there was an interplay of various factors and the Court was moved by compassion to evolve a situation to mitigate hardship which was acceptable by all the parties concerned. [937F H; 938A] Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Das ' case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavements or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. [938F G ] A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. [938G H] Salmond on Jurisprudence by P.J. Fitzgerald, 12th Ed.; Gerard vs Worth of Paris Ltd. (K), and Lancaster Motor Co. (London) Ltd. vs Bremith Ltd.,, referred to. Precedents sub silentio and without argument are of no moment. This rule 'has ever since been followed. One of the chief reasons for the doctrine of precedents is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a Judge, however eminent, can be treated as an ex cathedra statement. having the weight of authority. [939G H] PG NO 932 Olga Tellis & Ors. vs Bombay Municipal Corporation & Ors., ; and Bombay Hawkers ' Union & Ors. vs Bombay Municipal Corporation & Ors., ;, referred to.
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