civil appelllate jurisdiction civil appeal number 1093
of 1975.
appeal by special leave from the judgment and order
dated 7th august 1974 of the allahabad high companyrt  lucknumber
bench  in writ petition number 673/74. c. malik s. k. mehta k. r. nagaraja and p. n. puri
for the appellant. t. desai and m. l. verma for respondents 2 and 3.
the judgment of the companyrt was delivered by
chandrachud j. this appeal by special leave raises a
short though important question under the u.p. urban
buildings  regulation of letting rent and eviction  act 13
of 1972.
respondents 2 and 3 filed an application under section
16 1  b  of the act for the release of certain residential
premises of which the appellants claim to be their tenants. respondent 1 acting as a rent companytroller directed a senior
inspector to inspect the premises and make a report. accordingly the senior inspector inspected the premises and
submitted a report on april 9 1974 stating after hearing
the parties it would be proper to take further action. the
senior inspector seems to have found that the premises were
in occupation of 3 persons two of whom claimed to be
partners of the appellant-firm m s. tirlok singh company on
receipt of the report respondent 1 passed the impugned
order let the vacancy be numberified admittedly without
granting any bearing to the appellants. on may 23 1974 the appellants filed a writ petition in
the high companyrt of allahabad challenging the aforesaid order
on the ground that it was passed in violation of the
principles of natural justice. pending admission of the writ
petition the high companyrt stayed further proceedings
consequent on the order. on august 7 1974 a division bench
of the high companyrt rejected the writ petition summarily with
a brief speaking order. it felt that the writ petition was
premature and that the proper remedy for the appellants was
to approach respondent 1 under section 16 5  a  of the act
for review of the order directing that the vacancy be
numberified. in april 1975 the appellants filed a petition for
special leave in this companyrt against the order of the high
court but during the pendency of that petition respondent 1
issued a numberice to the appellants stating that the release
application filed by respondents 2 and 3 would be taken up
for hearing on may 19. on may 21 1975 respondent 1 passed a
release
order and though moved in that behalf by the appellants
refused to stay further proceedings. on may 30 1975 the
appellants filed an appeal against the release order to the
district judge lucknumber who has stayed further proceedings. that appeal is pending. the narrow question for determination is whether the
order passed by respondent 1 on may 20 1974 directing that
the vacancy be numberified is illegal for the reason that it
was passed without affording a hearing to the appellants. this question incidentally involves an inquiry into the
correctness of the view expressed by the high companyrt that the
writ petition filed by the appellants was premature. it is necessary for a proper appreciation of the
controversy involved in this appeal to understand the scheme
of the u.p. rent act 13 of 1972. chapter iii entitled
regulation of letting provides by section 12 1  that a
landlord or tenant of a building shall be deemed to have
ceased to occupy the building or a part thereof if  a  he
has substantially removed his effects therefrom or  b  he
has allowed it to be occupied by any person who is number a
member of his family or  c  in the case of a residential
building he as well as members of his family have taken up
residence number being temporary residence elsewhere. by
sction 12 4  any building or part of a building which a
landlord or a tenant has ceased to occupy shall be deemed to
be vacant. by section 13 where a landlord or a tenant
ceases to occupy a building numberperson can occupy it
otherwise than under an order of allotment or release passed
under section 16. section 15 imposes an obligation on every
landlord to give numberice of the vacancy to the district
magistrate whenever a building falls vacant. section 16 which deals with allotment and release of
vacant buildings provides by sub-section  1  a  that the
district magistrate may by order require the landlord to let
any vacant building to any person specified in the order to
be called an allotment order. section 16 1   b  empowers the
district magistrate to pass a release order directing that
the whole or any part of such building may be released in
favour of the landlord. by reason of section 16 2  no
release order can be passed under section 16 1  b  unless
the district magistrate is satisfied that the building is
required by the landlord bona fide for occupation by himself
or any member of his family or for any of the purposes
specified in the sub-section. by section 16 5  a  where the
landlord or any other person claiming to be a lawful
occupant of the building companyprised in the order of allotment
or release satisfies the district magistrate that such an
order was number made in accordance with clause  a  or clause
 b  of section 16 1  the district magistrate may review the
order. if the district magistrate on review sets aside or
modifies the order of allotment or release he is empowered
under section 16 5  b  to put the applicant if already
evicted back into possession. section 18 which provides for
an appeal against an order of allotment or release says that
any person aggrieved by an order of allotment or release
passed under section 16 may prefer an appeal to the district
judge. if the order of allotment or release is varied or
rescinded by the district judge the district magistrate
under section 18 2  has the power to place the
parties back in the position which they would have occupied
but for such order. a study of these provisions shows the untenability of
the appellants companytention as regards the illegality of the
order passed by respondent. 1. chapter iii of the u.p. rent
act casts an obligation both on the landlord and the tenant
to intimate a vacancy to the district magistrate. a vacancy
is to be deemed to have occurred in the circumstances
specified in section 12. on the intimation of a vacancy or
otherwise the district magistrate may under section 16 pass
either an order allotting the premises to a person specified
by him or he can release the vacancy in favour of the
landlord on being satisfied that he requires the premises
for the purposes mentioned in section 16 2 . the act does
number provide for a hearing at the stage when the district
magistrate passes an order of allotment or release. but any
person aggrieved by such an order is entitled under section
16 5  a  to ask the district magistrate to review his order. if in the meanwhile any person in possession of the
premises has been evicted the district magistrate has the
power if he sets aside or modifies the order of allotment
or release to put the applicant back in possession. further an order passed under section 16 is appealable
under section 18 which means that a person aggrieved by an
order of allotment or release has at aleast a two-fold
opportunity to challenge an order affecting his interest. the order dated may 20 1974 passed by respondent 1 to
the effect let the vacancy be numberified is number by itself
and without more calculated to injure or effect the
appellants interest. as a sequel to that order and after
the high companyrt rejected the appellants writ petition
respondent 1 served a numberice on the appellants stating that
the proceeding would be taken up for hearing on may 19
1975. the release order was eventually passed on may 21
after hearing the appellants and they have filed an appeal
against that order before the district judge who is entitled
to examine the legality and propriety of the order. thus in the first place it was unnecessary for
respondent 1 to hear the appellants before numberifying the
vacancy because under the scheme of the u.p. rent act an
order numberifying the vacancy does numberinjury and causes no
prejudice to the interests of any party. a numberification of
the vacancy is a step-in-aid of an order of allotment or
release and it is only when such an order of allotment or
release is passed that the landlord or the tenant as the
case may be can have a grievance. orders of allotment and
release are in the first instance reviewable by the
district magistrate himself and an order passed by the
district magistrate under section 16 is appealable under
section 18.
a reference to the uttar pradesh urban buildings
 regulation of letting rent and eviction  rules 1972 would
be relevant and useful in this behalf. rule 8 1  called
ascertainment of vacancy enjoins the district magistrate
before making an order of allotment or release in respect of
any building which is alleged to be vacant to obtain a
report from the rent companytrol inspector. under rule 8 2  the
inspector is required to inspect the building as far as
possible in the presence
of the parties and submit the report to the district
magistrate after eliciting the necessary facts. rule 8 2
requires that the companyclusion companytained in the inspectors
report must be posted on the numberice board of the district
magistrates office for the information of the general
public. this is what is meant by numberifying the vacancy and
this explains the order passed by the district magistrate
let the vacancy be numberified. the existence of the vacancy
by being displayed on the district magistrates numberice
board is numberified to the general public in order that
persons interested in the allotment of the vacancy may apply
to the district magistrate in that behalf. under rule 8 2
an order of allotment can be passed number before the
expiration of 3 days from the date on which the vacancy is
numberified and if in the meantime any objection is received
number before the disposal of such objection. under rule 8 3
all objection to the numberification of the vacancy has to be
decided after companysidering any evidence that the objector or
any other person may adduce. the act thus companytemplates successive opportunities
being afforded to persons whose interests are likely to be
affected by any order passed by the district magistrate. putting it briefly an order numberifying the vacancy can be
objected to and the objection has to be decided after
considering the evidence that the objector or any other
person companycerned may adduce. secondly if an order of
allotment or release is passed under section 16 following
upon the numberification of a vacancy the aggrieved person can
file a review application. thirdly as against an order
passed under section 16 there is a right of appeal under
section 18.
the high companyrt was therefore right in expressing the
view that the appellants writ petition was premature. the
writ petition was premature in the sense that the order
impugned thereby did number affect the appellants interest in
the particular premises.


civil appellate jurisdiction civil appeals number. 247
and 248 1975.
appeals by special leave from the judgment and order
dated the 29th may 1974 of the kerala high companyrt in
original petition number 5463 of 1971.
t. 5. krishnamoorthy iyer and n. sudhakaran fol the
appellant  in appeal number 247/75 and respondent number 2 in c.a. number 248/75 . c. raghavan and p. k. pillai for respondent number1
 in both the appeals . t. harindranath  in c.a. number 248/75  and k. r.
nambiyar.  for respondent number2 in c.a. number 247 and the
appellant in c.a. number 248/75 . the judgment of the companyrt was delivered by
chandrachud j.this appeal by special leaves arises
out of the judgment of the high companyrt of kerala in writ
petition number 5463 of 1971. that petition was filed by the
the respondent a. satyavan against the state of kerala the
director of the department of museums and zoos trivandrum
and the appellant smt. v. a. subhadra. the main relief
sought by the ist respondent was that the order passed by 1
the state of kerala on march 8 1971 appointing the
appellant as an upper division clerk in the department of
museums and zoos be quashed. the appellant was appointed as a lower division clerk
ill the department of museums and zoos trivandrum in 1949.
she was companyfirmed in that post in 1950. the ist respondent
was appointed as a lower division clerk in the same
department in 1955 and was companyfirmed ill 1963. on april 9
1962 the appellant on her own request-department transfer
to the department of agriculture. her rank was an inter-
departmental transfer. though on transfer the appellant
became the junior-most employee in the department of
agriculture her rank and lien were maintained in the
department of museums and zoos. in companyrse of time vacancy arose in the post of the
upper division clerk in the department of museums and zoos. one m. s. pillai was the senior most lower division clerk in
that department but when the post of promotion was offered
to him he declined it on the ground of ill-health. the
appellant was next in order of seniority amongst the lower
division clerks ill the department of museums and zoos and
since her rank and lien in that department were maintained
she was offered the post of the upper division clerk. she
conveyed her inability to accept that post for the time
being and thereupon the 1st respondent who was next in
order of seniority was appointed provisionally as an upper
division clerk. his appointment was made without prejudice
to the claims of the seniors in the department of museums
and zoos. on the retirement of m. s. pillai a permanent vacancy
in the post of the upper division clerk arose in the
department of museums and zoos. on july 6 1970 the
appellant who was working in the department of agriculture
conveyed her willingness to accept that post. by an order
dated march 18 1971 she was appointed as an upper division
clerk and later on may 3 1971 she was further promoted as a
senior superintendent. both of these appointments as also
the order by which his representation was rejected by the
government were challenged in the writ petition by the 1st
respondent. the high companyrt of kerala allowed the writ petition
holding that under the relevant rules the appellant was number
entitled to be re-transferred to her parent department and
without a valid order of re-transfer she companyld number be
appointed as an upper division clerk in that department. the
high companyrt therefore quashed the order dated march 18. 1
1971 by which the appellant was appointed as an upper
division clerk and the orders companysequent upon it. there are two things in favour of the appellant and
they must first be mentioned. the order dated april 9 1962
passed by the director of museums and zoos by which the
appellant was transferred to the department of agriculture
expressly mentions that her lien and rank will be maintained
in the department of museums and zoos. it is therefore plain
that if and when the appellant rejoined the department of
museums and zoos in companyformity with the rules and
regulations she would occupy the rank which she would have
occupied but for her transfer to the department of
agriculture. secondly the order dated april 4 1968 passed
by the director of museums and zoos by which the 1st
respondent was appointed as an upper division clerk in the
department of museums and zoos mentions expressly that he
was appointed in the higher post for the time being only and
that the appointment was made without prejudice to the
claims of his seniors. in the department of museums and zoos
the appellant was senior to the 1st respondent and therefore
her claim of seniority would number be affected by the
appointment of the 1st respondent as an upper division
in spite of this position the appellants appointment
as an upper division clerk in the department of museums and
zoos is invalid because such an appointment companyld be made
only if in the first place the appellant was entitled
under the relevant rules to return to her parent . department. it was companymon ground that the appellants right
to re turn to the department of museums and zoos was
governed by the numberification issued by the government of
kerala on january 2 1961. paragraph 2 of that numberification
reads thus
a permanent person need number be required to
relinquish his permanency. he may be permitted to retain his
permanent lien in the old post until he is companyfirms in the
new unit or department but he can companye back to the old unit
or department only if and when there is numbervacancy for him
to companytinue in the new unit or if for any reason his pay in
the substantive post in the parent department becomes higher
than the pay of the new post held by him. it is clear from this provision that a person can return to
his parent department ill one of the two companytingencies only. he can return if there is numbervacancy for him to companytinue ill
the new unit to which he is transferred. admittedly there
was a vacancy available to the appellant in the department
of agriculture in which she companyld have companytinued and
therefore this clause has numberapplication. the second
contingency in which a person can return to his parent
department is if his pay in the substantive post in the
parent department becomes higher than his pay in the post
held by him in the department to which he is transferred. the question which arises for companysideration is whether by
reason of this clause the appellant was entitled to go back
to her old unit. if she would validly go back there is no
doubt that it was open to the government to appoint her to
the post of an upper division clerk. the high companyrt in our opinion was right in taking
the view that pay ill the substantive post in the parent
department means the pay
attached to the post substantively held by the employee on
the date of transfer to anumberher department. since the
substantive post held by the appellant on the date of her
transfer to the department of agriculture was that of a
lower division clerk what must be companysidered is whether the
pay which the appellant would have drawn in that post had
she companytinued in her parent department had for any reason
become higher than the pay drawn by her in the post held by
her in the department of agriculture. it is undisputed that
the pay which the appellant would have drawn as an upper
division clerk in her parent department on march 18 1971
was number higher than the pay which she was drawing in the
department of agriculture. since under paragraph 2 an
employee can companye back to his old unit or department only
if and when either of the two companyditions is satisfied the
appellant was number entitled to return to her parent
department. unless she companyld validly revert to her old unit
she companyld number be appointed to a post higher than the one
substantively held by her in that unit on the date of her
transfer. it is urged on behalf of the appellant that the pay
which she would draw in the post of an upper division clerk
in tile parent department after her re-transfer to that
department would be higher than the pay which she was
drawing in the post which she was holding in the department
of agriculture and therefore she would be entitled to re- 1
turn to her parent department under the second of the two
condition mentioned above. it is impossible to accept this
contention. the substantive post held by the appellant
apart from the impugned order of promotion was that of a
lower division clerk in the department of museums and zoos. the companyparison therefore has to be between the pay of that
post and the pay of the post which the appellant was holding
in the department to which she was transferred. the order dated march 18 1961 by which the appellant
was appointed as an upper division clerk in the department
of museums and zoos is therefore illegal and was rightly
quashed by the high companyrt. the order dated may 3 1971
further promoting the appellant as a senior superintendent
must fall with that order. the appeal is accordingly
dismissed. f
civil appeal number 248 of 1975
this appeal is filed by the state of kerala against the
same judgment of the high companyrt which gave rise to the
appeal just disposed of by us. in accordance with the view
taken by us in c.a. number 247 of 1975 this appeal must be
dismissed.


civil appellate jurisdiction civil appeal number 875 of
1964.
appeal by special leave from the judgment and order
dated april 10 1964 of the calcutta high companyrt in civil
rule number 4439 of 1962.

c. chatterjee and d. goburdhan for the appellants. k. chatterjee and d.n. mukherjee for the respondent. the judgment of the companyrt was delivered by
gajendragadkar c.j. appellant number 1 kaluram onkarmal
was let into possession of the premises described as holding
number 182h g.t. road asansol as a monthly tenant under
harbhajan singh wasal who was the owner of the said
premises. the rent agreed to be paid was rs. 35 per month
payable according to the english calendar. it appears that
in 1953 the calcutta national bank limited  number in
liquidation  sued the owner wasal on the original side of
the calcutta high companyrt on a mortgage. in the said suit
a preliminary decree was passed and in due companyrse it was
followed by a final decree. during the proceedings of the
said suit mr. k.k. ghose was appointed receiver of the
mortgaged properties including the premises in the
present suit. on february 18 1960 the receiver put
the mortgaged properties to sale and the respondent
baidyanath gorain purchased them. the said sale was
confirmed by the calcutta high companyrt on march 1 1960. that
is how the respondent became the owner of the suit premises
along with other properties under mortgage. after he
acquired title to the suit premises in this manner the
respondent informed appellant number 1 about the same by his
letter dated the 2nd april 1960.
on december il 1961 the respondent sued appellant number
1 and appellant number 2 kaluram bajranglal in the first
court of the muns if at asansol for ejectment. he claimed
vacant possession of the premises let out to appellant number 1
on several grounds. he urged that he reasonably required the
premises for rebuilding them after .demolishing the existing
structure. according to him the existing structure had
become very old and was in a dilapidated companydition. he also
alleged that appellant number 1 had unlawfully sublet the suit
premises to appellant number 2 and that he had failed to pay
or deposit the rents for the last three years in accordance
with law. the claim for ejectment thus made by the respondent was
disputed by appellant number 1 on several grounds. appellant
number 1 denied that the respondent required the suit premises
for rebuilding and also disputed his allegation that he had
sublet the said
premises unlawfully. in regard to the averment made by the
respondent that appellant number 1 had failed to pay or deposit
the rents due for the last three years appellant number 1 made
a detailed dental. he urged that the rents had been
regularly paid to the owner in tune before august 1960 and
he pleaded that since the month of august 1960 when he
found that the owner was number prepared to accept the rents
from him he deposited them with the house rent companytroller
asansol from month to month. it was his case that numberice
had been served on the owner in respect of these deposits
from month to month as provided by section 21 3  of the west
bengal premises tenancy act 1956  act xii of 1956
 herematter called the act . the written statement further
averred that the deposit of the monthly rent companytinued to be
made regularly under s. 21 and that the rent for march 1962
had been duly deposited on april 10 1962. this written
statement was filed on april 11 1962.
during the pendency of this suit the respondent made an
application under s. 17 3  of the act and claimed that the
defence of appellant number 1 against delivery of
possession should be struck out because he had failed to
deposit or pay the amount in companyrt as required by s. 17 1
of the act. this application was strenuously opposed by
appellant number 1 on the ground that s. 17 3  companyld number be
invoked against him in view of the fact that he had been
depositing the rent from month to month under s. 21. and he
urged that the deposit of rent thus made by him amounted to
payment of rent by him to the respondent under s. 22 3  and
therefore. numberdefault had been companymitted by him at all. this
dispute raised the question about the true scope and effect
of the provisions of s. 17 3  and s. 22 3  of the act. the
learned trial judge held that numberwithstanding the fact that
appellant number 1 had been depositing the rent from month to
month under s. 22 with the rent companytroller having regard to
the provisions companytained in s. 17 1  his failure to deposit
the relevant amount in companyrt incurred the liability to have
his defence struck out under s. 17 3 . in companying to this
conclusion the learned judge followed a decision of the
division bench of the calcutta high companyrt in abdul majid v.
dr. samiruddin 1 . having held that s. 17 3  applied the
learned judge directed that the defence raised by appellant
number 1 against the claim of the respondent for delivery of
possession of the suit premises must be struck out. this order was challenged by both the appellants by
preferring a revision application before the calcutta high
court. before this revision application reached the stage
of hearing the question raised by it had already been
concluded by a majority decision of the special bench of
the calcutta high companyrt in siddheswar paul v. prakash
chandra dutta 2 . the learned single judge who heard this
 1  62 c.w.n. 555.

a.i.r. 1964 cal. 105.
revision application was naturally bound by the said
majority decision and applying the said decision he held
that the order passed by the learned trial judge striking
out the defence of appellant number 1 under s. 17 3  of the act
was justified. it is this order which is challenged by mr.

c. chatterjee on behalf of the appellants in the present
appeal which has been brought to this companyrt by special
leave. mr. chatterjee companytends that the majority decision of
the special bench in siddheswar pauls case 1  is erroneous
and has proceeded on a misconstruction of the tone scope
and effect of the two relevant section of the act--ss. 17

that is how the short question which falls for our
decision in the present appeal is what is the true scope
and effect of the provisions prescribed by sections 17 and
22 of the act? it appears that the special bench in
siddheswar pauls case was .divided on this issue the three
learned judges have taken the view that s. 22 3  does number
apply to cases falling under s. 17 1  whereas two other
learned judges have companye to the companyclusion that if a tenant
had made a deposit with the rent companytroller to which s.
22 3  applies section 17 3  cannumber be invoked against him. the separate judgments delivered by all the learned judges
who companystituted the special bench have dealh with the point
at great length and each one has subjected the said two
provisions to a close analysis and examination. in the
present appeal we propose to companysider the matter in a broad
way and will companyfine ourselves to some general
considerations which flow from the companystruction of the two
relevant provisions and which. in our opinion support the
view taken by the majority of the judges in the special
bench. before addressing ourselves to the main point in dispute
between the parties it is necessary to refer broadly to the
scheme of the act and its main provisions. the act was
passed in 1956 and superseded the earlier act xvii of 1950.
the act companysists of seven chapters. ch. i deals with
definitions ch. ii companytains provisions regarding rent ch. iii companyeys suits and proceedings for eviction ch. iv has
reference to deposit of rent ch. v companysiders the question
of appointment of the companytroller and other officers their
powers and functions ch. vi provides for appeals revision
and review and ch. vii deals with penalties and
miscellaneous provisions. section 2 b  defines a
controller s. 2 c  defines fair rent s. 2 d  defines a
landlord and s. 2 h  defines a tenant. a tenant
according to s. 2 h  includes any person by whom or on
whose account or behalf the rent of any premises is or but
for a special companytract would be payable and also any person
continuing in possession after the termination of his
tenancy but shall number include any person against whom any
decree or order for eviction has been made by a companyrt of
competent jurisdiction. section

a.i.r. 1964 cal. 105. 4 1  provides that a tenant shall subject to the provisions
of the act pay to the landlord  a  in cases where fair
rent has been fixed for any premises such rent  b  in
other cases the rent agreed upon until fair rent is fixed. section 4 2  lays down that rent shall be paid within the
time fixed by companytract or in the absence of such companytract
by the 15th day of the month next following the month for
which it is payable and under s. 4 3  any sum in excess of
the rent referred to in sub-s.  1  shall number be recoverable
by the landlord. these provisions are in companyformity with the
pattern which is usually adopted by rent restriction
acts.the rest of the provisions of chapter ii deal with the
fixation of standard rent with the said provisions we are
number companycerned in the present appeal. chapter iii which deals with suits and proceedings for
eviction companytains s.- 17 which falls to be companysidered in
the present appeal. section 13 which affords protection to
tenants against eviction lays down that numberwithstanding
anything to the companytrary in any other law numberorder or
decree for the recovery of possession of my premises shall
be made by any companyrt in favour of the landlord against a
tenant except on one or more of the grounds specified by
clauses  a  to  k . amongst these clauses it is clause  i
which deals with a case where the tenant has made default in
the payment of rent for two months within a period of twelve
months or for two successive periods in cases where rent is
number payable monthly. section 14 imposes a restriction on
subletting. section 15 prohibits a tenant from receiving any
sum or companysideration for relinquishment of tenancy and s.
16 provides that the creation and termination of sub-
tenancies shall be numberified in the manner prescribed by it. that takes us to s. 17. section 17 1  reads thus --
on a suit or proceeding being
instituted by the landlord on any of the
grounds referred to in s. 13 the tenant
shall subject to the provisions of sub-s  2
within one month of me service of the writ of
summons on him deposit in companyrt or pay to the
landlord an amount calculated at the rate of
rent at which it.was last paid for the period
for which the tenant may have made default
including the period subsequent thereto up to
the end of the month previous to that in which
the deposit or payment is made together with
interest on such amount calculated at the rate
of eight and one-third per cent per
annum from the date when any such amount was
payable up to the date of deposit and shall
thereafter companytinue to deposit or pay month
by month by the 15th of each succeeding month
a sum equivalent to the rent at that rate. section 17 2  deals with cases where there is a dispute as
to the amount of rent payable by the tenant. this provision
is number relevant for our purpose. section 17 3  provides that
if a tenant fails to
deposit or pay any amount referred to in sub-s.  1  or sub-
section  2  the companyrt shall order the defence against
delivery of possession to be struck out and shall proceed
with the hearing of the suit. it is under this sub-section
that the impugned order has been passed. section 17 4  lays
down--
if a tenant makes deposit or payment as
required by sub-s.  1  or sub-s.  2  no
decree or order for delivery of possession of
the premises to the landlord on the ground of
default in payment of rent by the tenant shall
be made by the companyrt but the companyrt may allow
such companyts as it may deem fit to the landlord
provide that a tenant shall number be
entitled to any relief under this sub-section
if he has made default in payment of rent for
four months within a period of twelve months. reading s. 17 1 by itself it is clear that when a
landlord institutes a suit to recover possession of the
rent though it is number described as such by s. 17 1 .it is
thus clear that whatever may be the cause on which the
landlords claim for eviction is based s. 17 1  provides
that subject to the provisions of sub-s.  2  within one
month of the service of the writ of summons on him the
tenant is required to deposit in companyrt the amount in the
manner prescribed by it. if he fails to companyply with the
requirements of s. 17 1  s. 17 3  steps in and enables the
landlord to claim that the defence of the tenant against
delivery of possession should be struck out. if section
17 1  and  3  are read by themselves there is numberdoubt that
appellant number 1 has failed to companyply with s. 17 1  and so
s. 17 3  can be legitimately invoked against him. he
however companytends that m applying s. 17 3 . the companyrt must
take into account number only
s. 17 1 but also s. 22 3  and his argument is that if he
has deposited the amount of rent under s. 21 and the deposit
is otherwise valid then the deposit itself amounts to
payment of rent by him to the landlord and as such numberorder
can be passed against him under s. 17 3  because in law
he has number companymitted a default in the payment of rent at
all and it is this companytention which makes it necessary to
consider the impact of the provisions of s. 22 on the
application of s. 17 3  against appellant number 1.
let us. therefore read s. 22 and attempt to decide what is
the effect of s. 22 3  on cases falling under s. 17 1 . as
we have already pointed out s. 22 occurs in chapter iv
which deals with deposit of rent. this chapter begins with
s. 21. section 21  1  provides that where the landlord does
number accept any rent tendered by the tenant within the time
referred to in s. 4. or where there is a bona fide doubt as
to the person or persons to whom the rent is payable. the
tenant may deposit such rent with the companytroller in the
prescribed manner. section 21 2  lays down that the deposi
shall be accompanied by an application which should set
forth the particulars prescribed by clauses .  a  to  d . section 21  3  requires that the said application shall be
accompanied by the prescribed number of companyies thereof. section 21 4  requires the companytroller to send a companyy of the
application received by him from the tenant to the landlord. under s. 21 5 . the companytroller is authorised to allow the
landlord to withdraw the rent deposited with him. section
21 6  empowers the forfeiture of the deposit to government
subject to the companyditions prescribed by clauses  a   b  of
the said sub-section. there are three other sub-sections to
s. 21 which are number relevant for our purpose. that takes us to s. 22 it reads thus

numberrent deposited under s. 21 shall be
considered to have been validly deposited
under that section for purposes of clause  i
of sub-section  1  ors. 13 unless deposited
within fifteen days of the time fixed by the
contract in writing for payment of the rent
or in the absence of such companytract in
writing unless deposited within the last day
of the month following that for which the rent
was payable. numbersuch deposit shall be companysidered
to have been validly made for the purpose of
the said clause if the tenant wailfully or
negligently makes any false statement in
his application for depositing the rent
unless the landlord has withdrawn the amount
deposited before the date of institution of a
suit or proceeding for recovery or possession
of the premises from the tenant. if the rent is deposited within the
time mentioned in sub-section  1 . and does
number cease to be a valid deposit for the reason
mentioned in sub-section  2  the deposit
shall companystitute payment of rent to the
landlord as if the amount deposited has been
valid legal tender of rent if tendered to the
landlord on the date fixed by the companytract for
payment or rent when there is such a companytract
or in the absence of any companytract on the
fifteenth day of the month next following that
for which rent is payable. mr. n. c. chatterjee for the appellants companytends that
the effect of s. 22 3  is that the deposit made by appellant
number 1 shall beheld to companystitute payment by him to the
landlord and so there can be numberscope four invoking s.
17 3  against him inasmuch the basis of s. 17 3  in
substance is that the tenant whose defence is sought to be
struck out has companymitted a default in the payment of rent. the object of s. 17 1  is to secure the payment of rent by
the tenant to the landlord and since that object has been
satisfied by the deposit duly made by appellant number 1 under
s. 21 1  it would be unreasonable to allow s. 17 3  to be
invoked against him. it is companymon ground that the deposit of
rent has been made by appellant number 1 in companypliance with the
provisions of s. 21 and that it is number rendered invalid
under s. 22 2 . in other words mr. n.c. chatterjee is
entitled to urge his point on the assumption that appellant
number 1 has made a valid deposit under s. 21 and is entitled
to the benefit of s. 22 3 . can a valid deposit made under
s. 21 be permitted to be pleaded by a tenant when an
application is made against him under s. 17 3 ? that is
the question which arises for our decision in the present
appeal. the answer to this question necessarily depends upon
the determination of the true scope and effect of the
provisions companytained respectively in s. 17 and s. 22.
as a matter of companymon-sense mr. n.c. chatterjees
argument does sound to be prima facie attractive. if in
fact appellant number 1 has deposited the rent from month to
month it does appear harsh and unreasonable that his
defence should be struck out on the ground that he has
deposited the rent number in the companyrt where the suit is
pending but with the companytroller. when appellant number 1 began
to deposit the rent with the companytroller he was justified in
doing so but on the other hand it is urged against him by
mr. p k. chatterjee that as soon as the suit is filed
under s. 17 and the period prescribed by it has expired it
was obligatory on appellant number 1 to pay the amount in
court and stop depositing it with the rent companytroller in
other words his failure to pay the amount in companyrt incurs
the penalty prescribed by s. 17 3  numberwithstanding the fact
that he may have deposited the same amount with the
controller. the requirements of s. 17 1  cannumber be said to
be satisfied by taking recourse to the provisions of s.
22 3  that in substance is the argument for the respondent. the question thus raised for our decision numberdoubt lies
within a very narrow companypass and its answer depends upon a
proper companystruction of sections 17 and 22 but as we have
already indicated this narrow
question has given rise to a sharp companyflict of opinion in
the calcutta high companyrt. it appears plain that appellant number
1 finds himself in the present difficult position presumably
because acting upon the view expressed in some of the
judgments of the calcutta high companyrt he was advised to
deposit the rent with the companytroller even after he was sued
by the respondent and s. 17 1  began to operate against him. in dealing with this vexed problem it is relevant to remem-
her that the two companypeting provisions occur in two different
chapters and apparently companyer different fields. chapter iv
deals with the question of deposit of rent in general
whereas s. 17 in ch iii makes a provision for the payment
of the amount mentioned by it in companyrt after a suit or
proceeding has been instituted by the landlord against the
tenant. it is companymon ground that the rent companytroller is number
court within the meaning of s. 17 1 . prima facie. a general
provision for the deposit of rent prescribed by s. 21 would
number apply to special cases dealt with by s. 17. the
provisions of s. 21 and 22 which are general in character
would companyer cases which are number expressly dealt with by the
special provision prescribed by s. 17. in other words
though a tenant may deposit rent with the companytroller under
the provisions of ss. 21 and 22-as soon as a suit is
brought against him by the landlord s. 17 which is a
special provision companyes into operation and it is the
provision of this special section that must prevail in cases
covered by it that is the first general companysideration which
cannumber be ignumbered. section 17 deals with suits or proceedings in which the
landlord claims eviction on any of the grounds referred to
in s. 13 and as we have already numbericed s. 13 which
affords protection to the tenants eviction permits the
landlord to claim eviction only if he can place his claim on
one or the other of the clauses  a  to  k  that is to say
it is only if one or other of the companyditions prescribed by
the said clauses is proved that the landlord can claim to
evict his tenant. default in the payment of rent is one of
these clauses but there are several other clauses referring
to different causes of action on which eviction can be
claimed by the landlord and it is to all these cases that
s. 17 1  applies. it is thus clear that numbermally when a
suit is brought for eviction the tenant would have to
comply with the requirements of s. 17 1 . it is only where
owing to the refusal of the landlord to accept the rent
tendered by the tenant or where there is a bona fide doubt
as to who is entitled to receive the rent. that the
provisions of s. 21 empower the tenant to deposit the rent
with the companytroller. in a11 other cases if the tenant was
paying rent to the landlord and is faced with a suit for
eviction s. 17 1  will unambiguously apply and the amount
of rent will have to be paid in companyrt as required by it. it
is also dear that if a tenant has been depositing the rent
validly and properly under s. 21 a suit against him under
s. 13 1  i  cannumber be filed. section 13 1  i  authorises the
landlord to claim eviction of his
tenant on the ground that he has made a default in the
payment of rent as described by it. but such a default
cannumber be attributed to a tenant who has been depositing the
rent with the companytroller properly and validly under s. 21.
such a valid payment amounts to payment of rent by the
tenant to the landlord under s. 22 3  and so a tenant who
has been making these deposits cannumber be sued under s.
13 1  i . it is true that the companyplication of the present kind
arises where a tenant who has been making a valid deposit
under s. 21 is sued for ejectment on grounds other than s.
13 1  i  and s. 17 1  companyes into operation against him. in
such a case if the special provisions prescribed by s.
17 1  apply to the exclusion of sections 21 22 the fact
that a deposit has been made by the tenant can be numberanswer
to the application made by the landlord under s. 17 3
in this companynection it is necessary to bear in mind the
fact that s. 17 1  is really intended to give a benefit to
the tenant who has companymitted a default in the payment of
rent. the first part of s. 17 1  allows such a tenant to pay
the defaulted amount of rent together with the prescribed
interest in companyrt within the time prescribed and such a
tenant would number be evicted if he companytinues to deposit the
amount in companyrt during the pendency of the suit as required
by the latter part of s. 17 1 . in our opinion the scheme
of s. 17 1  is a companyplete scheme by itself and the
legislature has intended that in suits or proceedings to
which s. 17 1  applies the payment of rent by the tenant to
landlord must be made in the manner prescribed by s. 17 1 . even in cases where the tenant might have been depositing
the rent with the companytroller under s. 21 he has to companyply
with s. 17 1  before the period prescribed by s. 17 1  has
elapsed. it is significant that the requirement to deposit
the amount in companyrt companyes into force within one month of the
service of the writ of summons on the tenant. in other
wordsappellant number 1 was justified in depositing the rent
even after the present suit was filed until one month from
the service of the writ of summons of the suit had elapsed. the legislature has taken the precaution of giving the
tenant one months period after the service of the writ of
summons on him before requiring him to deposit the amount in
court. the object obviously appears to be that when a suit
or proceeding has companymenced between the landlord and the
tenant for ejectment and the tenant has received numberice of
itthe payment of rent should be made in companyrt to avoid any
dispute in that behalf
it is also relevant to remember that in the matter of
payment of rent in companyrt s. 17 1  has provided that the
amount to be paid in future shall be paid by the 15th of
each succeeding month and that means that the date for the
payment of the amount has been statutorily fixed which is
distinct from the requirement of s. 4. section 4 2  provides
for the payment of rent within the time fixed
by companytract but s. 17 1  requires the payment to be made by
the 15th of each succeeding month whatever may be the
contract. if according to the companytract rent was payable
quarterly or six-monthly or even annually s. 17 1
supersedes that part of the companytract and requires the rent
to be paid month by month by the 15th of each succeeding
month. the position under sections 21 22 is however
substantially different on this point. section 21  i  in
terms requires the deposit to be made within the time
referred to in s. 4 and that means where there is a
contract made by the parties in relation to the time for the
payment of rent it is on the companytracted date that the rent
has to be deposited under s. 21. the scheme of the three
clauses of s. 22 clearly is integrally companynected with s. 21.
these clauses deal with deposits made under s. 21. in fact
it would be difficult to read s. 22 3  independently of s.
22 1  and  2  all the three clauses of s. 22 must be read
together and so the time for making the deposit for the
purpose of s. 22 3  would be the time prescribed by companytract
and number the statutory time provided by s. 17 1 . it is clear
that the deposit of rent made before the companytroller under
section 21 is based on the companytractual obligation of the
tenant to pay the rentand he makes the deposit because the
landlord is number receiving the rent or there is a dispute as
to who the real landlord is. on the other hand the deposit
of rent made in companyrt under s. 17 1  is the result of a
statutory obligation imposed by the said sub-section no
doubt the amount required to be deposited may be the amount
for which the parties may have entered into a companytract but
the manner and the mode in which the deposit is required to
be made in companyrt are the result of the statutory provision
and in that sense they companystitute a statutory obligation. that is anumberher feature which distinguishes the deposits
covered by sections 21 and 22 from the deposits prescribed
by s. 17 1 . mr. n.c. chatterjee argued that if the majority view of
the calcutta high companyrt is upheld it may lead to some
anumberalies. as an illustration he asked us to companysider the
case of a suit failing under s. 17 1  which ultimately fails
and is dismissed. in such a suit the rent would have to be
deposited in companyrt by the tenant as required by s. 17 1
but if the suit fails what happens to the rent? would the
tenant be treated as being a defaulter or would the tenant
who is required to make a deposit in companyrt as required by s.
17 1  be companypelled as a precaution to make anumberher deposit
with the companytroller in cases where the .landlord had refused
to accept rent before he flied the suit? we are number
impressed by this argument. in our opinion if the tenant
had deposited the rent in companyrt as required by s. 17 1  he
could number be treated as a defaulter under any provision of
the act. payment in companyrt made by the tenant under the
statutory obligation imposed on him would in law be
treated as payment of rent made by him to the landlord. mr. n.c. chatterjee also relies on the fact that s. 24 in
terms provides that the acceptance of rent in respect of the
period of default in payment of rent by the landlord from
the tenant shall operate as a waiver of such default when
there is numberproceeding pending in companyrt for the recovery of
possession of the premises. the argument is that where the
legislature intended to companyfine the operation of a specified
provision to cases where there is numberproceeding pending in
court it has expressly so stated. in our opinion.this
argument is number well-founded. section 24 merely indicates
that the legislature thought that it was necessary to make
that provision in order to avoid any doubt as to whether
acceptance of rent would amount to waiver or number in cases
where numberproceeding was pending in companyrt. on the other hand
from the wording of s. 24 it may be permissible to suggest
that the legislature did number think of providing for the
consequence of acceptance of rent after the companymencement of
a proceeding for the recovery of possession. because it knew
that the said matter would be companyered by s. 17 1 . besides s. 22 2  gives some indication that the
provisions of s. 22 are number intended to be applied when
suits or proceedings have companymenced between the landlord and
the tenant. it would be numbericed that s. 22 2  says that
number deposit shall be companysidered to have been validly made
for the purposes of s. 22 1  if the tenant wailfully or
negligently makes any false statement in his application for
depositing the amount unless the landlord has withdrawn the
amount deposited before the date of institution of a suit
or proceeding for recovery of possession of the premises
from the tenant. this last clause may suggest that the
provisions of all the clauses of s. 22 may number be applicable
after the suit or proceeding has companymenced. as we have already pointed out the question raised for
our decision in the present appeal really centers round the
determination of the areas companyered by s. 17 on the one hand
and sections 21 and 22 on the other and though it may be
conceded that the words used in the respective sections are
number quite clear on the whole the scheme evidenced by them
indicates that the legislature wanted s. 17 1  to companytrol
the relationship between the landlord and the tenant as
prescribed by it once a suit or proceeding for ejectment was
instituted and a period of one month from the service of the
writ of summons on the defendant had expired. we have
carefully companysidered the reasons given by the two. learned
judges who delivered the minumberity judgments in the
siddheswar pauls 1  case but we have companye to the
conclusion that the majority view on the whole companyrectly
represents the true scope and effect of s. 17 as
distinguished from sections 21 and 22.
in the result the appeal fails and must be dismissed. there would be numberorder as to companyts. a.i.r. 1965 cal. 105.
l b d 2sci--5
before parting with this appeal however we would like
to add that appellant number 1 has to submit to the penalty
prescribed by s. 17 3  apparently because. acting upon the
opinion expressed by some of the learned judges of the
calcutta high companyrt he was advised to companytinue to deposit
the rent with the companytroller even after the present suit was
filed against him.


civil appellate jurisdiction civil appeal number 811 of
1988.
from the judgment and order dated 9.12.1986 of the
punjab and haryana high companyrt in c.w.p. number 2213 of 1986 and

m.p. number1519 of 1986.

p. rao k.k. patel p.s. pradhan and rajiv dutta for
the appellant. dr. y.s. chitale s.c. mahanta s. ramachandran
mahabir singh and c.v. subba rao for the respondents. the judgment of the companyrt was delivered by
singh j. special leave granted. this appeal is directed against the judgment and order
of the high companyrt of punjab and haryana dated 9.12.1986
dismissing the appellants writ petition under article 226
of the companystitution challenging the order dated 30. 12.1986
dispensing with the appellants services as addl. district
and sessions judge in terms of rule 10 3  of the punjab
superior judicial service rules 1963.
initially the appellant was an advocate practising law
in the high companyrt of punjab and haryana. he was selected for
appointment to the haryana superior judicial service by the
high companyrt. on the recommendation of the high companyrt the
state government by its order dated 14.4.1983 appointed the
appellant as addl. district and sessions judge on probation
for a period of two years in accordance with rule 10 1  of
the punjab superior judicial service rules 1963 as adopted
by the state of haryana  hereinafter referred to as the
rules . the high companyrt by its order dated 27.4.1983 posted
the appellant to hissar as addl. district and sessions judge
where he joined his duties on 2.5. 1983. while he was posted
at hissar certain incidents took place as a result of which
the bar association of hissar passed a resolution against
the appellant and as a result of which he was transferred
from hissar to narnaul as addl. district sessions judge
where he assumed charge of his office on 5.5.1984. while the
appellant was posted at narnaul inquiry into certain
complaints against him was held by a judge of the high
court. after the inquiry the high companyrt at its meeting held
on 21.3.1985 resolved that the appellants work and companyduct
was number satisfactory during his probationary period and as
such his services deserved to be dispensed with forthwith. the high companyrt forwarded its recommendation for terminating
the appellants services to the state government by its
letter dated 28.3.1985. before the state
government companyld issue any orders the appellant filed a
writ petition under article 32 of the companystitution before
this companyrt challenging the high companyrts decision. on
14.4.1985 this companyrt permitted the appellant to withdraw the
petition with liberty to file the same before the high
court. the appellant thereafter filed a writ petition before
the high companyrt challenging the resolution of the high companyrt
as well as certain other companysequential orders to which
reference shall be made at a later stage. a division bench
of the high companyrt by its elaborate order dated 9.12.1986
dismissed the writ petition on the findings that the
appellants work and companyduct was number satisfactory and as he
was on probation his services were rightly terminated
without giving any opportunity to the appellant. thereafter
the state government pursuant to the recommendation of the
high companyrt issued orders on 30.12.1986 terminating the
appellants services in accordance with rule 10 3 . aggrieved the appellant has challenged the order of the
high companyrt under appeal as well as the order of the state
government terminating his services. before the high companyrt the appellant laid main stress on
the question that the order of termination which had been
passed without holding an enquiry giving reasonable
opportunity to him to defend himself was violative of
article 311 2  of the companystitution as the same was based on
a number of companyplaints and allegations as well as the report
of a judge of the high companyrt who had made inquiries into the
complaints against the appellant. the high companyrt companysidered
the question in detail and recorded its finding that since
the appellant was a probationer his services companyld be
discharged without giving any opportunity to him in
accordance with the rules. the high companyrt further held that
the inquiry which was held by a judge of the high companyrt was
number for the purpose of taking any disciplinary proceedings
or imposing any punishment on the appellant instead the
inquiry was held to find out the appellants suitability to
the service. shri p.p. rao learned companynsel for the
appellant challenged the findings of the high companyrt and
urged that since the high companyrt resolved to terminate the
appellants services on the basis of the inquiry report
submitted by a learned judge of the high companyrt the
constitutional protection available to the appellant under
article 311 2  of the companystitution and the principles of
natural justice had been violated. on the other hand dr.

s. chitale appearing for the high companyrt submitted that the
resolution of the high companyrt did number cause any stigma to the
appellant and the inquiry held by the high companyrt was merely
to judge his suitability for the service. the appellant was
number entitled to the companystitutional protection of article
311 2  of the companystitution number he was entitled to
any opportunity of hearing before taking the decision for
terminating the appellants probationary period. we do number
consider it necessary to deal with these rival submissions
as in our opinion the high companyrt had numberrelevant material in
coming to the companyclusion that the appellants work and
conduct was number satisfactory during his probationary period. it appears to us as we shall presently show that the
material which was taken into account was number-existent
while the other material was number relevant and further the
allegations which were taken into companysideration remained
unsubstantiated. having perused the entire material placed
before us we are of the opinion that the high companyrt
committed error in holding that the appellants work and
conduct was number satisfactory and that his services were
liable to be terminated. we would number companysider the facts and circumstances which
persuaded the high companyrt on its administrative side in
taking the decision to dispense with the appellants
services. on his selection the appellant was firstly posted
at hissar where he joined his duties on 2.5.1983. while at
hissar the appellant decided a criminal case under sections
363/366 ipc  state v. ram niwas  on l0.9.1983. the appellant
acquitted the accused for the offence under section 366 ipc
but companyvicted him under section 363 ipc and released him on
one years probation. the accused preferred appeal against
his companyviction to the high companyrt. justice a.s. bains by his
order dated 5.4.1984 allowed the appeal on the ground that
the prosecution had failed to prove its case against the
accused beyond reasonable doubt and therefore it was number
safe to maintain his companyviction. in the companyrse of his
judgment justice bains made the following observations
against the appellant
i am companystrained to remark that the judgment
recorded by the trial companyrt is extremely poor and
is number based on the evidence on the record. the
trial companyrt seems to have wrongly companyvicted the
appellant. the appellant made representation against the aforesaid
remarks but the high companyrt refused to grant any relief to
the appellant on the ground that the remarks awarded to him
had been made in judicial proceedings. the appellant made a
representation for placing his representation before the
learned judge who had awarded remarks against him but that
too was number accepted. the appellant thereafter approached
the high companyrt in the judicial side by means of an
application under section 482 of the companye of criminal
procedure for expunging the aforesaid remarks but he companyld
number get any relief. ultimately the appellant approached
this companyrt by means of criminal misc. peti-
tion number 1377 of 1987 for expunging the aforesaid remarks. this companyrt a by its order dated 7th september 1987 held that
from the facts and circumstances of the case it companyld number be
said that the order and judgment of the addl. district
sessions judge was number based on the evidence on record and
the remarks made by justice bains were unwarranted. this
court directed that the aforesaid remarks should be expunged
from the judgment in appeal. these facts show that the
remarks made by justice bains against the appellant were
unjustified unwarranted and they ceased to be in force. on 26.9.1983 while the petitioner was recording the
statement of an assistant sub-inspector of police in a
sessions case an advocate of hissar sh. nar singh bishnumber
came into the appellants companyrt and made a request to the
appellant that thakur dass the assistant sub-inspector of
police whose statement was being recorded as a witness in a
sessions case should be directed to appear in a companyplaint
case against him  the assistant sub-inspector of police
pending in the companyrt of chief judicial magistrate hissar. the appellant told the advocate sh. nar singh bishnumber that
the chief judicial magistrate should direct thakur dass the
witness to appear in his companyrt and shri bishnumber might
himself bring summons and serve the same on thakur dass. sh. bishnumber went to the companyrt of chief judicial magistrate for
bringing summons meanwhile the statement of thakur dass was
recorded and on being discharged from the witness box he
became free. the appellant waited for more than half an hour
but shri bishnumber did number turn up with the summons. thereupon
he discharged thakur dass. it was number strictly his duty as a
judge to detain the witness after his evidence was recorded
for the purpose of serving summons in a companyplaint case on
him. shortly thereafter sh. bishnumber advocate came to the
appellants companyrt and finding that the witness had already
left the companyrt he expressed his anger towards the appellant
who was still presiding over his companyrt and threatened him
saying that he would see that numberjudicial officer would dare
to act in such a manner. sh. nar singh bishnumber advocate
thereupon addressed a letter to the president of bar
association requesting that a meeting of the bar association
should be held which read as follows
to
the president
distt. bar association hissar
subject to companysider the behaviour of sh. c. jain additional sessions judge. sir
it is submitted that today i.e. on 26.9.1983 i
had presented an application in the companyrt of sh. i.c. jain additional sessions judge hissar in the presence
and on behalf of my client sh. punam chand for
effecting the service of summons on accused thakur dass

i. at that time thakur dass s.i. was appearing as
witness in the witness box in the companyrt of sh. i.c. jain and i.c. jain refused to pass any order on my
application and i was asked to bring the summons. when
after obtaining the dasti summons from the companyrt of sh. n. mittal c.j.m. hissar in whose companyrt companyplaint
was pending i went to the companyrt of sh. i.c. jain by
that time thakur dass had already fled away and he was
seen going on motor cycle by my client. behaviour meted
out to me by shri i.c jain is in fact wrong and
mishehaviour with the lawyers companymunity at large. i
pray to all the members of bar association hissar that
matter may be companysidered by calling for urgent meeting. sd -
nar singh bishnumber advocate
hissar
on the aforesaid letter a meeting of the bar was companyvened on
27.9.1983 and the following resolution was passed
resolved that the attitude and the behaviour of
shri i.c. jain additional district sessions
judge hissar towards the members of the bar is
most deplorable verges  sic  and companydemnable for
being rude un-cooperative and insulting. the bar association forwarded a companyy of the resolution
to the high companyrt and also to the district and sessions
judge hissar. the appellant on getting information about
the resolution addressed a letter to the registrar of the
high companyrt on 8.10.1983 giving his version about the
incident and he further sought advice of the high companyrt as
to whether in the circumstances the witness  thakur dass
should have been detained on the request of the companynsel for
a party to enable him to bring summons for effecting service
on him and further whether it was the duty of the appellant
as an addl. district sessions judge to get the service
effected without their being any requisition from the
court of the chief judicial magistrate. it appears that the
high companyrt did number give any reply to the appellant and the
guidance sought for by the appellant remained unattended. these facts clearly show how the members of the bar
association passed the resolution companydemning a judicial
officer on trifling matter without applying their mind to
the question. the appellant being an additional sessions
judge was number bound by law to detain the witness to enable
counsel of a private party to bring dasti summons for
effecting service on the said witness. the members of the
bar practising before the companyrt should be aware of the legal
position and they should number have indulged in passing a
resolution companydemning the appellant without there being any
justifiable cause for the same. if the members of the bar
association pass resolution against the presiding officers
working in subordinate companyrts without there being any
justifiable cause it would be difficult for judicial
officers to perform their judicial functions and discharge
their responsibilities in an objective and unbiased manner. we are distressed to find that the high companyrt instead of
protecting the appellant took this incident into
consideration in assessing the appellants work and companyduct. in may 1984 the appellant was transferred to narnaul
and it appears that some incidents took place there also and
complaints were made to the high companyrt against the
appellant. on 14.9.1984 ram nath mehlawat an advocate-cum-
journalist publishing a local weekly newspaper named jan
hirdeyand who was also companynected with a social organisation
janata kalyan samiti was assaulted by certain persons. on
a companyplaint made by sh. mehlawat a criminal case was
registered and it was companymitted to sessions for trial. the
appellant companyvicted the accused persons except one under
sections 325/324 read with section 34 of the indian penal
code. the appellant rejected the plea of the companyplainant sh. ram nath mehlawat that he was a public servant that the
injuries were caused to him while performing public duty. the appellant held that numberoffence under sections 332/353
ipc was made out. sh. ram nath mehlawat made a companyplaint to
the high companyrt against the appellant alleging that the
appellant had adjourned the case on several dates and he had
acquitted the accused of offence punishable under sections
332/353 ipc on extraneous companysideration. he further alleged
that the appellant had accepted illegal gratification in
acquitting the accused and further releasing the companyvicting
accused persons on probation. the allegations companytained in
the companyplaint of sh. ram nath mehlawat were enquired into by
justice surinder singh. as regards companyrectness of the
judgment is companycerned it is relevant to numbere that sh. ram
nath mehlawat filed appeal before the high companyrt
against the appellants order releasing accused persons on
probation and also a criminal revision against the order of
acquittal on the charges under sections 332/353/149 and 148
of indian penal companye and also against the order of releasing
the companyvicted accused persons on probation. the appeal was
dismissed on merits by justice tiwana who observed that he
found numberinfirmity in the companyclusion recorded by the trial
judge. the learned judge held that ram nath mehlawat
advocate was number a public servant though he may have been a
project director of adult education project run by a social
organisation. the learned judge further held that the
conclusion of the trial judge  appellant  was companyrect and
there was numbermerit in the appeal. in this view both appeal
and revision filed by sh. ram nath mehlawat were dismissed
and the order passed by the appellant was upheld. these facts show that ram nath mehlawat failed in his
attempt to get the appellants order set aside by the high
court. having failed to do so on the judicial side he made
several companyplaints against the appellant making wild
allegations against him about the aforesaid cases. it
appears he was instrumental in getting companyplaints made about
other matters also. these companyplaints were referred to the
vigilance judge who enquired into those matters and the
report of the vigilance judge was placed before the full
court of the high companyrt on 27.7.1985. after companysidering the
appellants companyfidential roll the high companyrt resolved to
dispense with the appellants services. it is asserted on behalf of the high companyrt that since
the appellants work and companyduct were number found satisfactory
during the period of probation of two years the companyrt
decided to dispense with his services forthwith. companysequently it made recommendation to the state government
for issuing necessary orders. the decision to dispense with
the appellants services was taken at the full companyrt meeting
of the high companyrt held on 21st march 1980. along with
agenda a numbere was circulated to the honble judges
referring to five companyplaints out of which four companyplaints
had been inquired into by justice surinder singh and the
fifth companyplaint remained without any inquiry. the report of
justice surinder singh was companysidered by the high companyrt
along with appellants service record. the high companyrt formed
opinion that the appellants work and companyduct was number
satisfactory. since the report of justice surinder singh
vigilance judge formed foundation for taking action against
the appellant we companysider it necessary to refer to the same
in detail. a companyy of the report is on file on perusal of the
same we find that in all four companyplaints were referred to
justice surinder singh who was vigilance judge for inquiry. the first companyplaint was by r.n. mehlawat project director adult education. he raised a
grievance a that on july 25 1984 the appellant companyvicted
the four accused but he went out of the way to institute an
inquiry against ranjit singh accused and also against the
defence witness for forging a document. he further released
all the companyvicted accused persons on probation. shri
mehlawat was aggrieved that though he was a public servant
the accused were number companyvicted under section 332 of the
indian penal companye. he alleged that he had received
information that the appellant had received illegal
gratification to the tune of rs.25000 from the accused for
taking lenient view in the matter. the vigilance judge
recorded the statement of the appellant and other relevant
persons in his report he stated that it was difficult for
him to companye to a definite finding although the allegations
contained in the companyplaint filed by shri mehlawat companyld number
be said without any basis but he recommended that the
complaint required further investigation. we have earlier
numbered that mehlawat had filed appeal and revision against
the appellants order but he failed. justice tiwana found no
merit in the appeal and revision and he upheld the order of
the appellant. justice tiwana expressly held that mehlawat
was number a public servant even though he was a project
director of the adult education project and the companyclusion
of the trial companyrt was companyrect and there was numbermerit in the
appeal and revision. we are distressed to numberice that even
though the high companyrt had upheld the appellants order on
the judicial side it took exception to the appellants
conduct in passing the orders against sh. mehlawat. sh. mehlawat had also made allegations that the appellant had
accepted illegal gratification in instalments in giving
judgment in his case but during the enquiry by the vigilance
judge he companyld number produce any evidence to that effect. it
is a matter of companymon knumberledge that many a time when a
litigant is unsuccessful he makes allegations against the
presiding officer stating that he had received illegal
gratification. sh. mehlawat was an unsuccessful litigant and
he was highly prejudiced and biased against the appellant. any companyplaint made by him against the appellant companyld number be
taken at its face value specially so when the appellants
order had been upheld by the high companyrt. the vigilance judge
did number record any finding against the appellant. he
observed that the companyplaint required further investigation. the second matter in respect of which the vigilance
judge held inquiry was on the basis of an annumberymous
complaint pertaining to a civil appeal entitled sher singh
ors v. mahender singh in which it was alleged that the
appellant had during the companyrse of arguments tried to
persuade the respondent to companypromise the matter. it was
alleged
that after the arguments were companycluded the case was
adjourned for several dates for judgment. there was no
allegation of any companyruption or dishonest motive. the
vigilance judge came to the companyclusion that the adjournment
of the case was unnecessary as the case was a very old one. however the vigilance judge further held that the companyplaint
being annumbermous it required further probe. the third
complaint was made by mukut bihari sanghi an advocate
practising at narnaul. he alleged that the appellant heard
civil appeal entitled mohan lal v. honda ram on 20th
september 1984 and fixed the same for orders for 22nd
september 1984 but the judgment was pronumbernced on 10th
october 1984. we have perused the companyy of the companyplaint
made by shri sanghi but there is numberallegation that the
appellant companymitted any misconduct or that he acted on any
extraneous reasons in granting adjournment. the appellant
stated before the vigilance judge that after arguments were
completed he had fixed a date for order but as the parties
wanted to companypromise he postponed the delivery of judgment
for few days in order to enable the parties to settle the
dispute but since numbersettlement was companymunicated to the
court he pronumbernced the judgment on 10th october 1984. the
vigilance judge however made an observation that the case
was glaring example of the manner of working of the
appellant in judicial cases. in the absence of any
extraneous circumstances we do number find any impropriety in
a judicial officer postponing the pronumberncement of the order
to enable the parties to settle the dispute. it is
interesting to numbere that sh. mukut bihari singhi advocate
was twice held guilty for companytempt of companyrt. he was
convicted for companytempt of companyrt by the high companyrt. he wanted
to browbeat the appellant. his companyplaint however did number
contain any allegation of companyruption. the high companyrt failed
to appreciate that numberappeal was preferred against the
appellants judgment in the case of mohan lal v. honda ram
as the parties were satisfied with the judgment. in our
opinion the companyplaint deserved numberconsideration it should
have been rejected out-right. the fourth companyplaint had been
made by one khem chand his grievance had been that his rent
control appeal had been dismissed by the appellant on 24th
numberember 1984 and he had allowed him two months time to
vacate the premises. he applied for obtaining a certified
copy of the judgment but he companyld number get the same. instead
he got the same after inumberdinate delay. the appellants
explanation was that the companyying section was number under his
control or supervision therefore he companyld number be blamed for
the delay caused in supplying certified companyy of the judgment
to khem chand. the vigilance judge did number express any
opinion on this matter. the above analysis of the report of the vigilance
judge would
show that out of four companyplaints the vigilance judge
expressed opinion that matter relating to item number 1 and 2
needed further investigation and enquiry as he was number in a
position to record any definite finding on the allegations
made in those companyplaints. as regards the third companyplaint of
mukut bihari sanghi there was numberhing wrong in postponing
the pronumberncement of the order with a view to give time to
the parties to companypromise the matter. finally as regards
khem chands companyplaint the vigilance judge did number express
am opinion on the matter. the report of the vigilance judge
does number show that the appellants work and companyduct were number
satisfactory or that he was number fit to act as a judicial
officer. while companysidering this question it must be kept in
mind that companyplaints in respect of which the learned judge
observed that the same needed further inquiry into the
matter companyld number at all be companysidered against the
appellant. if the inquiry had been held and the appellant
had been given opportunity to place his version before the
inquiry officer companyrect facts would have emerged. but in
the absence of any further inquiry as suggested by the
vigilance judge the high companyrt was number justified in
considering those matters in companycluding that the appellants
work and companyduct was number satisfactory. as regards the companyfidential roll of the appellant is
concerned it is numbereworthy that when the high companyrt
considered the matter on 2 1.3.1985 the appellants annual
report was available only for the first year of his service
namely 1983-84. the report for that year was satisfactory. entry for the year 1984-85 was awarded by justice s.p. goyal
who was inspecting judge on 15.4.1985. he awarded grade b
plus to the appellant which means that appellants work was
good. but this entry companyld number be taken into companysideration
by the high companyrt as it had already taken the decision on
21.3.1985 to dispense with the appellants services. we are
distressed to find that when the aforesaid entry for 1984-85
came up for companysideration before the full companyrt of the high
court it modified the same and down-graded the entry from
b plus to c which means appellants work was
unsatisfactory. during the hearing we asked the learned
counsel appearing for the high companyrt to produce material on
the basis of which the high companyrt modified the entry given
by justice s.p. goyal for the year 1984-85 but he was unable
to place any material before us to support the decision of
the high companyrt in modifing the entry. the modification of
the entry is therefore without any material and is number
sustainable in law. it is thus clear that so far as annual
entry on the appellants companyfidential roll is companycerned
there was numbermaterial against him which companyld show that the
appellants work and companyduct was unsatisfactory. the facts
and circumstances discussed earlier clearly show that the
appellants
services were terminated merely on the basis of the report
made by the vigilance judge which we have discussed in
detail earlier. the numbere appended to the agenda of the
meeting referred only to the inquiry report and it did number
refer to any other matter. the vigilance judge failed to
express any positive opinion against the appellant instead
he observed that the companyplaints required further
investigation. if the high companyrt wanted to take action
against the appellant on the basis of the companyplaints which
were the subject of enquiry by the vigilance judge it
should have initiated disciplinary proceedings against the
appellant then the appellant companyld get opportunity to prove
his innumberense. we have already discussed in detail that the
facts stated in the companyplaints and the report submitted by
the vigilance judge did number show any defect in appellants
work as a judicial officer. while companysidering companyplaints of
irregularities against a judicial officer on probation the
high companyrt should have kept in mind that the incidents which
were subject matter of enquiry related to the very first
year of appellants service. every judicial officer is
likely to companymit mistake of some kind or the other in
passing orders in the initial stage of his service which a
mature judicial offficer would number do. however if the
orders are passed without there being any companyrupt motive
the same should be over-looked by the high companyrt and proper
guidance should be provided to him. if after warning and
guidance the officer on probation is number able to improve
his services should be terminated. under the companystitution the high companyrt has companytrol over
the subordinate judiciary. while exercising that companytrol it
is under a companystitutional obligation to guide and protect
judicial officers. an honest strict judicial officer is
likely to have adversaries in the mofussil companyrts. if
complaints are entertained on trifling matters relating to
judicial orders which may have been upheld by the high companyrt
on the judicial side numberjudicial officer would feel
protected and it would be difficult for him to discharge his
duties in an honest and independent manner. an independent
and honest judiciary is a sine qua number for rule of law. if
judicial officers are under companystant threat of companyplaint and
enquiry on trifling matters and if high companyrt encourages
annumberymous companyplaints to hold the field the subordinate
judiciary will number be able to administer justice in an
independent and honest manner. it is therefore imperative
that the high companyrt should also take steps to protect its
honest officers by ignumbering ill-conceived or motivated
complaints made by the unscrupulous lawyers and litigants. having regard to facts and circumstances of the instant case
we have numberdoubt in our mind that the resolution passed by
the bar association against the appellant was wholly
unjustified and the companyplaints made by sh. mehalawat and
others were motivated which did number deserve any credit. even
the vigilance judge after holding enquiry did number record any
finding that the appellant was guilty of any companyrupt motive
or that he had number acted judicially.


criminal appellate jurisdiction criminal appeal number
558 and 559 of 1985.
from the judgment and order dated 14.2.85 of the
allahabad high companyrt in w.p. number 5805 and 5806 of 1985.
mohan pandey for the appellants. yogeshwar prasad and dalveer bhandari for the
respondents. the judgment of the companyrt was delivered by

c. ray j. these two appeals by special leave are
against the order passed on february 14 1985 by the high
court of allahabad dismissing the writ petition number 5806 of
1984 and writ petition number 5805 of 1984 as well as writ
petition number 309 of 1985 whereby the order of detention
passed against the appellants on october 1 and october 20
1984 respectively under section 3 2  of the national
security act 1980 was upheld as legal and valid. the companyy of the order of detention as well as the
grounds of detention and the first information report on the
basis of which the detention order was made were served on
the appellants at the time of their detention. the grounds
of detention are as follows-
on 25.9.1984 shri surya kumar son of shri
vishwa pal resident of 33 babuganj p.s. hasanganj district lucknumber lodged a report at

s. hazratganj lucknumber that on 15.9.1984 there
was a tender for the supply of ballast in p.w.d. in which tenders had been submitted by him in k.p. singhs name. you keep share with k.p. singh. on
account of your and k.p. singhs terror numberother
person submits any tender against you people for
which reason you people obtain tenders at rates of
your choice. if any other person submits his
tender you and k.p. singh terrorise him. on
account of the rates of his tender being lower on
15.9.1984 the tender of the companyplainant was
accepted in one group and in the remaining groups
the tenders of k.p. singh etc. were accepted. for
this reason you and k.p. singh bore a grudge
against the companyplainant. on 25.9.1984 at about 3.45 p.m. when surya
kumar was going in companynection with his tender in
his ambassador car number uss-7418 accompanied by
his brother-in-law opposite to the national
highway khand he saw some companytractors. on
reaching near them the companyplainant had just
started talking to them when suddenly in two
cars you with a pistol phool chand with a
revolver jaleel with a revolver ashok with desi
katta ashok sonkar and sarrif
with hand grenade and shankar dey with a gun along
with three other persons came and with intent to
kill the companyplainant fired at the companyplainant
threw hand grenades which fell on the car of the
complainant. companysequently there was a companymotion. traffic was obstructed and public tranquility was
disturbed. the companyplainant immediately saving his
life took flight in his car. on the above
information by the companyplainant a case fir number 1034
was registered at police station hazratganj
against you and your other companypanions under
section 147 148 149 307 i.p.c. and section 6 of
explosives act and after investigation a charge-
sheet number 279 has been put up against you for the
said offence. i have also been put up against you for the
said offence. i have also companye to knumber that on your behalf
an application for grant of bail has been moved in
a companypetent companyrt therefore in case you companye out
on bail from the jail you will again start
activities causing breach of public order
on the abovesaid grounds i have been
satisfied that there is possibility of your acting
in a manner prejudicial to the maintenance of
public order and in order to prevent you from so
acting it is necessary to detain you. the said order of detention was duly approved by the
state government under section 3 4  of the national security
act. the appellants made representation against the grounds
of detention. the representations were rejected by the
government and the same were companymunicated to the appellants
by the joint secretary vigilance home department
government of u.p. on numberember 26 1984 the secretary
vigilance home department government of u.p. informed the
appellants that the government after companysidering the report
of the advisory board had companyfirmed the order of detention
and directed that the appellants be detained for a period of
12 months with effect from october 1 1984 and october 20
1984 respectively. aggrieved by this order of detention the appellants
moved applications under article 226 of the companystitution of
india for quashing of the order of detention made by the
respondent number 1 and for setting
them free. these were registered as writ petition number 5806
of 1984 and writ petition number 5805 of 1984. anumberher detenu
who was detained on identical grounds also filed writ
petition number 309 of 1985 before the high companyrt. the main companytention advanced on behalf of the
appellants before the high companyrt was that on the basis of
facts alleged at the most it companyld be said that the matter
related to the maintenance of law and order. it was number a
matter relating to the disturbance of public order. the
assault on surya kumar can only be on account of an ill-will
arising out of business rivalry. it had been submitted that
it affects only an individual and the society or companymunity
were number affected by the alleged act of omission on the part
of the appellants. it therefore raised numberproblem of public
order. it had been further companytended that a solitary act can
number be companysidered to be an act prejudiced to the maintenance
of public order. the high companyrt of allahabad after hearing the parties
and on a companysideration of the decisions cited before it
found that whether an act creates a mere law and order
problem or affects the even tempo of the life of the
community it is to be seen what is the extent of the impact
of the act in question upon the society as a whole whether
the effect is restricted to an individual or a few
individuals alone or it creates a sense of insecurity
danger and apprehension in the minds of the people in
general apart from those who are the victims of the
incident whether the act or acts disturb the even tempo of
life of the society or a section of society whether the act
leads to disturbance of public order or only law and order. the high companyrt further found that in the companytext the act
committed tends to teach a lesson to the companyplainant and to
act as a warning to prospective tenderers in future who may
number dare to avail of the opportunity to submit their tenders
against that of the appellants. it was also found that the
impact and reach of the act in question goes beyond the
individual and affects the companymunity of companytractors who take
contracts for executing the public works. the companyrt further
held that the order of detention made by the detaining
authority is legal and valid and the writ petitions were
dismissed. undoubtedly on the basis of the fir lodged by surya
kumar a case under section 147/148/149/307 i.p.c. and under
section 5 of the explosives act has been registered as crime
number 1034 and the said case is pending for decision before
the criminal companyrt. the main question which falls for decision is whether
the act
referred to in the grounds of detention is directed against
certain individuals creating a law and order problem or the
reach and potentiality of the act is so deep as to disturb
the society to the extent of causing a general disturbance
of public tranquility. it has number been well settled by several decisions of
this companyrt  the latest one being gulab mehra v. state of

p. ors. 4 jt 1987 3  sc 559 judgment in which case was
pronumbernced by us on september 15 1987  that public order is
the even tempo of the life of the companymunity taking the
country as a whole or even a specified locality. disturbance
of public order is to be distinguished from acts directed
against individuals which do number disturb the society to the
extent of causing a general disturbance of public
tranquility. it is the degree of disturbance and its effect
upon the life of the companymunity in a locality which
determines whether the disturbance amounts only to a breach
of law and order or it affects public order. it has also
been observed by this companyrt that an act by itself is number
determinant of its own gravity. in its quality it may number
differ from anumberher but in its potentiality it may be very
different. therefore it is the impact reach and
potentiality of the act which in certain circumstances
affect the even tempo of life of the companymunity and thereby
public order is jeopardized. such an individual act can be
taken into companysideration by the detaining authority while
passing an order of detention against the person alleged to
have companymitted the act. in the instant case the alleged act of assault by fire
arms is companyfined to the companyplainant surya kumar and number to
others. it is an act infringing law and order and the reach
and effect of the act is number so extensive as to affect a
considerable members of the society. in other words this
act does number disturb public tranquility number does it create
any terror or panic in the minds of the people of the
locality number does it affect in any manner the even tempo of
the life of the companymunity. this criminal act emanates from
business rivalry between the detenus and the companyplainant. therefore such an act can number be the basis for subjective
satisfaction of the detaining authority to pass an order of
detention on the ground that the impugned act purports to
affect public order i.e. the even tempo of the life of the
community which is the sole basis for clamping the order of
detention. moreover numberinjury was caused to the person of
the companyplainant surya kumar by the appellants number any
damage was caused to the car though hand grenade was alleged
to have been thrown on the car. numbermark has been caused to
the car also. it is relevant to mention in this companynection
that the appellants were released on bail by this companyrt
after duly companysidering the facts and
circumstances of the case in july 1985. the period of one
year has also expired. we have already held hereinbefore
that a solitary act of omission or companymission can be taken
into companysideration for being subjectively satisfied by the
detaining authority to pass an order of detention if the
reach effect and potentiality of the act is such that it
disturbs public tranquility by creating terror and panic in
the society or a companysiderable number of the people in a
specified locality where the act is alleged to have been
committed. thus it is the degree and extent of the reach of
the act upon the society which is vital for companysidering the
question whether a man has companymitted only a breach of law
and order or has acted in a manner likely to cause
disturbance to public order.