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Thursday, March 31, 2016

The respondent, Uttaradi Mutt, filed O.S. No.193/1992 in the Court of Civil Judge, Koppal but in due course the said suit was transferred to the Court of Additional Civil Judge, Gangavati and was registered as O.S. No.74/2010. The suit was filed by the plaintiff- respondent for the relief(s) for perpetual injunction for restraining the defendant-Mutt, its agents, servants, devotees, etc., from entering upon the suit schedule property or interfering with its possession and enjoyment of the suit property and/or interfering or disturbing with the performance of annual “Aradhana” of His Holiness Sri Padmanabha Teertharu, Sri Kavindra Teertharu and Sri Vageesha Teertharu. The suit preferred by the plaintiff was dismissed.Order XLI Rule 5 reads as follows:- “5. Stay by appellate court.—(1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the appellate court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the appellate court may for sufficient cause order stay of execution of such decree. Explanation : An order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the court of first instance, but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the Appellate Court shall, pending the receipt from the Appellate Court of the order for the stay of execution or any order to the contrary, be acted upon by the court of first instance. | | | | | | (2) Stay by court which passed the decree.—Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the court which passed the decree may on sufficient cause being shown order the execution to be stayed. (3) No order for stay of execution shall be made under sub-rule (1) or sub- rule (2) unless the court making it is satisfied— (a) that substantial loss may result to the party applying for stay of execution unless the order is made; (b) that the application has been made without unreasonable delay; and (c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. (4) Subject to the provisions of sub-rule (3), the court may make an ex parte order for stay of execution pending the hearing of the application. (5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of Rule 1, the court shall not make an order staying the execution of the decree.” Order XLII Rule 1 that occurs under the Heading “Appeals From Appellate Decrees” is as follows:- “1. Procedure.— The rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees.” 22. In this context, it is useful to refer to Order XLII Rule 2 which has been inserted by Act 104 of 1976 with effect from 01.02.1977. It provides as under:- | | | |“2. Power of court to direct that the appeal be heard on the | | |question formulated by it.— At the time of making an order| | |under rule 11 of Order XLI for the hearing of a second appeal,| | |the court shall formulate the substantial question of law as | | |required by section 100, and in doing so, the court may direct| | |that the second appeal be heard on the question so formulated | | |and it shall not be open to the appellant to urge any other | | |ground in the appeal without the leave of the court, given in | | |accordance with the provision of section 100.” |Order XLI Rule 5 confers jurisdiction on the High Court while dealing with an appeal under Section 100 CPC to pass an ex parte order and such an order can be passed deferring formulation of question of law in grave situations. Be it stated, for passing an ex parte order the Court has to keep in mind the postulates provided under sub-rule (3) of Rule 5 of Order XLI. It has to be made clear that the Court for the purpose of passing an ex parte order is obligated to keep in view the language employed under Section 100 CPC. It is because formulation of substantial question of law enables the High Court to entertain an appeal and thereafter proceed to pass an order and at that juncture, needless to say, the Court has the jurisdiction to pass an interim order subject to the language employed in Order XLI Rule 5(3). It is clear as day that the High Court cannot admit a second appeal without examining whether it raises any substantial question of law for admission and thereafter, it is obliged to formulate the substantial question of law. Solely because the Court has the jurisdiction to pass an ex parte order, it does not empower it not to formulate the substantial question of law for the purpose of admission, defer the date of admission and pass an order of stay or grant an interim relief. That is not the scheme of CPC after its amendment in 1976 and that is not the tenor of precedents of this Court and it has been clearly so stated in Ram Phal (supra). Therefore, the High Court has rectified its mistake by vacating the order passed in IA No. 1/2015 and it is the correct approach adopted by the High Court. Thus, the impugned order is absolutely impregnable. 24. Having so concluded, we would have proceeded to record dismissal of the appeal. But in the obtaining facts and circumstances, we request the High Court to take up the second appeal for admission and, if it finds that there is a substantial question of law involved, proceed accordingly and deal with IA No. 1/2015 as required in law. Needless to say, the interim order passed by this Court on earlier occasion should not be construed as an expression of any opinion from any count. It was a pure and simple ad interim arrangement. 25. Resultantly, the appeal, being sans substance, stands dismissed with no order as to costs.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.3190 OF 2016
              (Arising out of S.L.P. (Civil) No. 6662 of 2016)


Raghavendra Swamy Mutt                            …Appellant

                                   Versus

Uttaradi Mutt                                           ...Respondent

                               J U D G M E N T
Dipak Misra, J.
      The  present  appeal,  by  special  leave,  assails  the  order  dated
11.02.2016 passed  by  the  learned  Single  Judge  of  the  High  Court  of
Karnataka at Dharwad in I.A. No.1 of 2016 in RSA No.100446 of  2015  whereby
he has vacated the interim order dated 16.12.2015 passed  in  I.A.  No.1  of
2015.
2.    The facts for the purpose of adjudication of the present appeal   need
to  be  stated  in  brief.   The  respondent,  Uttaradi  Mutt,  filed   O.S.
No.193/1992 in the Court of Civil Judge, Koppal but in due course  the  said
suit was transferred to the Court of Additional Civil Judge,  Gangavati  and
was registered as O.S. No.74/2010.  The suit was  filed  by  the  plaintiff-
respondent for the relief(s) for perpetual injunction  for  restraining  the
defendant-Mutt, its agents, servants, devotees,  etc.,  from  entering  upon
the suit schedule property or interfering with its possession and  enjoyment
of the suit property and/or interfering or disturbing with  the  performance
of annual “Aradhana” of His Holiness Sri Padmanabha Teertharu, Sri  Kavindra
Teertharu and Sri Vageesha Teertharu.  The suit preferred by  the  plaintiff
was dismissed.
3.    The judgment and decree passed in the suit  was  assailed  before  the
Principal Civil Judge, Senior Division, Gangavati and eventually  by  virtue
of the order passed by this Court in  Special  Leave  Petition  (Civil)  No.
20346 of 2014, it stood transferred to the  Court  of  Civil  Judge,  Senior
Division, Dharwad and numbered as R.A.  No.123/2014.   The  first  appellate
Court allowed the appeal  in  part.   The  appellate  Court  restrained  the
present appellant from  interfering  with  the  plaintiff/respondent  Mutt's
possession and enjoyment of suit  property  subject  to  the  right  of  the
defendant Mutt to perform  Adradhanas  and  Poojas  of  the  Vrindavanas  at
Navavrindavanagatti.
4.    After the appeal was  disposed  of,  the  respondent  filed  execution
petition,  E.P.  No.122/2015  before  the  Principal  Civil  Judge,   Junior
Division,  Gangavati.   The  executing  court  passed  certain   orders   on
10.12.2015. In the meantime, the appellant, being grieved by  the  order  in
the Regular Appeal, had preferred RSA No.100446/2015.  As the  order  passed
by the executing court affected certain rights of the  appellant,  it  filed
IA No.1 of 2015 seeking temporary injunction against the respondent.  Be  it
stated, the respondent had filed a caveat which was  defective  but  it  was
allowed to represent through the counsel  when  the  IA  No.1  of  2015  was
argued. As is discernible from the narration of facts, the  executing  court
had directed the Deputy Superintendent of Police, Gangavati to  give  police
protection to the decree-holder for possession and  enjoyment  of  the  suit
scheduled property and preventing the judgment-debtor from trespassing  into
the suit property violating the decree in RA No.123/2014.
5.    When the matter stood thus, IA No.1 of 2015 was taken up by  the  High
Court.  The  learned  Single  Judge,  while  considering  the  interlocutory
application for injunction, passed the following order:-
“List this matter on 20.01.2016 for filing of objections to  I.A.1/2015  and
2/15.  In the meanwhile, registry to secure the LCR  from  both  the  courts
below.  The same should reach this court on or before 16.01.2016.   However,
it is made  clear  that  the  appellant,  who  is  defendant  in  O.S.,  and
respondent who is plaintiff in the O.S., shall have their right  to  perform
pooja on regular basis without staking claim with respect to disputed  land,
which shall be subject to out come of this appeal.”

6.    As is manifest, the respondent filed objections to I.A. No.1/2015  and
also  filed  I.A.  No.1/2016  for  vacation  of  the  interim  order.   I.A.
No.1/2016 was taken up by the learned Single Judge  who  referred  to  Order
XXXIX Rule 3-A of the Code  of  Civil  Procedure  (CPC),  the  authority  in
                         A.  Venkatasubbiah  Naidu  v.   S.   Chellappan   &
others[1], noted the contentions advanced by the  learned  counsel  for  the
parties, adverted to the litigations that had  been  taken  recourse  to  by
both sides, acquainted itself with the earlier  order  passed  by  the  High
Court and came to hold thus :-
“On a reading of the aforesaid order  it  becomes  clear  that  the  interim
application filed by the appellant along with the appeal before  this  Court
had to be considered independently and on  its  own  merits.   But,  in  the
instant case what has happened is that this Court,  without  issuing  notice
to the respondent in the second appeal has granted an  interim  order  which
is to be in operation till the end of the appeal.  It is  not  known  as  to
whether the appellant had satisfied the Court on  any  substantial  question
of law that would  arise  in  the  matter  as  the  matter  was  listed  for
admission.”

7.    After so stating, the High Court opined that the principle  stated  in
Order XXXIX Rule 3 had not been followed, notice to the respondent  had  not
been issued  although  permission  was  granted  to  the  counsel  to  raise
objections and further delved into the distinction between an  appeal  under
Section  100  CPC  and  the  regular  first  appeal,  and  in  the  ultimate
eventuate, concluded thus:-
“If notice to respondent was to be dispensed with prior to grant  of  an  ad
interim order till the conclusion of the  second  appeal  then  reasons  for
doing so had to be recorded.  But the interim order which is  sought  to  be
vacated is bereft of any reason.  I am  of  the  view  that  on  this  short
ground alone  order  dated  16.12.2015  has  to  be  vacated  as  there  are
procedural irregularities in the grant of the ad interim  order.   Secondly,
it is also not known at this point of time as to whether, the  order  passed
by this Court in M.F.A. no.21690/2012 was brought  to  the  notice  of  this
Court by the appellant or not before the interim order was passed.

      In view of the above, the  application  I.A.  no.1/2016  for  vacating
interim order dated 16.12.2015 is allowed.  Order  dated  16.12.2015  stands
vacated.  The appellant to seek any date for admission  of  the  matter  and
after hearing learned counsel for the appellant on admission of the  appeal,
this Court to consider I.A.  no.1/2015  afresh.   All  contentions  on  both
sides on I.A. No.1/2015 are kept open.”

8.    When the matter was taken up on 18.03.2016, this Court, after  hearing
the learned counsel for the parties, had passed the following order :-
“Having heard learned counsel for the parties, as an interim measure, it  is
directed that the petitioner, Sri Raghavendra Swamy Mutt,  is  permitted  to
do 'aradhana' from 24th to 26th March, 2016 and not a day prior to  that  or
beyond that.  Needless to say, no equity shall be claimed by the  petitioner
on the basis of this order.  That apart, the present  arrangement  shall  be
restricted to this occasion only.”

9.    We had, at that time, blissfully perceived being under the  impression
that “Aradhana” is a yearly  event,  that  request  to  the  High  Court  to
dispose of the second  appeal could sub-serve the cause of justice, but  the
learned counsel for the parties apprised us that it  is  a  monthly  affair.
Ergo, we have heard  Dr. Rajiv Dhawan  and  Mr.  R.  Venkataramani,  learned
senior counsel for the appellant and Mr. Fali  S.  Nariman,  learned  senior
counsel for the respondent.
10.        It      is      submitted      by      Dr.       Dhawan       and
 Mr. Venkataramani, learned senior counsel, that  the  High  Court  was  not
justified in vacating the order of stay on the grounds it has done, for  the
principle of Order XXXIX Rule 3-A is not applicable when the  appellant  had
prayed for stay and passing of interim orders.  It is  urged  by  them  that
the respondent had entered caveat which was defective in nature but  it  had
participated in the hearing and, therefore, the interim order could  not  be
regarded as an ex parte order.  Learned senior  counsel  appearing  for  the
appellant would further submit that when the judgment and decree  passed  in
the regular appeal is demonstrably  unsustainable,  the  High  Court  should
have maintained the order of stay and finally  disposed  of  I.A.  No.1/2015
and should not have entertained  I.A.  No.1/2016  seeking  vacation  of  the
order of stay.  It has  been  highlighted  that  the  language  employed  in
Section 100 CPC though stipulates  that  appeal  is  to  be  entertained  on
substantial question of law involved in the case, it does not bar  the  High
Court to pass an ad interim order in a  grave  situation  and  that  is  the
basic purport of Order XLI Rule 5 and Order XLII CPC.
11.   Combating the aforesaid submissions,  it  is  urged  by  Mr.  Nariman,
learned senior counsel appearing for the respondent that the  interim  order
passed by the High Court in I.A. No.1/2015 from all angles is  an  ex  parte
order, for adjournment was sought on  behalf  of  respondent  to  argue  the
matter but the same was declined.   Learned  senior  counsel  would  propone
that passing an order of stay or issuing an order of injunction in a  second
appeal is quite different than an interim order passed in  a  regular  first
appeal preferred under  Section  96  CPC.   It  is  canvassed  by  him  that
formulation of substantial question of law by the Court  under  Section  100
CPC is an imperative to  proceed  with  the  appeal  and  the  Court  cannot
proceed  unless  the  condition  precedent  is  satisfied  and  in  such   a
situation, the question  of  passing  any  interim  order  or  granting  any
interim relief does not arise.    Mr. Nariman has drawn support from a  two-
Judge Bench decision in Ram Phal v. Banarasi & Ors.[2].
12.   To appreciate the controversy, it is seemly to refer  to  Section  100
CPC. It reads as follows:-
“Section 100. Second appeal.—
(1) Save as otherwise expressly provided in the body of this Code or by  any
other law for the time being in force, an  appeal  shall  lie  to  the  High
Court from every decree passed in appeal by any  Court  subordinate  to  the
High Court, if the  High  Court  is  satisfied  that  the  case  involves  a
substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex-
parte.

(3) In an  appeal  under  this  section,  the  memorandum  of  appeal  shall
precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law  is
involved in any case, it shall formulate that question.

(5) The appeal shall  be  heard  on  the  question  so  formulated  and  the
respondent shall, at the hearing of the appeal, be  allowed  to  argue  that
the case does not involve such question :

Provided that nothing in this sub-section shall be deemed to  take  away  or
abridge the power of the Court to hear, for  reasons  to  be  recorded,  the
appeal on any other substantial question of law, not formulated  by  it,  if
it is satisfied that the case involves such question.”

13.   Section 101 CPC reads as under:-
“Section 101. Second appeal on no other grounds.—No second appeal shall  lie
except on the ground mentioned in section 100.”

14.   A plain reading of Section 100 CPC makes it  explicit  that  the  High
Court can entertain a second appeal if  it  is  satisfied  that  the  appeal
involves a substantial question of law.  More  than  a  decade  and  a  half
back, in Ishwar Dass Jain v. Sohan Lal[3] it has been ruled that  after  the
1976  Amendment,  it  is  essential  for  the  High  Court  to  formulate  a
substantial question of law  and  it  is  not  permissible  to  reverse  the
judgment of the first appellate court without doing so.
15.   In Roop Singh v. Ram Singh[4] the Court had to say thus:-
“It is to be reiterated that under Section 100 CPC jurisdiction of the  High
Court to entertain a second appeal is confined only to  such  appeals  which
involve  a  substantial  question  of  law  and  it  does  not  confer   any
jurisdiction on the High Court to interfere  with  pure  questions  of  fact
while exercising its jurisdiction under Section 100 CPC.”

16.   In Municipal Committee, Hoshiarpur v. Punjab SEB &  Others[5]  it  has
been categorically laid down that the existence of  a  substantial  question
of law is a condition precedent for entertaining the second  appeal  and  on
failure to do so, the judgment rendered by the High Court is  unsustainable.
It has been clearly stated that existence of a substantial question  of  law
is the sine qua non for the exercise of jurisdiction  under  the  provisions
of Section 100 CPC.
17.   In Umerkhan v. Bismillabi alias Babulal Shaikh and  others[6]  a  two-
Judge Bench was constrained to ingeminate the legal position thus:-
“In our view, the very jurisdiction of the High Court in  hearing  a  second
appeal is founded on the formulation of a substantial question of  law.  The
judgment of the High Court is rendered patently illegal, if a second  appeal
is heard and judgment  and  decree  appealed  against  is  reversed  without
formulating  a  substantial  question   of   law.   The   second   appellate
jurisdiction of the High  Court  under  Section  100  is  not  akin  to  the
appellate jurisdiction under Section 96 of the Code;  it  is  restricted  to
such substantial question or questions  of  law  that  may  arise  from  the
judgment and decree appealed against. As a matter of law,  a  second  appeal
is entertainable by the  High  Court  only  upon  its  satisfaction  that  a
substantial question of law is involved in the matter  and  its  formulation
thereof. Section 100 of the Code provides that the second  appeal  shall  be
heard on the question so formulated. It is, however, open to the High  Court
to reframe substantial question of law or frame substantial question of  law
afresh or hold that no substantial question of law is involved at  the  time
of hearing the second appeal but reversal of the judgment and decree  passed
in appeal by a court subordinate to it in  exercise  of  jurisdiction  under
Section 100 of the Code is  impermissible  without  formulating  substantial
question of law and a decision on such question.”

18.   In the instant case, the High Court has not yet admitted  the  matter.
It is  not  in  dispute  that  no  substantial  question  of  law  has  been
formulated as it  could  not  have  been   when  the  appeal  has  not  been
admitted.  We say so, as appeal under Section 100  CPC  is  required  to  be
admitted only on  substantial  question/questions  of  law.   It  cannot  be
formal admission like  an  appeal  under  Section  96  CPC.    That  is  the
fundamental imperative.  It is peremptory in character, and that  makes  the
principle absolutely cardinal.    The issue that  arises  for  consideration
is; whether the High Court without admitting the second  appeal  could  have
entertained IA No. 1/2015 which was filed seeking interim  relief.   In  Ram
Phal (supra), from which Mr.  Nariman,  learned  senior  counsel  has  drawn
immense inspiration, the two-Judge Bench was dealing with a case  where  the
High Court had granted an interim order by  staying  the  execution  of  the
decree but had not framed the substantial question of law. In that  context,
the Court held:-
“… However, the High Court granted interim order by  staying  the  execution
of the decree. It is against the said  order  granting  interim  relief  the
respondent in the second appeal has preferred this appeal. This Court, on  a
number of occasions, has  repeatedly  held  that  the  High  Court  acquires
jurisdiction to decide the second appeal or deal with the second  appeal  on
merits only when it frames a substantial question of law as required  to  be
framed under Section 100 of the Civil Procedure Code. In the  present  case,
what we find is that the High Court granted  interim  order  and  thereafter
fixed the matter for framing of question of law on a subsequent  date.  This
was not the way to deal with the matter as contemplated  under  Section  100
CPC. The High Court is required to frame  the  question  of  law  first  and
thereafter deal with the matter. Since the High Court dealt with the  matter
contrary to the mandate enshrined under Section 100 CPC, the impugned  order
deserves to be set aside.”

19.   To meet the reasoning  in  the  aforequoted  passage,              Dr.
Dhawan and Mr. Venkataramani with resolute perseverance submitted  that  the
decision in Ram Phal (supra) is distinguishable as it does not take note  of
Order XLI Rule 5 and Order XLII Rule 1 CPC.
20.   Order XLI Rule 5 reads as follows:-
“5. Stay by appellate court.—(1) An appeal shall not operate as  a  stay  of
proceedings under a decree or order appealed  from  except  so  far  as  the
appellate court may order, nor shall execution of  a  decree  be  stayed  by
reason only of an appeal having been preferred  from  the  decree;  but  the
appellate court may for sufficient cause order stay  of  execution  of  such
decree.

Explanation : An order by the Appellate Court for the stay of  execution  of
the decree shall be effective from the date of  the  communication  of  such
order to the court  of  first  instance,  but  an  affidavit  sworn  by  the
appellant, based on his personal knowledge, stating that an  order  for  the
stay of execution of the decree has been made by the Appellate Court  shall,
pending the receipt from the Appellate Court of the order for  the  stay  of
execution or any order to the contrary, be acted upon by the court of  first
instance.
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(2) Stay by court which passed the decree.—Where an application is made  for
stay of execution of an appealable decree before the expiration of the  time
allowed for appealing therefrom, the court which passed the  decree  may  on
sufficient cause being shown order the execution to be stayed.

(3) No order for stay of execution shall be made under sub-rule (1) or  sub-
rule (2) unless the court making it is satisfied—
(a) that substantial loss may result to  the  party  applying  for  stay  of
execution unless the order is made;
(b) that the application has been made without unreasonable delay; and
(c) that security has been given by the applicant for  the  due  performance
of such decree or order as may ultimately be binding upon him.

(4) Subject to the provisions of sub-rule (3), the  court  may  make  an  ex
parte order for stay of execution pending the hearing of the application.

(5) Notwithstanding anything contained in  the  foregoing  sub-rules,  where
the appellant fails to make the deposit or furnish  the  security  specified
in sub-rule (3) of Rule 1, the court shall not make  an  order  staying  the
execution of the decree.”

21.   Order XLII  Rule  1  that  occurs  under  the  Heading  “Appeals  From
Appellate Decrees” is as follows:-
“1. Procedure.— The rules of Order XLI shall apply, so far  as  may  be,  to
appeals from appellate decrees.”

22.   In this context, it is useful to refer to Order XLII Rule 2 which  has
been inserted by Act 104 of 1976 with effect from  01.02.1977.  It  provides
as under:-

|                                                              | |
|“2. Power of court to direct that the appeal be heard on the  | |
|question formulated by     it.— At the time of making an order| |
|under rule 11 of Order XLI for the hearing of a second appeal,| |
|the court shall formulate the substantial question of law as  | |
|required by section 100, and in doing so, the court may direct| |
|that the second appeal be heard on the question so formulated | |
|and it shall not be open to the appellant to urge any other   | |
|ground in the appeal without the leave of the court, given in | |
|accordance with the provision of section 100.”                | |


23.   Submission of the learned senior counsel for  the  appellant  is  that
Order XLI Rule 5 confers jurisdiction on the High Court while  dealing  with
an appeal under Section 100 CPC to pass an ex parte order and such an  order
can be passed deferring formulation of question of law in grave  situations.
 Be it stated, for passing an ex parte order the Court has to keep  in  mind
the postulates provided under sub-rule (3) of Rule 5 of Order  XLI.  It  has
to be made clear that the Court for the  purpose  of  passing  an  ex  parte
order  is obligated to keep in view the language employed under Section  100
CPC. It is because formulation of substantial question of  law  enables  the
High Court to entertain an appeal and thereafter proceed to  pass  an  order
and at that juncture, needless to say, the Court  has  the  jurisdiction  to
pass an interim order subject to the language employed  in  Order  XLI  Rule
5(3).  It is clear as day that the High Court cannot admit a  second  appeal
without examining whether it raises any  substantial  question  of  law  for
admission and  thereafter,  it  is  obliged  to  formulate  the  substantial
question of law.  Solely because the Court has the jurisdiction to  pass  an
ex parte order, it does not empower it  not  to  formulate  the  substantial
question of law  for the purpose of admission, defer the date  of  admission
and pass an order of stay or grant an interim  relief.    That  is  not  the
scheme of CPC after its amendment in 1976 and  that  is  not  the  tenor  of
precedents of this Court and it has been  clearly  so  stated  in  Ram  Phal
(supra).  Therefore, the High Court has rectified its  mistake  by  vacating
the order passed in IA No. 1/2015 and it is the correct approach adopted  by
the High Court. Thus, the impugned order is absolutely impregnable.
24.   Having so concluded, we would have proceeded to  record  dismissal  of
the appeal. But in the obtaining facts and  circumstances,  we  request  the
High Court to take up the second appeal for admission and, if it finds  that
there is a substantial question of law  involved,  proceed  accordingly  and
deal with IA No. 1/2015 as required in law. Needless  to  say,  the  interim
order passed by this Court on earlier occasion should not  be  construed  as
an expression of any opinion from any count. It was a  pure  and  simple  ad
interim arrangement.
25.   Resultantly, the appeal, being sans substance, stands  dismissed  with
no order as to costs.

                                           ...............................J.
                                           [Dipak Misra]



                                           ...............................J.
   [Shiva Kirti Singh]

New Delhi.
March 30, 2016.


-----------------------
[1]    AIR 2000 SC 3032
[2]    (2003) 11 SCC 762
[3]    (2000) 1 SCC 434
[4]    (2000) 3 SCC 708
[5]    (2010) 13 SCC 216
[6]    (2011) 9 SCC 684

The service made available by the Bombay Stock Exchange [BSE Online Trading (BOLT) System] for which the charges in question had been paid by the appellant – assessee are common services that every member of the Stock Exchange is necessarily required to avail of to carry out trading in securities in the Stock Exchange. The view taken by the High Court that a member of the Stock Exchange has an option of trading through an alternative mode is not correct. A member who wants to conduct his daily business in the Stock Exchange has no option but to avail of such services. Each and every transaction by a member involves the use of the services provided by the Stock Exchange for which a member is compulsorily required to pay an additional charge (based on the transaction value) over and above the charges for the membership in the Stock Exchange. The above features of the services provided by the Stock Exchange would make the same a kind of a facility provided by the Stock Exchange for transacting business rather than a technical service provided to one or a section of the members of the Stock Exchange to deal with special situations faced by such a member(s) or the special needs of such member(s) in the conduct of business in the Stock Exchange. In other words, there is no exclusivity to the services rendered by the Stock Exchange and each and every member has to necessarily avail of such services in the normal course of trading in securities in the Stock Exchange. Such services, therefore, would undoubtedly be appropriate to be termed as facilities provided by the Stock Exchange on payment and does not amount to “technical services” provided by the Stock Exchange, not being services specifically sought for by the user or the consumer. It is the aforesaid latter feature of a service rendered which is the essential hallmark of the expression “technical services” as appearing in Explanation 2 to Section 9(1)(vii) of the Act. the transaction charges paid to the Bombay Stock Exchange by its members are for 'technical services' rendered is not an appropriate view. Such charges, really, are in the nature of payments made for facilities provided by the Stock Exchange. No TDS on such payments would, therefore, be deductible under Section 194J of the Act.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.3141 OF 2016
                 [Arising out of S.L.P.(C) No.19907 of 2012]

C.I.T.-4,        MUMBAI                                      ...APPELLANT(S)
                     VERSUS

M/S KOTAK SECURITIES LTD.                    ...RESPONDENT(S)

                                    WITH

CIVIL APPEAL NO. 3143  OF  2016  [Arising  out  of  Special  Leave  Petition
(Civil) No.19908 of 2012], CIVIL APPEAL NO.3145  OF  2016  [Arising  out  of
Special Leave Petition (Civil) No.19909 of 2012], CIVIL  APPEAL  NO.3146  OF
2016  [Arising out of Special Leave  Petition  (Civil)  No.33059  of  2012],
CIVIL APPEAL NO.3150 OF 2016 [Arising out of Special Leave Petition  (Civil)
No.37694 of 2012], CIVIL APPEAL NO.3151 OF  2016  [Arising  out  of  Special
Leave Petition (Civil) No.17553 of 2015],  CIVIL  APPEAL  NO._3152  OF  2016
[Arising out of Special Leave  Petition  (Civil)  No.5893  of  2015],  CIVIL
APPEAL NO.3154 OF 2016  [Arising  out  of  Special  Leave  Petition  (Civil)
No.17549 of 2015], CIVIL APPEAL NO.3155 OF  2016  [Arising  out  of  Special
Leave Petition (Civil) No.18394 of  2015]  AND  CIVIL  APPEAL  NO.3156  2016
[Arising out of Special Leave Petition (Civil) No.8294 of 2016 @ CC  NO.3427
of 2016]



                               J U D G M E N T

RANJAN GOGOI, J.

1.          Leave granted in all the Special Leave Petitions.
2.          Civil Appeal arising  out  of  Special  Leave  Petition  (Civil)
No.37694 of 2012 (M/s Kotak  Securities  Ltd.  Vs.  C.I.T.4(3),  Mumbai)  is
taken as the lead case as a decision on the issue(s) arising  therein  would
determine  the  questions  arising  in   all   the   other   appeals   under
consideration.

3.          By the impugned order dated 21st October,  2011  passed  in  the
aforesaid appeal, the High Court of Bombay has  held  that  the  transaction
charges paid by a member of the Bombay Stock Exchange to  transact  business
of sale and purchase of shares amounts to payment of a  fee  for  'technical
services' rendered by the  Bombay  Stock  Exchange.   Therefore,  under  the
provisions of Section 194J of the Income  Tax  Act,  1961  (for  short  “the
Act”), on such payments TDS was deductible at source.  The  said  deductions
not having been made by the appellant – assessee, the entire amount paid  to
the Bombay  Stock  Exchange  on  account  of  transaction  charges  was  not
deducted in computing the income chargeable  under  the  head  “profits  and
gains of business or  profession”  of  the  appellant  –  assessee  for  the
Assessment Year in question i.e.  2005-2006.  This  is  on  account  of  the
provisions of Section 40(a)(ia) of the Act.  Notwithstanding the above,  the
Bombay High Court held that in view of the apparent  understanding  of  both
the assessee and the Revenue with regard to the liability to deduct  TDS  on
transaction charges paid to the Bombay Stock Exchange right  from  the  year
1995 i.e. coming into effect of Section 194J till  the  Assessment  Year  in
question, benefit, in the facts of  the  case,  should  be  granted  to  the
appellant – assessee and the disallowance  made  by  the  Assessing  Officer
under Section 40(a)(ia) of the Act must be held to be not correct.
4.          Aggrieved by the finding that transaction charges  paid  to  the
Stock Exchange are fees for  “technical  services”,  the  assessee  –  Kotak
Securities Ltd. is  in  appeal  before  us  whereas  the  Revenue  seeks  to
challenge the later part of the order of the High Court set out above.   The
assessee is also in appeal against  similar  orders  passed  in  respect  of
subsequent assessment orders in the case of the  assessee  itself.   As  the
order of the High Court, with regard to transaction  charges  being  in  the
nature of fee for technical  services,  has  been  made  applicable  to  the
assessments in case of other  assessees,  such  of  the  assessees  who  are
aggrieved thereby have filed the other appeals before us.


5.          The relevant  provisions  of  the  Act  which  have  a  material
bearing to the issues arising for determination in the present  appeals  may
now be noticed. Section 194J; Section 40(a)(ia) of  the  Act  introduced  by
Finance (No.2) Act, 2004 with effect from 1st April, 2005;  and  Explanation
2 of Section 9(1)(vii) which are relevant for the  purpose  of  the  present
case reads as under:
“194J. Fees for professional or technical services.

(1) Any person, not being an individual or a Hindu undivided family, who  is
responsible for paying to a resident any sum by way of—

(a) fees for professional services, or

(b) fees for technical services or

(c) royalty, or

(d) any sum referred to in clause (va) of section 28

shall at the time of credit of such sum to the account of the  payee  or  at
the time of payment thereof in cash or by issue of a cheque or draft  or  by
any other mode, whichever is earlier, deduct an amount  equal  to  five  per
cent of such sum as income-tax on income comprised therein:
…..............................
…..............................

Explanation.—For the purposes of this section,—

(a)............................

(b) "fees for  technical  services"  shall  have  the  same  meaning  as  in
Explanation 2 to clause (vii) of sub-section (1) of section 9;

…..............................


40. Amounts not deductible. Notwithstanding  anything  to  the  contrary  in
sections 30 to 38, the following amounts shall not be deducted in  computing
the income chargeable under the head  “Profits  and  gains  of  business  or
profession”
(a)   in the case of any assessee-
(i)   …......    ….. …...
(ia)  any  interest,  commission  or  brokerage,  rent,  royalty,  fees  for
professional services or fees for technical services payable to a  resident,
or amounts payable to a contractor or sub-contractor,  being  resident,  for
carrying out any work (including supply  of  labour  for  carrying  out  any
work), on which tax is deductible at source under Chapter  XVII-B  and  such
tax has not been deducted or, after deduction, has not been paid during  the
previous year, or in the subsequent year  before  the  expiry  of  the  time
prescribed under sub-section (1) of section 200:
Provided that where in respect of any such sum, tax  has  been  deducted  in
any subsequent year, or has been deducted in the previous year but  paid  in
any subsequent year after the expiry  of  the  time  prescribed  under  sub-
section (1) of section 200 such sum shall  be  allowed  as  a  deduction  in
computing the income of the previous year in which such tax has been paid.
Explanation.-.........



9. Income deemed to accrue or arise in India      (1) The following  incomes
shall be deemed to accrue or arise in India:-
(i).....................
…......................
…......................
(vii) income by way of fees for technical services payable by—
(a) ...............
(b) ...............
(c) ...............
….......................
Explanation  2.—For  the  purposes  of  this  clause,  "fees  for  technical
services" means any consideration (including  any  lump  sum  consideration)
for the rendering of  any  managerial,  technical  or  consultancy  services
(including the provision of services of technical or  other  personnel)  but
does not include consideration for any  construction,  assembly,  mining  or
like project undertaken by the recipient or  consideration  which  would  be
income of the recipient chargeable under the head "Salaries".


6.           What  meaning  should  be  ascribed  to  the  word   “technical
services” appearing in Explanation 2 to clause (vii) to Section 9(1) of  the
Act is  the  moot  question.   In  Commisioner  of  Income-Tax   Vs.  Bharti
Cellular Ltd.[1] this Court has observed as follows:

“Right from 1979, various judgments of the High Courts  and  Tribunals  have
taken the view that the words “technical services” have got to  be  read  in
the narrower sense by applying the rule of noscitur a sociis,  particularly,
because the words  “technical  services”  in  section  9(1)(vii)  read  with
Explanation 2  comes  in  between  the  words  “managerial  and  consultancy
services”.

7.           “Managerial   and   consultancy   services”   and,   therefore,
necessarily “technical services”, would obviously involve services  rendered
by human efforts.  This has been the consistent view  taken  by  the  courts
including this Court in Bharti Cellular Ltd. (supra). However, it cannot  be
lost sight of that modern day scientific and technological developments  may
tend to blur the specific human element  in  an  otherwise  fully  automated
process by which such services may  be  provided.  The  search  for  a  more
effective basis, therefore, must be made.

8.      A reading of the very  elaborate  order  of  the  Assessing  Officer
containing a lengthy discourse on the services made available by  the  Stock
Exchange would go to show that apart from facilities of  a  faceless  screen
based transaction, a  constant upgradation of the  services  made  available
and surveillance of the  essential  parameters  connected  with  the   trade
including  those  of  a  particular/  single  transaction  that  would  lead
credence to its authenticity is provided for  by  the  Stock  Exchange.  All
such services, fully automated, are available to all members  of  the  stock
exchange in respect of every transaction that  is  entered  into.  There  is
nothing special, exclusive or customised service that  is  rendered  by  the
Stock  Exchange.  “Technical  services”  like  “Managerial  and  Consultancy
service” would denote seeking of services to cater to the special  needs  of
the consumer/user as may be felt  necessary  and  the  making  of  the  same
available by the service provider.  It  is  the  above  feature  that  would
distinguish/identify a service provided from a facility offered.  While  the
former is special and exclusive to the seeker of the  service,  the  latter,
even if termed as a service, is available to all and would  therefore  stand
out in distinction  to  the  former.  The  service  provided  by  the  Stock
Exchange for which  transaction  charges  are  paid  fails  to  satisfy  the
aforesaid test of specialized, exclusive and individual requirement  of  the
user  or  consumer  who  may  approach  the  service   provider   for   such
assistance/service. It is only service of the above kind that, according  to
us, should come within the ambit  of  the  expression  “technical  services”
appearing in Explanation 2 of Section 9(1)(vii) of the Act.  In the  absence
of the above distinguishing feature,  service,  though  rendered,  would  be
mere in the nature of a facility offered or available  which  would  not  be
covered by the aforesaid provision of the Act.

9.          There is yet  another  aspect  of  the   matter  which,  in  our
considered  view,  would  require  a  specific  notice.   The  service  made
available by the Bombay Stock  Exchange [BSE Online Trading  (BOLT)  System]
for which the charges in question had been paid by the appellant –  assessee
are common services that every member of the Stock Exchange  is  necessarily
required to avail of to  carry  out  trading  in  securities  in  the  Stock
Exchange. The view taken by the High  Court  that  a  member  of  the  Stock
Exchange has an option  of  trading  through  an  alternative  mode  is  not
correct.  A member who wants to conduct his  daily  business  in  the  Stock
Exchange has no option but to  avail  of  such  services.   Each  and  every
transaction by a member involves the use of the  services  provided  by  the
Stock Exchange for which  a  member  is  compulsorily  required  to  pay  an
additional charge (based on  the  transaction  value)  over  and  above  the
charges for the membership in the Stock Exchange.   The  above  features  of
the services provided by the Stock Exchange would make the same a kind of  a
facility provided by the Stock  Exchange  for  transacting  business  rather
than a technical service provided to one or a section of the members of  the
Stock Exchange to deal with special situations faced by such a member(s)  or
the special needs of such member(s) in the conduct of business in the  Stock
Exchange.  In other words, there is no exclusivity to the services  rendered
by the Stock Exchange and each and every member has to necessarily avail  of
such services in the normal course of trading in  securities  in  the  Stock
Exchange. Such services, therefore, would undoubtedly be appropriate  to  be
termed as facilities provided by the Stock Exchange on payment and does  not
amount to “technical services” provided by the  Stock  Exchange,  not  being
services specifically sought for by the user or  the  consumer.  It  is  the
aforesaid latter feature of  a  service  rendered  which  is  the  essential
hallmark of the expression “technical services” as appearing in  Explanation
2 to Section 9(1)(vii) of the Act.

10.         For the aforesaid reasons, we hold that the view  taken  by  the
Bombay High court that the transaction charges  paid  to  the  Bombay  Stock
Exchange by its members are for 'technical  services'  rendered  is  not  an
appropriate view.  Such charges, really, are in the nature of payments  made
for facilities provided by the Stock Exchange.   No  TDS  on  such  payments
would, therefore, be deductible under Section 194J of the Act.

11.         In view of above conclusions, it will not be  necessary  for  us
to examine the correctness of the view taken by the Bombay High  Court  with
regard to the issue of the disallowance under Section 40(a)(ia) of the  Act.
 All the appeals, therefore, shall stand disposed in the light of our  views
and observations as indicated above.

                                               ….……......................,J.
                                                              [RANJAN GOGOI]



                                               ….……......................,J.
                                                          [PRAFULLA C. PANT]

NEW DELHI
MARCH 29, 2016
-----------------------
[1]
       (2011) 330 ITR 239 (SC)

The mere fact that the company has been ordered to be wound up cannot be a ground to direct the official liquidator to handover possession of the land to the owners inasmuch as the company in liquidation continues to maintain its corporate existence until it stands dissolved upon completion of the liquidation proceedings in the manner contemplated by the Companies Act. In the present case it has been repeatedly submitted before this Court by both sides that presently revival of Prasad Mills is a live issue pending before the Gujarat High Court, a fact which cannot be ignored by this Court in deciding the above issue against the appellants.=The other civil appeals, which have been heard analogously, can be divided into two categories. The first is where the order dated 17.10.2008 passed in O.J. Appeal No. 65 of 2006 [Jabal C. Lashkari & Ors. Vs. Official Liquidator & Ors.] impugned in civil appeals arising out of SLP(C) Nos. 29282-29284 of 2008 has been followed. In the other group are the cases where the said order has been followed and also an additional ground has been cited namely that in view of the order dated 17.07.2006 passed in Company Application No. 250 of 2006 a direction has been issued to handover possession of the leased premises to the State Government; hence the question of putting the property to sale does not arise.Though we have affirmed the order dated 17.10.2008 of the Gujarat High Court passed in O.J. Appeal Nos. 65 of 2006, 66 of 2006 and 67 of 2006 and dismissed the civil appeals arising out of SLP(C) Nos. 29282-29284 of 2008 [Jabal C. Lashkari & Ors. Vs. Official Liquidator & Ors.], our decision to affirm the said judgment of the High Court is based on a consideration of the specific clauses in the lease deed between the parties to the case. What would be the effect of the principles of law underlying the present order vis-a-vis the specific clauses of the lease deed between the parties in the other cases is a question that has to be considered by the High Court in each of the cases. That apart whether the order dated 17.07.2006 passed in Company Application No. 250 of 2006 has attained finality in law and forecloses the question raised and further whether constructions have been raised on such land by the State Government for the benefit of the general public, as has been submitted to dissuade us from interfering with the order of the High Court, are questions that would require a full and complete consideration by the High Court on the materials available. To enable the said exercise to be duly performed, we set aside the order of the High Court impugned in each of the aforesaid civil appeals and remit all the matters to the High Court for a fresh consideration in accordance with the observations and principles of law contained in the present order.

                                      REPORTABLE

                            IN THE SUPREME COURT OF INDIA
                            CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NOS. 3147-3149 OF 2016
             (Arising out of S.L.P.(C) Nos.29282-29284 of 2008)

Jabal C. Lashkari & Ors.                              ...Appellant (s)

                                   Versus
Official Liquidator & Ors.                    ...Respondent (s)

                                    WITH

                        Civil Appeal No. 3153 of 2016
                  (Arising out of SLP(C) No. 29952 of 2008)
                        Civil Appeal No. 3157 of 2016
                  (Arising out of SLP(C) No. 29632 of 2008)
                        Civil Appeal No.3158 of 2016
                   (Arising out of SLP(C) No. 940 of 2009)
                        Civil Appeal No. 3159 of 2016
                  (Arising out of SLP(C) No. 1866 of 2009)
                        Civil Appeal No. 3160 of 2016
                  (Arising out of SLP(C) No. 2583 of 2009)
                        Civil Appeal No. 3161 of 2016
                  (Arising out of SLP(C) No. 5880 of 2009)
                        Civil Appeal No.3162_ of 2016
                  (Arising out of SLP(C) No. 7864 of 2009)
                        Civil Appeal No. 3163 of 2016
                  (Arising out of SLP(C) No. 12835 of 2009)
                        Civil Appeal No. 3164 of 2016
                  (Arising out of SLP(C) No. 12919 of 2009)
                        Civil Appeal No. 3165 of 2016
                  (Arising out of SLP(C) No. 14276 of 2009)
                        Civil Appeal No. 3166 of 2016
                  (Arising out of SLP(C) No. 14316 of 2009)
                        Civil Appeal No. 3167 of 2016
                  (Arising out of SLP(C) No. 21949 of 2009)
                        Civil Appeal No.3168 of 2016
                  (Arising out of SLP(C) No. 31354 of 2009)
                     Civil Appeal Nos.3169-3170 of 2016
              (Arising out of SLP(C) Nos. 32444-32445 of 2010)
                        Civil Appeal No.3171 of 2016
                  (Arising out of SLP(C) No. 31663 of 2011)
                        Civil Appeal No. 3172 of 2016
                  (Arising out of SLP(C) No. 4816 of 2012)


                                 J U D G M E N T

RANJAN GOGOI, J.

Leave granted in each of the Special Leave Petitions.

The facts arising in the Civil Appeals arising from SLP(C) Nos.  29282-29284
of 2008, which is being taken as the  lead  case,  may  be  noticed  at  the
outset.

One Durgaprasad Lashkari (predecessor of  the  appellants)  had  leased  out
land admeasuring 35,772 sq. mtrs. in favour  of one Bechardas  Spinning  and
Weaving Mills Ltd. (subsequently known as Prasad Mills Ltd.)  for  a  period
of 199 years by a lease  deed  dated  10.12.1916.   A  secured  creditor  of
Prasad Mills Ltd. had in the year 1984 filed a company petition seeking  the
winding up of the aforesaid Prasad Mills Ltd.  While  the  company  petition
was pending some of the legal heirs of  Durgaprasad  Lashkari  had  filed  a
suit in the Small Causes Court  seeking  permanent  injunction  against  the
sale of  assets  of  company  more  particularly  the  sale  of  the  leased
property.

An order dated 5.5.1989 was passed by  the  learned  Company  Judge  of  the
Gujarat High Court directing the winding up of Prasad  Mills  Ltd.  and  the
appointment of an official liquidator. The official liquidator was  directed
to take charge  and  possession  of  all  the  assets  of  the  company.  An
application was filed  by  another  heir  of  Durgaprasad  Lashkari  in  the
winding up petition seeking direction to further prosecute the suit  pending
before the Small Causes Court. The learned  Company  Judge  by  order  dated
24.2.1995 ordered that the suit may be withdrawn and instead directions  may
be sought from  the  Company  Court  for  return  of  the  leased  property.
Pursuant thereto a Company Application (C.A. No.462 of 1999)  was  filed  by
some of the heirs of Durgaprasad Lashkari for return of the leased  property
and   also   for   orders   restraining   the   official   liquidator   from
selling/transferring the leased property. While the  return  of  the  leased
land was sought on the twin grounds that in view of  the  winding  up  order
the Company no longer required the land and furthermore default  in  payment
of rent had occurred, for the second relief sought it  was  urged  that  the
official liquidator was  not  authorised  to  transfer/alienate  the  leased
property in view of the provisions of the Bombay Rents,  Hotel  and  Lodging
House Rates Control Act, 1947, as it then existed (hereinafter  referred  to
as ‘the Bombay Rent Act’).  While the above Company Application was  pending
the building, superstructure, plant and machinery of the  company  was  sold
in a public auction. It  appears  that  on  6.2.2004  an  advertisement  was
issued by the official liquidator for the sale of the  leased  property.  As
against  the  aforesaid  advertisement,  the  appellant  had  filed  Company
Application No.33 of 2004 for a declaration  that  the  official  liquidator
had  no  right  to  sell  the  leased  property.  The  grounds  urged   were
principally on the basis of lack  of  any  such  empowerment  in  the  lease
agreement and in view of the bar/restriction contained in Section 15 of  the
Bombay Rent Act. Another Company Application i.e. C.A.  No.34  of  2004  was
filed seeking permission from the Company Court to file a  suit  before  the
appropriate court for eviction of the official liquidator  from  the  leased
property.  Eviction of the official liquidator was claimed, inter  alia,  on
the ground that –

the occupant Company i.e.  Prasad  Mills  had  no  document  in  its  favour
entitling it to be in possession of the demised land;

admitted non payment of rent for a period of over  15  years  rendering  the
company and now the official liquidator liable to eviction under Section  12
of the Bombay Rent Act;

 admitted non user of the land for a  period  of  over  6  years  attracting
Section 13(1)(k) of the Rent Act;

sub-letting in favour of the company, Prasad Mills, in violation of  Section
13(1)(e) of the Rent Act.

The learned Company  Judge  by  a  very  elaborate  order  dated  13.10.2004
rejected all the three company applications. Aggrieved,  the  appellant  and
other legal heirs of  Durgaprasad  Lashkari  filed  three  separate  appeals
before the Division Bench of the High Court. The  High  Court  by  a  common
order dated 17.10.2008 dismissed all the  appeals  on  grounds  and  reasons
that will be noticed shortly. It  is  against  the  aforesaid  common  order
dated 17.10.2008 that the present appeals have been filed.

We have heard Shri Mihir Thakur learned senior  counsel  appearing  for  the
appellants in civil appeal arising out of  SLP(C)  No.  29282-84/2008;  Shri
P.S. Narasimha, learned  Additional  Solicitor  General  appearing  for  the
official  liquidator;  Shri  Tushar  Mehta,  learned  Additional   Solicitor
General and Shri S.N.  Shlute  learned  senior  counsel  appearing  for  the
Gujarat State Textile Corporation.

We have also heard learned counsels appearing for the  parties  in  all  the
other cases.

At the  very  outset  the  relevant  provisions  of  the  Bombay  Rent  Act,
(hereinafter referred to as the ‘Rent Act’) as applicable to  the  State  of
Gujarat and the provisions of the lease agreement dated  10.12.1916  may  be
noticed -

“12. - No ejectment ordinarily to be made if tenant pays  or  is  ready  and
willing to pay standard rent and permitted increases

(1) A landlord shall not be entitled to the recovery of  possession  of  any
premises so long as the tenant pays, or is ready and  willing  to  pay,  the
amount of the standard rent and permitted increases, if  any,  and  observes
and performs the other conditions of the tenancy, in  so  far  as  they  are
consistent with the provisions of this Act.


1[(1A) Where by reason of riot or violence of a mob  any  material  part  of
the  premises  in  a  disturbed  area  is  wholly  destroyed   or   rendered
substantially and permanently unfit for the purpose for which  it  was  let,
the landlord shall not be entitled to;--


(a) the standard rent and permitted increases due for the premises,


(b) recover possession of such premises merely oh the ground of non  payment
of standard rent and permitted increases due, during  the  period  in  which
such premises remain so destroyed or unfit.]


(2) No suit for recovery of possession shall be  instituted  by  a  landlord
against a tenant on the ground of  non  payment  of  the  standard  rent  or
permitted increases due, until the  expiration,  of  one  month  next  after
notice in  writing  of  the  demand  of  the  standard  rent  or  permitted,
increases has been served upon the tenant in the manner provided in  section
106 of the Transfer of Property Act, 1882 (IV of 1882).


(3) (a) Where the rent is payable by the month,  and  there  is  no  dispute
regarding the amount of standard rent or permitted increases, if  such  rent
or increases are in arrears for a period of six  month's  or  more  and  the
tenant neglects to make payment thereof until the expiration of  the  period
of one month, after notice referred to in sub-section  (2),  the  Court  may
pass a decree for eviction in any such suit for recovery of possession.


(b) In any other case, no decree for eviction shall be passed  in  any  such
suit if, on the first day of hearing of the suit  or  oil  or  before  such"
other date as the Court may fix, the tenant pays or  tenders  in  Court  the
standard rent and permitted increases then due.3[and thereafter,--


(i) continues to pay or tender in Court such rent  and  permitted  increases
till the suit is finally decided; and


(ii) pays costs of the suit as directed by the Court.


(4) Pending the disposal of any such suit, the Court may out of  any  amount
paid or tendered by the tenant pay  to  the  landlord  such  amount  towards
payment of rent or permitted increases due to him as the court thinks fit.]


Explanation.---In any case where there is. a dispute as  to  the  amount  of
standard rent or permitted increases recoverable under this Act  the  tenant
shall be deemed to be ready and. willing to pay such amount if,  before  the
expiry of the period of one month after notice referred  to  in  sub-section
(2), he makes an application to the Court under sub-section (3)  of  section
11 and thereafter pays or tenders the amount of rent or permitted  increases
specified in the order made by the Court.”

“13. - When land-lord may recover possession-

(1) Notwithstanding anything contained  in  this  Act1[but  subject  to  the
provisions  of  section  15];  a  landlord  shall  be  entitled  to  recover
possession of any premises if the Court is satisfied--


(a) to (d) ***


(e)  that  the  tenant  has,  since  the  coming  into  operation  of  this.
Act3[unlawfully sub-let] the whole or part of the premises  or  assigned  or
transferred in any other manner his interest therein; or


(ee) to (j) ***


(k) that the premises have not been used without reasonable  cause  for  the
purpose for which they were let  for  a  continuous  period  of  six  months
immediately preceding the date of the suit; “


“15. - In absence of contract to  the  contrary  tenant  not  to  sublet  or
transfer

(1)] Notwithstanding anything contained in  any  law,3[but  subject  to  any
contract to the contrary,] it shall not be  lawful  after  the  coming  into
operation of this Act for any tenant to sub-let the whole  or  any  part  of
the premises let to him or to assign or transfer in  any  other  manner  his
interest therein:


[Provided that the5[State] Government may, by notification in  the  Official
Gazette, permit in any area the transfer of interest in premises held  under
such leases or class of leases and to such extent as  may  be  specified  in
the notification.]


[(2)  The  bar  against  sub-letting,  assigning  or  transferring  premises
contained in sub-section (1) shall be deemed not  to  have  had  any  effect
before the commencement of the Bombay Rents, Hotel and Lodging  House  Rates
Control (Amendment) Ordinance, 1959 (Bom. Ord. No.  III  of  1959),  in  any
area in which this Act  was  in  operation  before  such  commencement;  and
accordingly, notwithstanding anything contained in any contract  or  in  the
judgement, decree or order of a Court  any  such  sub-lease,  assignment  or
transfer in favour of such persons as have entered into  possession  despite
the bar as sub-lessees, assignees or  transferees,  and  have  continued  in
possession at the commencement of the said Ordinance, shall be deemed to  be
valid and effectual].”


“19. - Unlawful charges by tenant

(1) [Save in cases provided for under the proviso to section 15,]  it  shall
not be lawful for the tenant or any person acting or purporting  to  act  on
behalf of the tenant to claim or receive any sum, or any consideration as  a
condition of the relinquishment2[transfer or assignment] of his  tenancy  of
any premises.


(2) Any tenant or person who in  contravention  of  the  provision  of  sub-
section (1) receives any sum  or  consideration  shall,  on  conviction,  be
punished with imprisonment for a term which may extend  to  six  months  and
shall also be punished with fine which shall not be less  than  the  sum  of
the value of the consideration received by him.”

The terms of the lease deed are as follows :
“............;And whereas the above  mentioned  three  pieces  of  land  are
owned by the First Party, and the Second Party  has  rented  the  same  from
First Party;

And whereas the rent is fixed  at  Rs.3501-00  -  Rs.  three  thousand  five
hundred and one. for one year of 12 months to be paid  to  First  Party,  by
the Second Party; as rent on the following conditions :

(1) The said rent will be given to First Party, by Second Party  every  year
and if the Second Party does not pay the rent due to them  every  year,  the
First Party will give registered notice for recovery of rent; and  in  spite
of  such  notice  the  Second  Party   or   their   successors,   heirs   or
administrators do not pay the rent, First Party or their successors,  heirs,
attorneys or administrators are entitled to obtain possession  of  the  land
with buildings, either by mutual understanding or through government.

(2) This rent note is valid for  199,  in  words  one  hundred  ninety  nine
years, agreed by Second Party and on expiry of  the  said  period,  we,  the
Second Party will vacate the land, resurface it and  will  give  it  to  the
First Party or their successor with any amount of rent due,  by  the  Second
Party or their successors or administrators, whosoever would be,  and  while
giving back the  possession, Second Party will  not  raise  any  dispute  or
objection, and even if raised will not  be  admissible  by  virtue  of  this
agreement.

(3) The First Party, or their successors, heir, are not entitled to sale  or
pledge, or give possession of these pieces of land, to any other party,  and
even if they do so, it will be void by virtue of this agreement.

(4) In case  the  government  needs  this  land  and/or  if  the  government
purchase some part of this land; then the right to receive compensation  for
such acquisition is of First Party; however, interest at  the  rate  of  one
percent per hundred of whatever amount the First Party  thus  receive.  will
be adjusted by the Second Party from the rent payable, or the  Second  Party
will give such reduced rent to First Party after adjusting the said  amount,
in the following years; and the First  Party  will  have  no  right  to  any
objection or dispute, and even if they raise any  dispute  it  will  be  not
sustainable by virtue of this agreement.

  (5)  In  case  the  Second  Party,   or   their   successors,   attorneys.
administrators, assinee or executors do not stay, or do not make use of,  or
do not store material, on the land; or vacate the land and  give  possession
to the First Party, before the specified period, then  the  First  Party  is
entitled to receive rent till the date  of  possession  so  given;  and  the
First Party has no right to claim rent for the remaining period.

(6) The municipal tax for the land is Rs.500-00  per  year.  which  will  be
paid by the Second Party; and the Second Party will give rent  of  Rs.3501/-
to First Party every  year.  However,  the  Second  Party  do  not  pay  the
municipal tax of Rs.500/- and the same has to be paid by  the  First  Party,
then the Second Party, or their successors will reimburse such  amount  with
six percent interest per hundred per year thereon.

(7) The First Party will not object upto 199 years, if the Second Party,  or
their  successors,  heirs  or  administrators,  construct   buildings   with
necessary government permission, or use a free  land  or  the  Second  Party
give on rent  or  on  lease,  and  the  First  Party  is  entitled  to  take
possession of the land immediately on expiry of 199 years.

(8)  The  First  Party,  or  their  successors,  heirs,  administrators   or
attorneys are entitled to take possession of the land before the  expiry  of
rent period, if the Second Party fail to  pay  rent  to  First  Party  every
year.

(9) The government tax on this land is to be paid by we,  First  Party;  but
if some additional tax is levied because of construction  on  the  land,  it
will be borne by the Second Party. Municipal tax is  Rs.500/-  per  year  at
present. However, hereafter if municipality levies some  additional  tax  on
First Party or on Second Party; or the government decide to  levy  some  new
tax; then all such taxes will be borne by the Second  Party,  and  will  not
claim it from First Party; nor will adjust it against rent  payable  to  the
First Party; and the First Party has no right  to  take  possession  of  the
land before expiry of 199 years, but the First Party has  right  to  receive
amount of rent till the above period.

(10) The First Party and the  Second  Party  and  their  successors,  heirs,
administrators,  attorneys  and  assignees,  are  accepting  the  terms  and
conditions set out in this agreement.

      Thus the Second Party has rented the pieces of land,  from  the  First
Party under the terms set out in this agreement, at  our  will,  and  signed
and sealed this agreement.”

9.    Before cataloguing the arguments  advanced  on  behalf  of  the  rival
parties it will be apposite to take note of the reasoning of the High  Court
which had prompted it to arrive at the impugned conclusions recorded in  the
order under appeal.

10.   The Division Bench of the High Court in answering the  appeals  before
it exhaustively considered  a  3-Judge  Bench  decision  of  this  Court  in
Laxmidas Bapudas  Darbar   &  Anr.   vs.  Rudravva  (Smt.)  &  Ors.[1].  The
Division Bench took note  of  the  fact  that  in  Laxmidas  Bapudas  Darbar
(supra) the Bench had occasion to consider the purport  and  effect  of  the
decision of this Court in V. Dhanapal  Chettiar  vs.  Yesodai  Ammal[2]  (7-
Judges)  before  holding  that  “as  a  matter  of  fact  the  question   of
curtailment of fixed-term contractual lease was not involved in the case  of
Dhanapal Chettiar” (Para 14). In fact in paragraph 15  of  the  judgment  in
Laxmidas Bapudas Darbar (supra) it was held :

“It has nowhere been held that by virtue of the provisions of the  Rent  Act
the contract of term lease is completely obliterated in  all  respects.  The
effect of the Rent Act on tenancy under contract has  been  considered  only
to a limited extent, confining it to the necessity of  giving  notice  under
Section 106 of the Transfer of Property Act.”

In Laxmidas Bapudas Darbar (supra) another decision of this  Court  in  Shri
Lakshmi Venkateshwara Enterprises (P)  Ltd.  vs.  Syeda  Vajhiunnissa  Begum
(Smt.) & Ors.[3] rendered in the context of  Section  21  of  the  Karnataka
Rent Act and, specifically, the provisions of the aforesaid Section  of  the
Karnataka Act were considered. The non-obstante clause in Section 21 of  the
Karnataka Act which gives an overriding effect over  any  provision  in  any
other law was specifically taken note of and eventually  it  was  held  that
the effect of the  non-obstante  clause  contained  in  Section  21  of  the
Karnataka Act on a fixed-term contractual lease would be as  follows :

“18. The effect of the non obstante clause contained  under  Section  21  of
the Karnataka Rent Act on the fixed-term contractual lease may be  explained
as follows:

(i) On expiry of period of the fixed-term lease, the tenant would be  liable
for eviction only on the grounds as enumerated in clauses (a) to (p) of sub-
section (1) of Section 21 of the Act.
(ii) Any ground contained in  the  agreement  of  lease  other  than  or  in
addition to the grounds enumerated in clauses (a) to (p) of sub-section  (1)
of Section 21 of the Act shall remain inoperative.
(iii) Proceedings for eviction of a tenant under  a  fixed-term  contractual
lease can be initiated during subsistence or currency of the lease  only  on
a ground as may be enumerated in clauses (a) to (p) of  sub-section  (1)  of
Section 21 of the Act and it is also provided as  one  of  the  grounds  for
forfeiture of the lease rights in the lease deed, not otherwise.
The period of fixed-term lease is ensured and remains  protected  except  in
the cases indicated in the preceding paragraph.”


11.   The Division Bench of the High Court took note of the  fact  that  the
non-obstante clause in Section 13  of  the  Rent  Act  only  gave  the  said
Section 13 an overriding effect  over  the  other  provisions  of  the  Act.
Section 13 was also made subject to the provisions  of  Section  15  of  the
Bombay Act.  This is in contrast to Section 21 of the  Karnataka  Act  which
had an overriding effect over any other law or  contract  to  the  contrary.
Section 15 which deals with the authority of  the  lessee  to  sub-lease  or
assign the leased rights/property, though, gives an overriding  effect  over
any other law has been  made  subject  to  any  contract  to  the  contrary.
Therefore, the terms of the lease and other cognate  provisions  of  law  is
not obliterated.  The Division Bench, in view of  the  above  provisions  of
the Bombay Rent Act, went on to hold that the “ratio of the decision  of  3-
Judge Bench of the Apex Court  in  Laxmidas  Bapudas  Darbar  (supra)  would
apply with much greater force for the benefit  of  the  lessee  under  fixed
long term lease in the State of Gujarat.” It is on the aforesaid basis  that
the Division Bench came  to  the  conclusion  that  the  Rent  Act  did  not
obliterate the effect of the provisions of Section 108(j)  of  the  Transfer
of Property Act which would vest a right in the lessee not  only  to  sublet
but also to assign the subject matter of the lease granted  to  him  by  the
original lessor.

12.   So far as the contention of the appellants that  as  the  company  has
been wound up it  no  longer  required  the  leased  land  for  its  use  is
concerned, the High Court, in the  impugned  judgment,  disagreed  with  the
aforesaid proposition  as  a  viable  and  acceptable  proposition  of  law.
Furthermore, it was held that the liability/obligation to pay rent  for  the
leased land does not constitute an onerous  obligation  on  the  company  in
liquidation so as to justify surrender of the leased land  by  the  Official
Liquidator or any direction to the said effect  under  Section  525  of  the
Companies Act.

13.   So far as the issue with regard to default in the payment of  rent  is
concerned, the High Court, in the light of its  views  with  regard  to  the
applicability of the  provisions  of  the  Transfer  of  Property  Act,  had
invoked both Section 114 of the Transfer of Property Act and Section 12  (3)
of the Rent Act to hold that as “the  secured  creditors  and  workers  have
always shown their readiness and willingness to pay  the  rent  and  arrears
thereof the lessors are not entitled to claim or get possession of the  land
leased to the company presently in winding up”. However,  in  the  operative
part of its order the Bombay High Court was pleased to observe as follows  :

“In view of the statement of Mr. RM Desai, learned counsel for  the  secured
creditor that the arrears of rent, if any, remaining unpaid by  the  company
in liquidation shall be paid by the secured creditor, we direct that  within
one month from today, the Official Liquidator shall supply  to  the  secured
creditor the particulars of the rent for the demised  land  for  the  period
upto 31st October, 2008, remaining unpaid so far, and the  secured  creditor
– State Bank of India shall deposit the amount with the Official  Liquidator
within one month thereafter. It will be open  to  the  lessors  to  withdraw
such amount.”

14.   On  behalf  of  the  appellants  it  is  urged  that  the  company  in
liquidation i.e. Prasad Mills Ltd. and the official liquidator appointed  by
the learned Company Judge in the liquidation proceedings involving the  said
company have rendered  themselves  liable  to  eviction  on  the  ground  of
default in payment of rent under Section 12 of the Rent Act.  It is  further
contended on  behalf  of  the  appellants  that  eviction  of  the  official
liquidator is required to be ordered on the grounds enumerated  in  Sections
13(1)(e) and 13(1)(k) of the Rent  Act.   Pointing  out  the  provisions  of
Section 15 of the Rent Act it has been urged that  the  official  liquidator
has assigned the property contrary to the provisions  of  Section  15,  such
act not being saved either by express term of the contract/lease deed or  by
the proviso to Section 15 of the Rent Act.  Sections 18 and 19 of  the  Rent
Act have also been relied upon by the appellants to show that  the  official
liquidator is not entitled to receive any payment apart  from  the  standard
rent.  It is urged that in the absence of any such  enabling  provision  not
only receipt of such  consideration  upon  assignment  is  illegal  but  the
property itself has become onerous being incapable of  earning  any  profit.
Besides, the property has ceased to serve the purpose of lease  in  view  of
the liquidation of the company.  Accordingly,  the  official  liquidator  is
liable to surrender the same to the original owners, it is urged.

15.   Shri P.S. Narasimha,  learned  Additional  Solicitor  General  on  the
other hand has submitted that the provisions of default  in  the  matter  of
payment of rent would not be attracted as the  secured  creditors  including
the State Bank of India had all along been ready  and  willing  to  pay  all
rents due.  In fact, the learned Additional Solicitor General has drawn  the
attention to the directions of the High Court contained in para  43  of  the
impugned judgment (extracted above) to contend that the  same  is  an  order
passed under Section 12(3)(b) of the Rent Act which, however, could  not  be
honoured in view of the interim order passed by this Court at  the  time  of
entertaining  the  special  leave  petitions.   Insofar  as  the   arguments
advanced on behalf of the appellants with  regard  to  Section  13(1)(e)  is
concerned, it is urged by the  learned  Additional  Solicitor  General  that
under Clause 7 of the lease deed dated 10.12.1916 subletting  is  admittedly
permissible.  In the present  case,  according  to  the  learned  Additional
Solicitor General, there is no  assignment.   In  this  regard  reliance  is
placed on two decisions of the Privy Council  in  Hans  Raj  vs.  Bejoy  Lal
Sel[4] and Ram Kinkar Banerjee vs. Satya Charan Srimani[5] to  contend  that
the law,  as  prevailing  in  India,  does  not  recognize  any  substantial
difference between subletting and assignment.   So far as  Section  13(1)(k)
is concerned, it is urged that the purpose of lease is not spelt out in  the
lease deed and in any event Section 13(1)(k) contemplates  non-user  of  the
leased premises without a reasonable cause.  In the present case, such  non-
user is on account of the fact that the company was ordered to be  wound  up
as far back as in the year 1989.
16.   The main plank on which the  appellants  have  based  their  case,  as
already noticed,  is  the  operation  of  Sections  12  (default),  13(1)(e)
(unauthorized assignment) and 13(1)(k) (non-user of the  leased  land).   We
may now take up the aforesaid issues in seriatim.

17.   Section 12 of the Rent Act confers  protection  on  a  tenant  who  is
regularly paying or is ready and willing to pay the rent.   In  the  present
case while there is no doubt that rent has not been paid, equally, there  is
no doubt that the secured creditors including the State Bank  of  India  had
all along been ready and willing to pay the rent and  the  reasons  for  non
payment appears to be (para 43 of the impugned  order  of  the  High  Court)
lack of communication by the official liquidator to the SBI of  the  precise
amount of rent due.  While there can be no doubt  that  mere  readiness  and
willingness to pay without actual payment cannot enure  to  the  benefit  of
the tenant in perpetuity what is required under Sub-section (2)  of  Section
12 is a notice in writing by the landlord raising a demand of rent and  only
on the failure of the tenant to comply with such notice within a  period  of
one month  that  the  filing  of  a  suit  for  recovery  of  possession  is
contemplated.  The service of notice giving an opportunity to the tenant  to
pay the unpaid rent is  the  first  chance/opportunity  that  the  Rent  Act
contemplates as a legal necessity incumbent on the  landlord  to  afford  to
the tenant. Admittedly, in the present case, no such notice as  contemplated
by Section 13 (2) has been issued by the landlord; at least  none  has  been
brought to our notice.  In such a situation, the readiness  and  willingness
of the tenant to pay the rent, though may have continued for a  fairly  long
time without actual payment, will not deprive the tenant of  the  protection
under the Rent Act.  Though the order of the High Court in para  43  of  the
impugned judgment has been  placed  before  the  Court  as  an  order  under
Section 12(3)(b) of the Rent Act we do not find the said order to be of  the
kind contemplated by Section 12(3)(b) inasmuch as not only  the  order  does
not mention any specific rent which has to be tendered in Court but what  is
encompassed therein is a direction to the official  liquidator  to  let  the
State Bank of India know the precise amount that is required to be  paid  on
account of rent and, thereafter, to pay the same to the official  liquidator
whereafter it has been left open  for  the  lessors  to  withdraw  the  said
amount from the official  liquidator.   Such  an  order  by  no  stretch  of
reasoning  would  be  one  contemplated  under  Section  12(3)(b).   In  the
aforesaid situation, the finding of the High Court that the landlord is  not
entitled to seek eviction on  the  ground  of  non  payment  of  rent  under
Section 12 of the Bombay Rent Act cannot be said to be so inherently  infirm
so as to require the interference of this Court.

18.   This will bring the Court to a consideration of the liability  of  the
official liquidator to a decree  of  eviction  on  the  ground  contemplated
under Section 13(1)(e) of the Bombay Rent Act.  As already  discussed  in  a
preceding paragraph of  the  present  order,  the  non  obstante  clause  of
Section 13 (1) overrides only the other provisions of the  Bombay  Rent  Act
and is also subject to the provisions  of  Section  15.   Section  15  which
deals  with  sub-letting  and  transfer,  though  overrides  the  provisions
contained in any other law, is subject to  any  contract  to  the  contrary.
Though in the present case the lease deed (clause 7)  is  capable  of  being
read as permitting sub-letting and not assignment  what  has  been  held  in
the present case by the High Court, by virtue of the decision of this  Court
in Laxmidas Bapudas Darbar vs. Rudravva (supra), is  that  in  view  of  the
limited operation of the non obstante clause in Section  15  of  the  Bombay
Rent Act, unlike Section 21 of the Karnataka  Act,  the  provisions  of  the
Transfer of Property Act [Section 118 (o)] will  not  become  irrelevant  to
the relationship between the parties in which event assignment may  also  be
permissible notwithstanding the specific content of clause 7  of  the  lease
deed in question. However, we need not dwell on this issue at any length  or
would also be required to consider the efficacy  of  the  arguments  of  the
learned Additional Solicitor General  on  the  strength  of  the  two  Privy
Council decisions mentioned above i.e. Hans Raj vs. Bejoy Lal  Sel  and  Ram
Kinkar Banerjee vs. Satya Charan Srimani (supra) inasmuch  as  from  Company
Application No. 34 of 2004, which deals with the  claim  of  the  appellants
for eviction of the official liquidator from the leased  property,  what  is
clear and evident is that the case of sub-letting of the leased premises  on
which basis eviction has been prayed for is  not  sub-letting/assignment  by
the official liquidator but assignment of  the  leased  premises  to  Prasad
Mills by the original managing agents in whose favour the initial lease  was
executed  by  the  predecessors  of  the  present  owners.  The  ground   of
unauthorized and impermissible assignment by the official liquidator on  the
strength of  the  notice/advertisement  for  disposal  of  the  leased  land
thereby making the  said  authority  liable  for  eviction  is  an  argument
advanced only at the hearing of the appeals before us. That apart  the  said
argument overlooks the fact that the assignment was only sought to  be  made
by the advertisement/notice issued and did not amount to a completed  action
on the part of the  official  liquidator  so  as  to  attract  the  relevant
provisions of the Bombay Rent Act dealing with the  consequential  liability
for eviction.  Such argument also belies the  injunctive/prohibitory  relief
sought for in the Company Applications, as already noticed, insofar  as  the
contemplated  sale/transfer/assignment  of  the  leased  property   by   the
official liquidator is concerned. The arguments advanced on the strength  of
the provisions of Section 19  of  the  Bombay  Rent  Act  would  also  stand
answered on the above basis.

19.   Insofar as liability under Section 13(1)(k) of the Bombay Rent Act  is
concerned what is to be noticed is the requirement of  unjustified  non-user
for a period exceeding 6 months which evidently is not be attracted  to  the
present case in view of the pendency of the liquidation  proceedings.   That
apart, Clause 5 of the lease deed which deals with non-user  of  the  leased
land does not contemplate eviction on account of such  non-user  but  merely
entitles the lessor to receive rent for the period of such non-user  of  the
land.

20.   The mere fact that the company has been ordered to be wound up  cannot
be a ground to direct the official liquidator to handover possession of  the
land to the owners inasmuch as  the  company  in  liquidation  continues  to
maintain its corporate existence until it stands dissolved  upon  completion
of the liquidation proceedings in the manner contemplated by  the  Companies
Act.  In the present case it  has  been  repeatedly  submitted  before  this
Court by both sides that presently revival of Prasad Mills is a  live  issue
pending before the Gujarat High Court, a fact which  cannot  be  ignored  by
this Court in deciding the above issue against the appellants.

21.   For the aforesaid reasons we affirm the order of the High Court  dated
17.10.2008 in O.J. Appeal Nos. 65 of 2006, 66 of 2006 and  67  of  2006  and
dismiss the civil appeals arising out of SLP(C)  Nos.  29282-29284  of  2008
wherein the said order is under challenge.

22.  The other civil appeals, which have  been  heard  analogously,  can  be
divided into two categories.  The first is where the order dated  17.10.2008
passed in O.J. Appeal No. 65 of 2006 [Jabal C. Lashkari & Ors. Vs.  Official
Liquidator & Ors.] impugned in civil appeals  arising  out  of  SLP(C)  Nos.
29282-29284 of 2008 has been followed.  In the other  group  are  the  cases
where the said order has been followed and also  an  additional  ground  has
been cited namely that in view of  the  order  dated  17.07.2006  passed  in
Company Application No. 250 of 2006 a direction has been issued to  handover
possession of the  leased  premises  to  the  State  Government;  hence  the
question of putting the property to sale does not arise.
23.   Though we have affirmed the order  dated  17.10.2008  of  the  Gujarat
High Court passed in  O.J. Appeal Nos. 65 of 2006, 66  of  2006  and  67  of
2006 and dismissed the civil appeals arising out of SLP(C) Nos.  29282-29284
of 2008 [Jabal C. Lashkari & Ors.  Vs.  Official  Liquidator  &  Ors.],  our
decision to affirm the said judgment  of  the  High  Court  is  based  on  a
consideration of the specific clauses in the lease deed between the  parties
to the case.  What would be the effect of the principles of  law  underlying
the present order vis-a-vis the specific clauses of the lease  deed  between
the parties in the other cases is a question that has to  be  considered  by
the High Court in each of the cases.  That apart  whether  the  order  dated
17.07.2006 passed in Company  Application  No.  250  of  2006  has  attained
finality in law and forecloses  the  question  raised  and  further  whether
constructions have been raised on such land by the State Government for  the
benefit of the general public, as has been submitted  to  dissuade  us  from
interfering with the order of the  High  Court,  are  questions  that  would
require a  full  and  complete  consideration  by  the  High  Court  on  the
materials available. To enable the said exercise to be  duly  performed,  we
set aside the order of the High Court impugned  in  each  of  the  aforesaid
civil appeals and remit all the matters  to  the  High  Court  for  a  fresh
consideration in accordance with the  observations  and  principles  of  law
contained in the present order.

                                                .……......................,J.
                                                                     [RANJAN
                                   GOGOI]


                                                .……......................,J.
                                                                  [PRAFULLA
                                  C. PANT]

NEW DELHI,
MARCH 29, 2016.
-----------------------
[1]

       2001 (7) SCC 409
[2]    1979 (4) SCC 214
[3]    1994 (2) SCC 671
[4]    [AIR 1930 PC 59]
[5]    [AIR 1939 PC 14]