in Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd.[7] a two-Judge Bench eloquently exposited the test which is to the following effect:- “We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given.”- tenders are floated and offers are invited for highly complex technical subjects. It requires understanding and appreciation of the nature of work and the purpose it is going to serve. It is common knowledge in the competitive commercial field that technical bids pursuant to the notice inviting tenders are scrutinized by the technical experts and sometimes third party assistance from those unconnected with the owner’s organization is taken. This ensures objectivity. Bidder’s expertise and technical capability and capacity must be assessed by the experts. In the matters of financial assessment, consultants are appointed. It is because to check and ascertain that technical ability and the financial feasibility have sanguinity and are workable and realistic. There is a multi-prong complex approach; highly technical in nature. The tenders where public largesse is put to auction stand on a different compartment. Tender with which we are concerned, is not comparable to any scheme for allotment. This arena which we have referred requires technical expertise. Parameters applied are different. Its aim is to achieve high degree of perfection in execution and adherence to the time schedule. But, that does not mean, these tenders will escape scrutiny of judicial review. Exercise of power of judicial review would be called for if the approach is arbitrary or malafide or procedure adopted is meant to favour one. The decision making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint. Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO. 10143 OF 2016
                      (@ S.L.P. (C) No. 29297 of 2016)


Montecarlo Ltd.                                …Appellant(s)

                                   VERSUS

NTPC Ltd.                                    …Respondent(s)




                               J U D G M E N T

Dipak Misra, J.





      The respondent, NTPC Limited, had issued separate invitation for  bids
for development and operation  of  three  coal  mines,  viz.,  Dulanga  Coal
Block, Chatti Bariatu and Talaipalli in the State of  Odisha.   Online  bids
were invited on Single Stage Two Envelope Bidding basis (Envelope-I: Techno-
Commercial Bid and  Envelope-II:  Price  Bid).  There  was  stipulation  for
Reverse Auction from the  eligible  bidders.  It  was  also  stated  in  the
Invitation For Bids (IFB) issued  on  22.01.2016  that  the  bids  shall  be
received on 17.03.2016 and Envelope-I, that is, Techno-Commercial  Bid  will
be opened on 17.03.2016. The date of opening of Envelope-II, that is,  Price
Proposal shall be intimated separately.  Clause  5  of  the  IFB  stipulated
Qualifying Requirements (QR).  Clauses 5.1 and 5.1.2  dealt  with  technical
criteria.

2.    The respondent had also issued “Instructions To Bidders”  (ITB)  which
contain clauses as to how the proposal shall be conducted. Clause  6.3.1  of
ITB deals with Preliminary Examination of  Techno-Commercial  Proposals.  We
think it appropriate to reproduce the same:-

“6.3.1 Preliminary Examination of Techno-Commercial Proposals:

(a) OWNER will examine the Project Proposals to determine whether  they  are
complete, whether required  securities  have  been  furnished,  whether  the
documents have been properly signed and whether the bids  are  generally  in
order.

(b) Prior  to  the  detailed  evaluation,  OWNER  will  initially  determine
whether each  Techno  Commercial  Proposal  is  of  acceptable  quality,  is
generally  complete  and  is  substantially  responsive   to   the   bidding
documents.  For purposes of this determination, a  substantially  responsive
Proposal  is  one  that  conforms  to  all   the   terms,   conditions   and
specifications  of  the  bidding  documents  without  material   deviations,
objections,  conditionalities  or  reservations.   A   material   deviation,
objection, conditionality or reservation is one  (i)  that  affects  in  any
substantial way the scope, quality or  performance  of  the  contract;  (ii)
that  limits  in  any  substantial  way,  inconsistent  with   the   bidding
documents, the Owner’s rights or the successful Bidder’s  obligations  under
the contract;  or  (iii)  whose  rectification  would  unfairly  affect  the
competitive position of  other  Bidders  who  are  presenting  substantially
responsive Proposals.

(c) OWNER’s determination of a Techno Commercial  Proposal’s  responsiveness
is to be based on the contents of  the  Techno  Commercial  Proposal  itself
without recourse to extrinsic evidence.  If a Techno Commercial Proposal  is
not substantially responsive, it will be rejected  by  OWNER,  and  may  not
subsequently  be  made  responsive  by  the  Bidder  by  correction  of  the
nonconformity.”


3.    Clauses 6.3.2 6.3.2.1, 6.3.2.2 and 6.3.4  provide  for  Evaluation  of
Responsive   Techno-Commercial   Proposal,   Evaluation   of   Qualification
Proposals, Evaluation of  Technical  Proposals  and  Clarification  Meeting.
Clause 6.3.5 deals with the steps  where  the  responsive  Techno-Commercial
Proposal  which  meets  the  QR  specified  in  Chapter  7   and   Technical
Requirements specified in Chapter 8 of REF  Documents  and  stipulates  that
they shall be considered for Price Proposal Phase of  the  Bidding  Process.
It has also been provided therein that the bidders who meet QR specified  in
Chapter  7  and  Technical  Requirements  specified  in  Chapter  8  of  REP
documents shall be terms as “shortlisted bidders”.   Chapter 7 of ITB  deals
with technical criteria. Clauses 7.1.1 and  7.1.2,  being  significant,  are
extracted below:-

“7.1.1 The Bidder should have, in the preceding  7  (seven)  years  reckoned
from the date of opening of the Techno-commercial Bids developed &  operated
single coal/lignite mine  having  coal/lignite  reserves  of  at  least  150
million tonnes & annual capacity of at least 6 MTPA and produced at least  2
million tonnes of coal/lignite from such mine.

                                  OR

7.1.2 The Bidder should have, in the  preceding  7  (seven)  years  reckoned
from the date  of  opening  of  the  Techno-commercial  Bids,  operated  and
produced:

a) At least 23  Million  SCM  of  aggregated  volume  of  overburden  and/or
coal/lignite from a maximum of seven open cast  mines  of  Coal/Lignite,  in
any year.

b) At  least  11.5  Million  SCM  of  composite  volume  of  overburden  and
coal/lignite from single open cast mine in any year, out of which  at  least
3 million tonnes shall be coal/lignite.

The qualifying works at clause 7.1.2(a) can be from same mine  or  different
mines including the  mine  considered  to  meet  qualifying  requirement  at
clause 7.1.2(b).”

4.    At this stage, it is necessary to refer to Notes  appended  to  Clause
7.3.3 that deals with route-3.   Notes are as under:-

“i. The word “operated” means that the  Bidder  should  have  performed  the
necessary activities of drilling, excavation, hauling etc.  on  its  own  or
through sub-contracting.
ii. The word “developed” means that the Bidder  should  have  performed  the
necessary activities  of  Land  Acquisition/assisted  in  Land  Acquisition,
Statutory  clearances/assisted  in  Statutory  clearances  and  carried  out
‘Infrastructure development’ on its own or through sub-contracting.”

5.    Chapter 9 of the ITB deals with  Evaluation  Methodology  for  Techno-
Commercial  Proposal  (Qualification  Proposal  and   Technical   Proposal).
Clause 9.1 deals with Evaluation of Qualification Proposal  and  Clause  9.2
deals with Evaluation of Technical Proposal.  They read as under:-

“9. Evaluation Methodology for  Techno  Commercial  Proposal  (Qualification
Proposal and Technical Proposal)

9.1 Evaluation of Qualification Proposal:

The  Techno-Commercial  Proposal   shall   be   scrutinized   to   establish
“responsiveness” as per Clause 6.3.1.

The Responsive Techno-Commercial Proposal shall be evaluated  in  detail  to
determine their fulfillment of Qualifying requirements specified in  Chapter
7 of this RFP document.

During the bid evaluation, NTPC may, at its discretion, ask the  Bidder  for
a  clarification  of  its  Qualification  Proposal   including   documentary
evidence  pertaining  to  only  the  reference   mines   declared   in   the
Qualification Proposal for the purpose  of  meeting  Qualifying  Requirement
specified in Chapter 7 of this RFP document.  The request for  clarification
and the response shall be in writing and no change in the substance  of  the
TECHNO-COMMERCIAL Proposal including substitution of reference mines in  the
Qualification Proposal by new/additional mines for conforming to  Qualifying
Requirement shall be sought, offered or permitted.

The Qualification Proposals which meets the qualification criteria shall  be
considered for Technical Proposal Evaluation Phase of the  Bidding  Process.
The  Bidders  who  meet  the  qualification  criteria  shall  be  termed  as
Qualified Bidders.

9.2 Evaluation of Technical Proposal:

The Technical Proposals shall be evaluated  to  determine  their  compliance
with the Technical Proposal Requirements.  For this purpose, NTPC shall  use
the supporting documents and/or information available with  or  obtained  by
NTPC.

9.2.1 During evaluation NTPC may seek clarification from  the  Bidders,  may
conduct discussions with the  Bidders,  and  may  ask  the  bidder  to  make
Technical presentation.

Technical proposal shall include details as has been sought vide Chapter 8.

9.2.2 The Technical Proposals without  sufficient  information  as  per  the
terms of Chapter  8  of  this  document  shall  be  deemed  “Non  Responsive
Technical Proposal”.

9.2.3 The Responsive Technical Proposals meeting  the  requirements  to  the
satisfaction of Owner shall be considered  for  further  detailed  Technical
Evaluation.”
                                                            [emphasis added]



6.    Clause 9.3 provides how detailed  evaluation  of  technical  proposals
submitted by the bidder shall take place. Clauses 9.3.1 and 9.3.2 which  are
relevant for the present purpose are reproduced below:-

“9.3.1 The purpose of  technical  evaluation  is  to  check  responsive  and
assess the compliance with the requirements of NTPC.

9.3.2 To ensure effective evaluation  of  Technical  Proposals  the  Bidders
shall provide  the  necessary  details  as  specified  in  Clause  8.4.  The
Technical evaluation will be for evaluating whether the  Technical  Proposal
of the Bidder meets the following criteria.

(a) Time Schedule to Achieve First Year Coal Production Target – NTPC  shall
evaluate  the  PERT  chart  submitted  by  the  Bidder,  to  determine   its
completeness; reasonableness; and achievability.

(b) Adequacy of the Equipment Plan – The Bidder shall  submit  an  equipment
plan giving details of  the  equipment  that  shall  be  used  by  the  Mine
Operator to provide Mining  Services  which  shall  be  not  less  than  the
Minimum Equipment to be deployed as specified  by  NTPC  at  Schedule  6  of
Project Agreement. NTPC shall evaluate the adequacy  of  equipment  to  meet
the criteria imposed by NTPC in terms of quantity of production, quality  of
coal produced etc.”
                                                         [emphasis supplied]

7.    The controversy in the instant case basically pertains to whether  the
appellant meets the qualification criteria as  provided  under  the  heading
Technical Criteria that occurs in Clauses 7.1 and 7.2 of QR.  To  appreciate
the same, it is essential to have  a  look  at  the  bid  submitted  by  the
appellant.   The  appellant  had  uploaded  the  proposal  on  26.4.2016  by
referring to three mines in support of its stand to meet the QR.  The  three
mines that have been referred to in the  proposal  are  (i)  Mata  No  Madh,
Lignite Mine, Kutch, GMDC  (Mine  1);  (ii)  June  Kundada  OCP  of  Western
Coalfield Limited (Mine 2) and (iii) Khadia OCP, Northern Coalfield  Limited
(Mine 3). As regards the Mine No. 1, the appellant declaring  the  scope  of
work in the aforesaid Mine had furnished the following details:-

|“Sl.|Particulars           |Mine 1 (Lignite Project, Mata|
|No. |                      |No Madh, Kutch)              |
|10. |Brief description of  |Turnkey mining Contract      |
|    |scope of work         |involving overburden/inter   |
|    |                      |burden removal, excavation   |
|    |                      |and/or loading of lignite    |
|    |                      |from mines face and ancillary|
|    |                      |activities                   |
|11. |Drilling              |Yes/No                       |
|    |Carried out Drilling  |Our own/subcontracting       |
|    |on our own or through |                             |
|    |subcontracting        |                             |
|    |Excavation            | Yes/No                      |
|    |Carried out Excavation|Our own/subcontracting       |
|    |on our own or through |                             |
|    |subcontracting        |                             |
|    |Hauling               |Yes/No.                      |
|    |Carried out Excavation|Our own/subcontracting”      |
|    |on our own or through |                             |
|    |subcontracting        |                             |




8.    As the proposal would reflect, the  appellant  had  not  provided  the
information that it had carried out the  drilling  in  the  aforesaid  Mine,
namely,  Mata  No  Madh.  The  respondent-owner  sent  a  communication   on
17.5.2016 seeking certain clarification  pertaining  to  the  QR  and  other
aspects. The High Court has referred to the said communication and we  think
it necessary to reproduce the same:-

“Ref:01/CS-7014-602(R1)-9-PAA Dated: 17.05.2016
To,
M/s. Montecarlo Limited,
706, Ship Building, Near Municipal Market,
C.G. Road, Navrangpura, Ahmedabad-380 009,
Gujarat, India

Kind Attn. Sh. Shekhar Shanna, Sr. General Manager

Sub: Development and  Operation  of  Dulanga  Coal  Block  as  per  IFB  No.
40051319; Bid Doc. No.CS-7014-802(R1)-9

Dear Sir,

1.0 This has reference to  your  Project  Proposal  (Techno-Commercial  Bid)
against IFB No.40051319 for  the  subject  package.  You  are  requested  to
furnish the following information  with  respect  to  the  details/documents
furnished in the bid for qualification requirement data:

(i) Against QR requirement of Clause 7.1.2 of ITB: It  is  observed  in  the
Contract Agreement dtd. 11.02.2014 submitted by the  bidder  in  support  of
meeting qualifying requirement for Lignite  project  Mata  No  Madh,  Kutch,
Gujrat that the necessary activity of drilling as  per  stipulations  of  QR
(sr.no. i of Notes) is not mentioned. The same may please be clarified  with
supporting documents.

(ii) Against QR requirement of Clause 7.2 of ITB: Details of Other non  cash
expenses in Million for calculating Annual Cash Accrual for three year  viz.
2013-14, 2014-15 & 2015-16

2.0 It is requested that the  requisite  information  along  with  necessary
documents be furnished to us at the earliest, preferably by 24.05.2016.

3.0 It may please be noted that seeking the above clarifications should  not
be  construed  that  the  bid  submitted  by  you   is   considered   techno
commercially  responsive  and/or  meeting  the  Qualification   requirements
(QR).”

9.    The response that was given by the appellant on 21.5.2016  is  to  the
following effect:-

“A) Para 1.0 (i) of your above letter against QR of Clause 7.1.2 of ITB:  We
are attaching the followings:

a) A certificate from GMDC (client of our Lignite Project at Mata  No  Math)
Vide No.GMDC/MMLG/298/2016-17 dated 18.05.2016 mentioning our scope on  this
Turnkey  Project  which  includes  activities  of  Mine  Planning,   Quality
Control, Drilling, Ripping, Dust suppression,  Nala  Diversion,  preparation
of Garland drain, dewatering of Monsoon and seepage water,  preparation  and
monitoring of haul road for better  hauling  as  required  to  complete  the
mining process.

b) Certificates from Northern Coalfields Ltd. (NCL) and  Western  Coalfields
Ltd. (WCL) are also attached herewith mentioning drilling  as  part  of  the
Mining Process of these projects as ready reference:

i) NCL Certificate No.GM/KSL/2016/460 dated 31.03.2016
ii) NCL Certificate No.GM/KSL/25 dated 24.04.2016
iii)NCL Certificate No.GM/KHD/OS/2016/43 dated 23.04.2015
iv)WCL Certificate No. WCL/MA/MGR/JKOC/2015/400 dated 04.12.2015
v) WCL Certificate No. WCL/MA/MGR/JKOC/2015/27 dated 14.04.2016

Further, as you are kindly aware that Indian Lignite deposits occur  in  the
Tertiary sediments in  southern  and  western  parts  of  peninsular  shield
particularly  in  Tamilnadu,  Rajasthan  and  Gujarat.  The  Overburden  and
interburden comprises of Clay, Claystone, mudstone and as  well  as  lignite
[Geologically younger  sediments  (Formations)  then  occurrences  of  Coal]
which can be excavated by hydraulic Shovel dumper combination. As  such,  in
lignite deposits of Tamilnadu, Gujarat and Rajasthan,  Blast  hole  drilling
is normally not required.

B) Para 1.0 (ii) of your above letter against QR of Clause 7.2 of ITB:

We are attaching the following:

a) Financial certificate of last 3 years

We hope that the above submission clarifies your points on QR requirement;

If your require further clarification/information  in  this  regard,  kindly
inform us. We shall be pleased to provide the same at your convenience.”

10.   To  the  said  letter,  a  document  issued  by  the  Gujarat  Mineral
Development Corporation Ltd (GMDC) dated 18.5.2016 was  enclosed.  The  said
certificate reads as follows:-

“GMDC/MMLG/298/2016-17   Dated:18.05.2016

                           To Whom It May Concern

This  is  to  certify   that   the   Turnkey   Mining   Contract   involving
Overburden/Inter burden removal, Excavation and/or Loading of  Lignite  from
mining face and ancillary activities at Lignite project, Mata No  Madh  Vide
Tender Notice No. (R1)/LP/01/13-14 dated 30.08.2013,  has  been  awarded  to
M/s. Montecarlo Limited,  having  registered  office  at  7th  Floor,  Shilp
Building, Nr. Municipal Market, C.G. Road, Navrangpura, Ahmedabad –  380009,
Gujarat, India.

Name of Work: Turnkey  Mining  Contract  involving  Overburden/Inter  burden
removal, Excavation and/or loading of Lignite from mines face and  ancillary
activities at Lignite project, Mata No Madh.

Name of Contractor     : M/s. Montecarlo Limited

LOI No.                : GMDC/LP/13306/13-14
  Dated: 15/01/2014
Estimated Cost/
Contract Value         : 663.04 Cr.
Awarded Quantity       : Over Burden (1109.00)
                   Lac CUM
                         Lignite (148.00) Lac MT
Contract Period  : 28.01.2014 to 27.01.2019

The scope of Project is to carry  out  mining  operation  on  Turnkey  basis
comprising of removal of  over  burden,  inter  burden  and  lignite  and/or
loading from mines faces using hydraulic showel and dumper  combination  and
other activities like Mine Planning,  Quality  control,  Drilling,  Ripping,
Dust suppression, Nala Diversion, preparation of Garland  drain,  dewatering
of Monsoon and seepage water, preparation and monitoring of  haul  road  for
better hauling etc. as required to complete the mining process.

Quantities Executed (year-wise) by M/s. Montecarlo Limited are shown below:

|Sr. |Period     |Over Burden  |Lignite      |Total Work   |
|No  |           |Removal (cum)|Dispatched   |Done Amount  |
|    |           |             |(MT)         |(Rs.)        |
|1   |28.01.2014 |18,24,674.03 |7,64,791.18  |33,59,23,240.|
|    |To         |             |             |00           |
|    |31.03.2014 |             |             |             |
|2   |01.04.2014 |1,37,54,520.7|32,10,961.46 |135,57,06,364|
|    |To         |6            |             |.00          |
|    |31.03.2015 |             |             |             |
|3   |01.04.2015 |1,45,66,445.2|13,68,861.67 |55,38,02.,253|
|    |To         |2            |             |.00          |
|    |31.03.2016 |             |             |             |


M/s.  Montecarlo  Limited  successfully  carried  out  Dewatering  of  Mine.
Yearwise details are shown for dewatering by deploying  high  capacities  of
Diesel and Electrical operated pump:

|Sr. No.     |Period             |Dewatering in Lac m3    |
|1.          |01.04.2015         |65.0                    |
|            |To                 |                        |
|            |31.03.2016         |                        |


This  certificate  is  issued  as  per  their  request   vide   letter   no.
ML(P)/mn/4190/clt/2016-17/020 date: 18.05.16 for applying tender.”

11.   On the basis of the said  communications,  the  respondent  formed  an
opinion that the bid of the appellant was technically  non-responsive.   The
reason for arriving at the said conclusion by the respondent  was  that  the
appellant did  not  have  necessary  experience  of  drilling  for  blasting
purposes.  As the appellant was regarded as technically  non-responsive,  it
invoked  the  jurisdiction  of  the  High   Court   challenging   the   said
determination made by the respondent.  It  was  contended  before  the  High
Court that the tender documents that contained QR was of the  experience  of
a bidder in only drilling, excavation and hauling, etc. and not blasting  or
drilling for blasting purposes.  It was further  urged  that  the  scope  of
work for Dulanga Mines projects which was taken into  consideration  by  the
respondent in evaluating the technical proposal of the petitioner  as  being
non-responsive had been wrongly  understood.  The stand of NTPC  before  the
High  Court  was  that  the  assessment  by  the  Technical  Committee   was
absolutely justified and the writ petitioner therein did  not  meet  the  QR
and, therefore, was treated as non-responsive.

12.   The High Court referred to how tender  documents  that  reflected  the
nature of mine operations, how blasting is an inherent part and drilling  is
differently understood in the  sense  that  the  appellant  had  understood.
Thereafter, placing reliance on Tata Cellular  v.  Union  of  India[1]   and
Michigan Rubber (India) Ltd. v. State of Karnataka and Ors.[2], it  came  to
hold that the decision taken by the owner was correct and did not  adversely
affect public interest but subserved  the  public  purpose.  Being  of  this
view, the High Court dismissed the writ petition. Hence, the present  appeal
by special leave.

13.   We have heard Mr. P.  Chidambram  and  Mr.  Harin  P.  Raval,  learned
senior counsel with Mr. Sandeep Singh, learned  counsel  for  the  appellant
and Mr. Vikas Singh, learned senior counsel with  Mr.  Ankit  Jain,  learned
counsel for the respondent.

14.   The dispute and the dissention between the parties  rest  on  how  the
Chapter 7 (QR) of ITB that contains Clause 7.2  that  deals  with  technical
criteria is to be understood.   We are  not  really  concerned  with  Clause
7.1.  The centrality of controversy  hinges  on  the  interpretation  to  be
placed on Clause 7.1.2.  It is submitted by Mr. Chidambram,  learned  senior
counsel appearing  for  the  appellant  that  the  appellant  satisfied  the
condition as postulated in the QR under Clause 7.1.2 (a)  and  Clause  7.1.2
(a) stipulates that 23  Million  BCM  of  aggregated  volume  of  overburden
and/or  coal/lignite  from  a  maximum  of  seven   open   cast   mines   of
coal/Lignite, in any year and clause 7.1.2. (b)  lays  down  that  at  least
11.5 Million BCM of composite volume of  overburden  and  coal/lignite  from
single open cast mine in any year, out of which at  least  3  million  tones
shall  be coal/lignite.   Learned senior counsel would lay emphasis  on  the
documents which the appellant had filed to show that  it  had  operated  and
produced  from  single  mine  11.5  Million  BCM  of  composite  volume   of
overburden and coal/lignite from single  open  cast  mine  in  a  year.  Mr.
Singh, learned senior counsel resisting the said stance would urge that  the
appellant does not satisfy the condition of drilling as  is  required  under
the QR regard being had to the nature of  work.  In  this  context,  we  may
usefully take note of the definition  of  “operated”.   The  said  term,  as
defined,  means  activities  of  drilling  and  excavation.   The  documents
produced by the appellant indicate the scope of  work  including  activities
of operation of coal/lignite mine. It reads as follows:-

|“10.|The scope of work includes the following activities of operation |
|    |of the Coal/Lignite Mine                                         |
|    |Drilling      |Yes/No            |Yes/No           |Yes/No       |
|    |Carried out   |Our own/sub       |Our own/         |Our own/sub  |
|    |Drilling on   |contracting       |sub contracting  |contracting  |
|    |our own  or   |                  |                 |             |
|    |through sub   |                  |                 |             |
|    |contracting   |                  |                 |             |
|    |Excavation    |Yes/No            |Yes/No           |Yes/No       |
|    |Carried out   |Our own/ sub      |Our own/sub      |Our own/ sub |
|    |Excavation on |contracting       |contracting      |contracting  |
|    |our own or    |                  |                 |             |
|    |through sub   |                  |                 |             |
|    |contracting   |                  |                 |             |
|    |Hauling       |Yes/No            |Yes/No           |Yes/No       |
|    |Carried out   |Our own/sub       |Our own/         |Our own/     |
|    |Hauling on our|contracting       |sub contracting  |sub          |
|    |own or through|                  |                 |contracting  |
|    |sub           |                  |                 |             |
|    |contracting   |                  |                 |             |


|S.No|Particulars|Mine 1              |Mine 2          |Mine 3        |
|.   |           |                    |                |              |
|11  |Annual     |Year (From          |Year (From      |Year (From    |
|    |Production |01.04.2014          |01.04.2014      |01.04.2014 to |
|    |in Million |to                  |to              |31.03.2015)   |
|    |Bank Cubic |31.03.2015)         |31.03.2015)     |              |
|    |Meters.    |                    |                |              |
|    |Bidder to  |                    |                |              |
|    |refer Note |                    |                |              |
|    |(vii) of   |                    |                |              |
|    |the        |                    |                |              |
|    |Qualifying |                    |                |              |
|    |Requirement|                    |                |              |
|    |s of       |                    |                |              |
|    |Chapter 7  |                    |                |              |
|    |           |Coal/   |Overburden |Coal/   |Overbur|Coal/L|Over   |
|    |           |Lignite |(in Million|Lignite |den (in|ignite|burden |
|    |           |(in MT) |BCM)       |(in MT) |Million|(in   |(in    |
|    |           |        |           |        |BCM)   |MT)   |Million|
|    |           |        |           |        |       |      |BCM)   |
|    |           |3.210   |13.754     |1.221   |3.386  |-     |12.707”|
|    |           |Million |           |Million |       |      |       |
|    |           |Tonne   |           |Tonne   |       |      |       |


15.   We have already analysed what is covered by  the  word  “operated”  as
per ITB. In this regard, the High Court has referred  to  Schedule  II  that
deals with description of mining services.  Clause 5  deals  with  the  Mine
Operations.  We think it appropriate to reproduce Clauses 5.1, 5.9 and  5.10
of the same:-

“5.1. The Mine Operator shall construct and operate the Site  in  accordance
with the following scope:

(a) Plan the mine (Site), its development and construction

(b) Strip OB and store such OB on dumps

(c) Mine and extract coal in accordance with the requirements of Owner

(d) Make provisions for HEMM,  other  mining  machinery  and  its  effective
maintenance

(e) Implement, and comply with EMP and environmental clearances;

(f) Construction, maintenance and operation of mine dewatering plant,  sump,
and garland drains with de-silting provisions

(g) Construct and maintain all access ways and haul roads

(h) Arrangement and use of explosives, as per Indian Explosives Act

(i) Drilling and blasting

(j) Construction  and  maintenance  of  wokshops,  stores  etc  as  per  the
requirement.

(k)  Construction,  Operation  and  maintenance  of  complete  power  supply
system.

(l) Mine illumination as per prevalent laws

(m) Arrangement of petrol/diesel, oil and lubricants.

(n) (if applicable) control any spontaneous combustion on Site

(o) Conduct advance infill drilling.

(p) OB  dump  management  including  rehandling  of  internal  dump  as  per
Environmental Clearance.

(q) Progressive  mine  closure  with  effective  land  reclamation  plan  in
accordance with approved mine closure plan.  The Mine Operator shall  submit
to the Owner  the  annual  financial  statement  of  cost  incurred  towards
progressive   mine   closure   activities   duly   certified   by   National
Environmental  Engineering  Research  Institute  (NEERI)  or  Central   Mine
Planning & Design Institute Limited (CMPDIL) or any other institute  as  may
be notified by the Government for these purpose to an  acceptable  level  by
the Coal Controller.

(r) POL Store shed

(s) Development of Power Supply Distribution System beyond  33KV  switchgear
breaker terminals  of  Darlipalli  STPP  for  various  equipments/facilities
included in Mine Operator’s scope.

x           x          x

5.9 Blasting:

Blasting shall be required for coal and selectively for overburden with  the
objective of  achieving  good  fragmentation  so  that  the  excavators  can
operate at high levels of efficiency.

5.10 Overburden and Inter burden Removal:

The  terms  overburden  and  interburden  are  each  included  in  the  term
overburden below unless noted otherwise.  The  Mine  Operator  shall  ensure
the following in respect of Overburden removal:

(a) The Mine Operator shall assess the admissibility of accommodation of  OB
volume in  the  external  dump/in-pit-dump  and  accordingly  if  warranted,
notify or seek necessary clearances/ approvals from  appropriate  authority,
keeping in view the stipulation  of  MoEF,  contained  in  Forest  Clearance
Stage – 1, dated 10.01.2014.

(b) The Mine Operator’s daily and  weekly  scheduling  shall  be  consistent
with the AAPP. All levels, benches,  haul  roads,  and  highwalls  shall  be
consistent  with  the   Monthly   Production   Plans   and   the   statutory
requirements.

(c) Weekly digging plans shall contain recommended  methods  for  excavation
and removal of overburden including blasting plans if needed.

(d) The Owner shall not be responsible for any  costs  associated  with  the
Mine Operator inefficiently scheduling daily and weekly activities.

(e) The Mine Operator considers itself fully  aware  of  conditions  of  the
Overburden in the mining area. No claim for lack of knowledge  of  the  site
conditions shall be allowed.

(f) Reasonable efforts shall be made to keep coal clean and free from  soil,
overburden,  rock,  clay,  parting  bands,  steel,  stones,  timber,   rags,
equipment parts or any other deleterious material.

(g) The Mine Operator shall ensure the quality of the coal is  not  affected
by its mining methods which cause coal ash to rise above the  target  levels
presented in AAPP.

(h) Water in the pit shall be kept to a minimum.

(i) Fires or hot spots in the coal shall be handled  expeditiously  and  not
transported to the crusher.  The Owner shall be notified of any  significant
occurrence. Oxidized coal shall be treated as  Overburden  for  compensation
purposes.

(j) Any equipment repairs on the coal bench shall be cleaned  after  use  to
prevent contamination.

(k) All equipment  shall  undergo  pre  shift  inspections  including  loose
bucket teeth or other parts.

(l) The Mine Operator shall be responsible to provide equipment to suit  the
varying thickness of the seams and partings which must be mined.

(m) The Owner may instruct the Mine Operator to maintain  an  overburden  or
inter burden cover over in-pit coal inventory prior to mining.

(n) If, during the excavation or overburden, any coal  is  found,  the  Mine
Operator shall inform the Owner and  seek  instructions  before  proceeding.
Overburden shall be hauled and placed in areas as shown in the Mining Plan.

(o) Reject coal placed in overburden or interburden dumps  shall  be  buried
in 5 meter lifts and compacted to ensure  no  ingress  of  air  which  could
cause spontaneous combustion.  The Mine Operator shall be required,  at  its
own expense, to dig out, compact and replace any smouldering dump area.

(p) Placement of overburden shall be carried out with due  regard  to  water
run off, final topography, and long term ground stabilization.

(q) Any erosion  or  land  slip  in  areas  of  placed  materials  shall  be
rectified by the Mine Operator at its own expense.”

16.   Clause 5.7.2. deals with drilling and blasting. It is as follows:-

“5.7.2. Drilling & Blasting

Crawler-mounted pneumatically operated  down  the  hold  drilling  rigs  are
capable to meet the future requirement of 8 m/hr will be  deployed  for  OB.
R.B.H. drills will be used for drilling about 160 mm dia. holes in coal.

After shot holes are drilled into the horizontal bench cut  by  the  shovel,
the faces  are  blasted  using  explosives  and  detonators.  Coal  is  also
extracted after blasting off the coal faces.

Drilling & Blasting would be required both in OB and Coal,  benches,  before
excavation by shovel. Except for coal benched which will be  mined  by  CSMs
Heavy ANFO type/Slurry Emulsion is proposed to be used based  on  the  daily
requirement. However, flexibility may have  to  be  provided  for  usage  of
suitable alternative/available explosives as per the requirement.”



17.   We have referred to these clauses which are  technical  but  they  are
fundamental to understand the QR.  They clearly  demonstrate  that  drilling
is imperative. Mr. Chidambram, learned  senior  counsel  for  the  appellant
would argue with all the conviction at his command  that  the  appellant  is
engaged in drilling in Lignite and the tender requirement was  coal/lignite.
 According to the learned senior counsel, drilling  in  lignite  would  meet
the requirement but the owner has travelled beyond the postulates of the  QR
to insist on  drilling  for  the  purpose  of  blasting.   We  have  already
referred to the certificate issued by GMDC in favour of  the  appellant  and
the documents filed by the appellant.  The High  Court  has  considered  the
documents and opined that the documents filed  in  support  of  the  QR  are
substantially inadequate. Adverting to  the  facet  of  drilling,  the  writ
court has opined that there is specific use of the words “drilling  for  the
purposes of blasting”. It is urged by Mr. Chidambram and Mr. Raval,  learned
senior counsel that in the absence of a definitive prescription,  the  court
cannot add an attribute or quality component to the  qualifying  clause.  In
this regard, we may usefully  refer  to  certain  authorities.  In  Sterling
Computers Limited v. M/s M & N Publications Limited & Ors[3], the Court  has
held that under some special circumstances a discretion has to  be  conceded
to the authorities who have to enter into contract giving  them  liberty  to
assess the overall situation for purpose of taking a  decision  as  to  whom
the contract be awarded and at what terms. It has also  been  observed  that
by way of judicial review the court cannot examine the details of the  terms
of the contract which have been entered into by the  public  bodies  or  the
State. Courts have inherent limitations on the scope of any such enquiry.

18.   In Tata Cellular  (supra)  a  three-Judge  Bench  after  referring  to
earlier decisions culled out certain  principles,  namely,  (a)  the  modern
trend points to judicial restraint in administrative action, (b)  the  court
does not sit as a court of appeal but merely reviews  the  manner  in  which
the decision was made, (c) the court does not have the expertise to  correct
the administrative decision. If a review of the administrative  decision  is
permitted it will be substituting its own decision,  without  the  necessary
expertise which itself may be fallible, and (d)  the  Government  must  have
freedom of contract and that  permits  a  fair  play  in  the  joints  as  a
necessary  concomitant  for  an  administrative  body  functioning   in   an
administrative sphere or quasi-administrative sphere. Hence, the  Court  has
laid down that the decision must not only be tested by  the  application  of
Wednesbury principle of reasonableness (including its  other  facts  pointed
out above) but must be free from  arbitrariness  not  affected  by  bias  or
actuated by mala fides.
 19.  In Jagdish Mandal v. State of Orissa and Ors[4]  the  Court  has  held
that  a  contract  is  a  commercial  transaction.  Evaluating  tenders  and
awarding contracts  are  essentially  commercial  functions.  Principles  of
equity and natural justice stay at a distance. If the decision  relating  to
award of contract is bona fide and is in public interest, courts  will  not,
in exercise of power of judicial review,  interfere  even  if  a  procedural
aberration or error in assessment or prejudice to a tenderer, is made out.
20.   In Master Marine Services (P) Ltd. v. Metcalfe &  Hodgkinson  (P)  Ltd
and Anr[5], it has been ruled that the State can choose its  own  method  to
arrive at a decision and it is free to grant any relaxation  for  bona  fide
reasons, if the tender conditions permit such  a  relaxation.  It  has  been
further  held  that  the  State,  its  corporations,  instrumentalities  and
agencies have the public duty to be fair to all concerned.  Even  when  some
defect is found in the decision-making process, the court must exercise  its
discretionary powers  under  Article  226  with  great  caution  and  should
exercise it only in furtherance of public interest and  not  merely  on  the
making out of a legal point.

21.   In  B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd. and Ors.[6]  a
two-Judge Bench, after referring to  series  of  judgments  has  culled  out
certain principles which include the one that  where  a  decision  has  been
taken purely on public interest, the court ordinarily should apply  judicial
restraint.
22.   In Michigan Rubber (India) Ltd. (supra)  the  Court  referred  to  the
earlier judgments and opined that before a court  interferes  in  tender  or
contractual matters, in exercise of power of judicial review should pose  to
itself the question whether the process adopted  or  decision  made  by  the
authority is mala fide or intended to favour someone or whether the  process
adopted or decision made is so arbitrary and irrational  that  the  judicial
conscience cannot countenance.  Emphasis was laid  on  the  test,  that  is,
whether award of contract is against public interest.
23.    Recently  in  Afcons  Infrastructure  Ltd.  v.  Nagpur   Metro   Rail
Corporation Ltd.[7] a two-Judge Bench eloquently exposited  the  test  which
is to the following effect:-
“We may add that the owner or the employer of  a  project,  having  authored
the tender documents, is the best person to understand  and  appreciate  its
requirements and interpret its documents.  The  constitutional  Courts  must
defer to this  understanding  and  appreciation  of  the  tender  documents,
unless  there  is  mala  fide  or  perversity  in   the   understanding   or
appreciation or in the application of the terms of  the  tender  conditions.
It is possible that  the  owner  or  employer  of  a  project  may  give  an
interpretation to the  tender  documents  that  is  not  acceptable  to  the
constitutional Courts but that by itself is not  a  reason  for  interfering
with the interpretation given.”

24.   We respectfully concur with the aforesaid statement of law.   We  have
reasons to do so. In the present scenario, tenders are  floated  and  offers
are  invited  for   highly   complex   technical   subjects.   It   requires
understanding and appreciation of the nature of work and the purpose  it  is
going to serve. It is common knowledge in the competitive  commercial  field
that technical bids pursuant to the notice inviting tenders are  scrutinized
by the technical experts and sometimes third  party  assistance  from  those
unconnected  with  the  owner’s  organization   is   taken.   This   ensures
objectivity. Bidder’s expertise and technical capability and  capacity  must
be assessed  by  the  experts.  In  the  matters  of  financial  assessment,
consultants are appointed.  It  is  because  to  check  and  ascertain  that
technical ability and the financial  feasibility  have  sanguinity  and  are
workable and realistic. There is  a  multi-prong  complex  approach;  highly
technical in nature. The tenders where public largesse  is  put  to  auction
stand on a different compartment.  Tender with which we  are  concerned,  is
not comparable to any scheme  for  allotment.   This  arena  which  we  have
referred requires technical expertise.  Parameters  applied  are  different.
Its aim is to achieve high degree of perfection in execution  and  adherence
to the time schedule. But, that does not mean,  these  tenders  will  escape
scrutiny of judicial review.  Exercise of power of judicial review would  be
called for if the approach is arbitrary or malafide or procedure adopted  is
meant to favour one. The decision making process should  clearly  show  that
the said maladies are kept at bay. But where a decision  is  taken  that  is
manifestly in consonance  with  the  language  of  the  tender  document  or
subserves the purpose for which the tender  is  floated,  the  court  should
follow the principle of restraint.  Technical evaluation  or  comparison  by
the court would be impermissible.  The principle that  is  applied  to  scan
and understand  an  ordinary  instrument  relatable  to  contract  in  other
spheres has to be treated differently  than  interpreting  and  appreciating
tender documents relating to technical works and projects requiring  special
skills. The owner should be allowed to carry out the purpose and  there  has
to be allowance of free play in the joints.
25.   In view of the aforesaid analysis, we do not  perceive  any  infirmity
in the judgment and order passed by the High  Court  and,  accordingly,  the
appeal stands dismissed.  In the facts and circumstances of the case,  there
shall be no order as to costs.

                                            ..............................J.
                                                               (Dipak Misra)



                                            ..............................J.
                                                          (Uday Umesh Lalit)
New Delhi;
October 18, 2016.
-----------------------
[1]

      [2] (1994) 6 SCC 651
[3]
      [4] (2012) 8 SCC 216
[5]
      [6] (1993) 1 SCC 445
[7]
      [8] (2007) 14 SCC 517
[9]
      [10] (2005) 6 SCC 138
[11]
      [12] (2006) 11 SCC 548
[13]
      [14] 2016 (8) SCALE 765

whether Rent Act would apply even to the pending suits or it will be enforced only from the date when notification covering the area in- question is issued and, therefore, will have no effect on the suits which are already pending before the civil courts?= In case definition of 'tenant' and provisions pertaining to eviction of tenants contained in Rent Acts cover even those cases where the tenancy has been terminated (or depending upon the provisions of the Rent Act, even when Civil Court has passed the decree) the protection provided under such provision would come to the rescue of the tenant even in respect of pending cases. It is because of the reason that such a Rent Act specifically provides for protection of this nature and bars the jurisdiction of civil court even in respect of pending cases. On the other hand, where there is no such specific protection given under the provisions of the said Rent Act, the principle as laid down in Mansoor Khan2 will be applicable.- this case would fall in the category of Atma Ram Mittal and Mansoor Khan etc. as under the scheme of the Rent Act, no protection to the ex- tenants is provided and no provision is made excluding the jurisdiction of civil courts in respect of pending cases, expressly or impliedly. On the other hand, in the facts of the present case, it needs to be highlighted again that the respondents had not only sublet the premises but had not paid rent for a period of 14 years. His defence was struck off by the civil court and ultimately suit was even decreed. It is only during the pendency of the appeal that the notification was issued covering the area where suit premises are situate under the Rent Act. It will be travesty of justice if the appellants/landlords are deprived of the fruits of the said decree.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 8194 OF 2016



|RAJENDER BANSAL & ORS.                     |.....APPELLANT(S)            |
|                                           |                             |
|VERSUS                                     |                             |
|                                           |.....RESPONDENT(S)           |
|BHURU (D) THR. LRS. & ORS.                 |                             |



                               J U D G M E N T



A.K. SIKRI, J.

                 The appellants in this appeal are  the  landlords  who  had
filed suit for eviction of the respondents herein, their tenants.  Suit  was
filed in the Civil Court.  The premises in-question were outside  the  ambit
of rent legislation.  It is because of  this  reason  that  civil  suit  for
possession/ejectment was filed.  However, during the pendency  of  the  suit
and before it could be finally decided, the area  in  question  was  brought
within the sweep of  rent  legislations  by  requisite  notifications.   The
effect of such coverage was to give protective umbrella to the tenants.   As
a fortiorari,  the  landlord  can  now  evict  the  tenant  only  by  taking
recourse to the rent legislation, that  too,  by  filing  the  petition  for
eviction under the Rent Act before the Rent Controller/Tribunal  constituted
under the said Acts.  Civil Court  ceases  to  have  jurisdiction  over  the
matter insofar as eviction/ejectment of tenant is concerned.

                  In  this  backdrop,  the  question  that  has  arisen  for
consideration is  as  to  whether  the  Civil  Court  would  cease  to  have
jurisdiction to try the suit of eviction if the  suit  property  came  under
notified area during pendency of the  suit?   To  put  it  differently,  the
question is : whether Rent Act would apply even to the pending suits  or  it
will be enforced only from the date when notification covering the area  in-
question is issued and, therefore, will have no effect on  the  suits  which
are already pending before the civil courts?
In the instant case, the premises in-question were in rural area in  respect
of which suit was filed by  the  appellants  on  February  11,  2002.  These
premises consist of a shop (suit  property)  which  is  situate  at  Barkali
Hodal Road, Punhana, Tehsil Punhana,  District  Gurgaon,  Haryana.   In  the
State of Haryana, Rent Act, known as Haryana Rent  Urban  (Control  of  Rent
and Eviction) Act, 1973 (for short, 'Rent Act, 1973') is  promulgated.   Its
sweep, however, is over the urban areas of Haryana, as defined in  the  Act.
As pointed out above, at the relevant time suit property was in  rural  area
and, therefore, not covered by the said  Rent  Act,  1973.   This  suit  was
filed, after terminating the tenancy, by the  landlord,  namely,  father  of
the appellants (predecessor of the appellants)  under  Section  106  of  the
Transfer of Property Act, 1882.  The ground taken was that shop was let  out
to one Rehmat who inducted his son (respondent/defendant herein) as  a  sub-
tenant without the consent of the landlords.   Rehmat  passed  away  in  the
year 1997 and had not even paid rent for 10  years.   Therefore,  possession
of the respondent as sub-tenant was unauthorised  and  illegal.   Notice  of
vacating the premises and handing over the possession was given  on  October
22, 2001 and as the respondent failed  to  vacate  the  premises,  suit  was
filed on February 11, 2002.  In the suit, brother of the respondent,  Yasin,
was also impleaded as a defendant, who did not appear and was proceeded  ex-
parte.  Insofar as, Respondent No. 1 is concerned, though  he  had  appeared
but did not pay any rent for more than 14 years and, therefore, his  defence
was struck off by the civil court vide order dated May 26, 2008.
Five months thereafter, i.e., on October 29, 2008, notification  was  issued
whereby the area where the suit premises situate was declared  as  urbanised
area and, thus, was brought within the fold of Rent Act,  1973.   The  Trial
Court, however, after striking off defence of  Respondent  No.  1  continued
with the suit,  recorded  the  evidence  of  the  plaintiff  and  ultimately
decreed the suit vide judgment and decree dated December 12, 2008.   Against
this decree, respondent no. 1 filed Civil Appeal No. 11/9 in  the  Court  of
Additional District Judge, Nuh taking the plea that the Civil  Judge  ceases
to have jurisdiction over the matter from October 29,  2008  when  Municipal
Committee, Punhana came into existence vide notification dated  October  29,
2008 and the area in-question was included in municipal  limits  because  of
which  Rent  Act,  1973  became  applicable  to  the  suit  premises.   This
contention found favour with  the  learned  Additional  District  Judge  who
allowed the appeal vide judgment dated March 16, 2009.   Aggrieved  by  that
judgment, the appellants herein preferred second appeal  under  Section  100
CPC, being RSA No. 3963 of 2009 in the High Court  of  Punjab  and  Haryana,
but unsuccessfully inasmuch as the High Court has dismissed the appeal  vide
judgment dated February 10, 2014.  It is this judgment which is impugned  in
the present proceedings giving rise to the question of  law  that  has  been
noticed in the earlier portion of this judgment.
Learned counsel for the appellants has argued that  law  applicable  on  the
date of institution of the suit would govern the suit.  On  that  basis,  it
is submitted that since on the  date  when  the  suits  were  filed  by  the
appellants in these appeals, the suit properties were  not  covered  by  the
Rent Act which legislation came into effect on a subsequent date,  when  the
law applicable on the date of institution is  to  be  applied,  Civil  Court
would have the jurisdiction in the matter in the vein and taking  this  line
of argument further, it was submitted that the Notification which is  issued
in respect of an area in-question, notifying the same  to  be  municipality,
is to take effect only from the date of such  a  Notification  and  such  an
Order/Notification cannot be given retrospective operation.  In  support  of
the aforesaid  submission,  counsel  for  the  appellants  relied  upon  the
following judgments:
(i)   Ramesh Chandra Vs. III Addl. Distt. Judge & Ors.[1]
(ii)  Mansoor Khan Vs. Moti Ram & Anr.[2]
(iii) Nand Kishore Marwah & Ors. Vs. Samundri Devi[3]; AND
(iv)  Harijeet Kaur Vs. Sarabjit Kaur[4] [P&H High Court]
The argument canvassed by the learned counsel for the  respondents,  on  the
other hand, was that having regard to the  nature  and  scheme  of  the  two
legislations in-question, viz., Rent  Act,  1973  and  Haryana  Municipality
Act, one has to keep in mind that  the  scheme  contemplates  two  types  of
cases: (i)  where the premises  are  covered  by  the  Rent  Act,  1973  but
exemption in terms of Section 1(3) of the Rent Act is provided for a  period
of 10 years to certain kinds of premises.  It was argued that in respect  of
such premises which are enjoying protection and during that period  suit  is
filed in the Civil Court, the rights of the parties to  the  suit  would  be
seen on the date on which the suit was filed  and  even  if  the  period  of
exemption expires during  the  pendency  of  the  suit,  Civil  Court  would
continue to have the jurisdiction to try  the  said  suit,  and  (ii)  Other
cases were those where  the  particular  premises  are  notified  as  coming
within the municipal area under the provisions  of  Haryana  Municipal  Act,
which had the effect of covering these premises under the Rent Act as  well.
 It was argued that in such cases the moment such an  Order/Notification  is
passed and the premises get covered by the Rent Act, from the date  of  such
a Notification, Civil Court will cease to  have  jurisdiction  and  it  will
apply even to the pending suits by relegating the parties to  the  Court  of
Rent Controller/Tribunal created under the Rent Act.
      The learned counsel further argued that the aforesaid distinction  was
discerned by the learned High Court in the impugned judgment after  scanning
through the various judgments of the High Court as well as this  Court.   It
was argued that  such  a  distinction  can  be  found  after  reading  those
judgments and the attention  of  this  Court  was  drawn  to  the  following
judgments, in particular:
(i)   Mani Subrat Jain Vs. Raja Ram Vohra[5]
(ii)  Lakshmi Narayan Guin and Others Vs. Niranjan Modak[6]
In order to find out the veracity of the aforesaid  arguments  and  position
taken by the learned counsel on either  side  and  to  give  answer  to  the
question  that  has  arisen  for  determination,  it  becomes  necessary  to
traverse through the judgments cited inasmuch as reading thereof would  help
in deciding as to on which side the scales are tilted.  We  would  be  going
through these judgments in chronological order.  In that order,  first  case
that needs our attention is Mani Subrat Jain5.  In this case,  the  landlord
had filed a suit for ejectment in Civil Court in the  absence  of  any  rent
legislation at the relevant time when the suit  was  filed.  The  compromise
decree was passed against the tenant.  After the  said  decree  was  passed,
East Punjab Rent Restriction Act,  1949  was  extended  to  Chandigarh  vide
Notification issued on November 04, 1972.  House in dispute was  situate  in
Chandigarh.  By that time, the Act was extended to  Chandigarh,  the  tenant
had already suffered a  decree  but  he  was  still  in  possession  of  the
tenanted premises when the execution petition  was  filed  by  the  landlord
seeking execution  of  the  said  decree.   The  tenant  resisted  the  same
claiming the protection of Section 13(1) of  East  Punjab  Rent  Restriction
Act, 1949 which provided that a tenant could not be evicted in execution  of
a decree passed before  or  after  the  commencement  of  the  said  Act  or
otherwise and whether before  or  after  the  termination  of  the  tenancy,
except in accordance with the  said  or  in  pursuance  of  an  Order  under
Section 13 of the Rent Restriction Act.  This Court held that  even  an  ex-
tenant will continue to be a tenant.  A reading of  the  judgment,  however,
would show that the Court went by the definition of  “tenant”  contained  in
Section 2(i) of the Rent Restriction Act which included  an  ex-tenant  also
and more importantly the provisions of Section 13 of  the  Rent  Restriction
Act which specifically provided that a tenant will not be  evicted  even  in
execution of a decree passed either before or after the commencement of  the
Rent Restriction Act, except in accordance with the  provisions  of  Section
13 or in pursuance of  the  order  passed  under  Section  13  of  the  Rent
Restriction Act.
In Lakshmi Narayan Guin6, ejectment decree  was passed by  the  Civil  Court
against which appeal was pending.  During the pendency of the  appeal,  Rent
Act was made applicable to the area where the premises in-question  situate.
 This Court took the view that since appeal was in continuation of the  suit
having regard to the fact that premises were now covered by the West  Bengal
Premises Tenancy Act, protection of the said Act would become  available  to
the tenant having regard to the provisions of  Section  13(1)  of  that  Act
which was of the same nature, as noticed in  Mani Subrat Jain5 case.
Judgment in Atma Ram Mittal  Vs.  Ishwar  Singh  Punia[7],  related  to  the
situation where the premises in-question though covered by the Rent  Control
Act, were exempted from the provisions of the  said  Act  for  a  particular
period.  That case arose under the same Haryana Act of  1973  which  we  are
dealing with.  It may be pointed out, at this stage, that  Section  1(3)  of
the Act, 1973 provides the exemption in the following manner:   “Nothing  in
this Act shall apply to any building the construction of which is  completed
on or after the commencement of this Act, for a period  of  ten  years  from
the date of its completion”.
Though, the area where the building is situate  comes  under  the  protected
umbrella of the Act,  1973,  still  for  a  period  of  10  years  the  said
protection is not available to the tenant in respect of a newly  constructed
building, which is completed on or after the commencement of  the  Act.   In
such a case the tenancy in respect of  that  particular  building  shall  be
governed by contractual terms and under the provisions of  the  Transfer  of
Property Act.   On  the  termination  of  tenancy  in  any  of  the  manners
stipulated in the Transfer of Property Act,  the  landlord  is  entitled  to
file suit for possession in the Civil Court.  In this backdrop, in Atma  Ram
Mittal8, this Court was concerned with a situation where  such  a  suit  was
filed by the landlord in respect of newly constructed  premises  during  the
period of exemption by virtue of Section 1(3)  of  the  Rent  Act  of  1973.
However, when the suit was still pending period of 10  years  expired.   The
Court held that on this basis, the tenant argued that  since  the  exemption
period had expired, the effect thereof  was  that  the  Rent  Act  had  also
become applicable to the building in-question and,  therefore,  Civil  Court
ceased to have jurisdiction to try even the pending suit.   This  contention
was repelled by the Court holding that the  Civil  Court  will  continue  to
have the jurisdiction.  For coming to  this  conclusion,  the  Court  relied
upon its earlier judgments in Vineet Kumar Vs. Mangal  Sain  Wadhera[8]  and
Ram Saroop Rai Vs. Smt. Lilawati[9].
After  referring  to  the  aforesaid  two  judgments,  the  Court  gave  the
following reasons in support of its conclusion:

“It is well-settled that no man should suffer because of the  fault  of  the
court or delay in the procedure. Broom has stated the  maxim  “actus  curiae
neminem gravabit”—an act of court shallprejudice no man.  Therefore,  having
regard to the time  normally  consumed  for  adjudication,  the  ten  years’
exemption or holiday from the application  of  the  Rent  Act  would  become
illusory, if the suit has to be filed within that time and  be  disposed  of
finally. It is common knowledge that unless a suit is instituted soon  after
the date of letting it would never be disposed of within ten years and  even
then within that time it may not be disposed of.  That  will  make  the  ten
years holiday from the Rent Act illusory and provide  no  incentive  to  the
landlords to build new houses to solve problem of shortages of  houses.  The
purpose of legislation would thus be defeated. Purposive  interpretation  in
a social amelioration legislation is an imperative irrespective of  anything
else.

9. Judicial time and energy is more often than not consumed in finding  what
is the intention of Parliament or in other words, the will  of  the  people.
Blackstone tells us that the fairest and most rational method  to  interpret
the will of the legislator is by exploring his intentions at the  time  when
the law was made, by signs most natural and probable. And  these  signs  are
either  the  words,  the  context,  the  subject-matter,  the  effects   and
consequence, or the spirit and reason of the law  (emphasis  by  the  court)
See Commentaries on the Laws of England (facsimile  of  1st  Edn.  of  1765,
University of Chicago Press, 1979, Vol. 1, p.  59).  Mukherjea,  J.  as  the
learned Chief Justice then was, in Poppatlal Shah v. State of  Madras  (1953
SCR 677) said that each word, phrase or sentence was to be construed in  the
light of purpose of the  Act  itself.  But  words  must  be  construed  with
imagination of purpose behind them said Judge  Learned  Hand,  a  long  time
ago. It appears, therefore, that though we are  concerned  with  seeking  of
intention, we are rather looking to  the  meaning  of  the  words  that  the
legislature has used and the true meaning of what  words   as  was  said  by
Lord Reid in Black-   Clawson  International  Ltd.  v.  Papierwerke  Waldhof
-Aschaffenburg A.G. We are clearly of the opinion that having regard to  the
language we must find the reason and the spirit of the law. If the  immunity
from the operation of the Rent Act is made and depended upon  that  ultimate
disposal of the case within the period of exemption of ten  years  which  is
in reality an impossibility, then there  would  be  empty  reasons.  In  our
opinion, bearing in mind the well-settled principle that the rights  of  the
parties crystallise to (sic) on the date of the institution of the  suit  as
enunciated by this Court in Om Prakash Gupta v.  Digvijendrapal  Gupta,  the
meaningful construction must be that the exemption would apply for a  period
of ten years and will continue to be available until suit is disposed of  or
adjudicated.  Such  suit  or  proceeding  must  be  instituted  within   the
stipulated period of ten years. Once  rights  crystallise  the  adjudication
must be in accordance with law.”
                                                            (Emphasis added)

Judgment in Ramesh Chandra1,  falls in the  category  of  Atma  Ram  Mittal8
case.  In  that  case  also  Court  was  dealing  with  the  case  of  newly
constructed property exempted from  operation  of  U.P.  Rent  Act  and  the
decision was on the same lines as noted in Atma Ram Mittal8.
At this juncture, we would like to discuss another judgment  of  this  Court
rendered by a three Judge Bench in the case of  Shri  Kishan  alias  Krishna
Kumar & Ors. v. Manoj Kumar &  Ors.[10]  At  the  outset,  it  needs  to  be
emphasised that it was  also  a  case  under  the  same  very  enactment  of
Haryana, i.e. Rent Act,  1973,  and  this  case  also  dealt  with  a  newly
constructed property which was exempted from operation of the said  Act  for
a period of 10 years and the suit was  filed  by  the  landlord  during  the
exempted period. In this case also, the Court held that the  law  applicable
on the date of the institution of the suit would govern and as at that  time
the protection of the Rent Control Act was  not  available  and  thus  Civil
Court had the jurisdiction, the  Civil  Court  will  continue  to  have  the
jurisdiction even after the expiry of the said period of  10  years.   While
coming to this conclusion, the Court had relied upon Ramesh  Chandra1,  Atma
Ram Mittal8  and  other  such  cases.                  The  learned  counsel
appearing for the appellants heavily relied upon the reasons  given  by  the
Court in taking the aforesaid view and on that basis it was argued that  the
principle laid down should be made applicable even in those cases where  the
protection of the Rent Control Act is extended in respect  of  the  area  in
question after the filing of the suit, in an attempt to  impress  upon  this
Court to take the view that even in such cases the Civil  Court  should  not
be deprived of its jurisdiction in respect of pending  cases,  when  on  the
date  of  institution  of  the  suit  the  Civil  Court  had  the  requisite
jurisdiction to entertain the same.  For this purpose, the  learned  counsel
referred to the arguments of the tenant in that case recorded  in  paragraph
5 thereof  with the submission that  this  very  argument  was  specifically
rejected.  Paragraph 5 thereof reads as under:
“5.  It is argued that the Act is intended to be beneficial to  the  tenants
and special protection is  afforded  to  them.   According  to  the  learned
counsel for the purpose of  the  Act  the  expression  “tenant”  includes  a
tenant continuing in possession after the termination of his tenancy and  at
the expiry of period of ten years as set out in Section  1(3)  of  the  Act,
the “building”  comes  within  the  fold  of  the  Act  and  the  tenant  in
occupation will automatically have  the  protection  afforded  by  the  Act.
Emphasis is laid on the wordings of Section 13(1)  which  prevents  eviction
of a tenant in possession except in accordance with the  provisions  of  the
section.  According to the  learned  counsel  the  moment  the  Act  becomes
applicable to the building in question, the suit in relation thereto has  to
abate and the remedy of the landlord is to approach the Controller  with  an
application for eviction on any of the  grounds  set  out  in  the  section.
According to him even if a decree is passed by the civil court it  will  not
be enforceable and the tenant cannot be evicted from the  building  pursuant
to the decree as the bar in Section 13(1) is absolute.  In support  of  this
contention, learned counsel has placed reliance on some of  the  rulings  of
this Court which will be adverted to a little later.”

In order to appreciate this argument, we will have to notice the  contention
which was advanced by the counsel for the landlord in the said case  as  the
judgment is ultimately  passed  on  the  acceptance  of  those  submissions.
These are contained in paragraph 6 and we reproduce below that paragraph  as
well:
“6.  On the other hand, learned  counsel  for  the  respondents  has  placed
before us the following proposition:

(a) On the date when the suit was instituted  it  was  to  enforce  a  legal
right which had already accrued to  the  plaintiff  and  stood  crystallized
under the law applicable to the building at that time.  In  the  absence  of
any specific provision in the Act to deprive the Court of  its  jurisdiction
to determine the issue pertaining to that  right,  it  cannot  be  contended
that by efflux of ten-year period mentioned in Section 1(3) the Court  would
lose its jurisdiction.

(b) The maxim ubi jus, ibi remedium can be excluded only  by  a  substantive
legislation expressly extinguishing  the  said  right.   The  Act  does  not
contain any such provision to bring to an end the  right  of  the  plaintiff
which had already accrued and put in issue in the suit.  A  judicial  vacuum
cannot be created by preventing the Court from deciding an issue  which  has
arisen before it unless the right which had accrued in favour of  one  party
is taken away by the legislation.

(c)  The principle of the maxim actus curiae neminem  gravabit  would  apply
and because the Court had taken a long time to dispose of the matter  before
it, the party which had approached it cannot be made to suffer.

(d)  The  provisions  of  Section  1(3)  and  Section  13(1)  should  be  so
construed as to advance the legislative intention and if the  contention  of
the appellants is accepted it would defeat the  purpose  of  the  moratorium
and make it futile.

In support of the above contentions learned counsel has referred to  several
rulings of this Court and submitted that the consistent view taken  by  this
Court is in his favour.”

Arguments of both sides have been dealt with by the  Court,  thereafter,  in
the following manner:
“7.  Before referring to the decisions cited before us it  is  necessary  to
advert to the provisions of the Act.  We have already quoted  Sections  1(3)
and 13(1).  Apart from the legislative exemption contained in  Section  1(3)
there is a provision in Section 3 of the Act enabling the  State  Government
to exclude any building or any class of buildings from the  purview  of  the
Act.  Sections 4 to 8 deal with fair rent, deposit of rent etc.  Sections  9
and 10 refer to the amenities to be provided  to  the  tenant.   Section  11
prevents  conversion  of  a  residential  building  into  a  non-residential
building except with the permission in writing of the  Controller.   Section
12 deals with the situation where a landlord fails  to  make  the  necessary
repairs.  Section 13 sets out the grounds on which eviction  can  be  sought
by a landlord.  Section 13-A prescribes special procedure  for  disposal  of
the application by a landlord in certain cases such as members of the  Armed
Forces,  government  employees  etc.   Section  14  prevents  reopening   of
decisions which have become final.   Section  15  prescribes  appellate  and
revisional authorities.  Section 16 provides that  an  authority  exercising
powers under the Act shall have the same powers of summoning  and  enforcing
the attendance of witnesses and compelling the  production  of  evidence  as
are vested in a court under the Civil Procedure Code.   Sections  17  to  23
deal with order as to  costs,  execution,  power  to  transfer  proceedings,
penalties etc.  Section 24 repeals the East Punjab  Urban  Rent  Restriction
Act, 1949 (East Punjab Act 3 of 1949).

8.  There is no provision in the Act  taking  away  the  jurisdiction  of  a
civil court to dispose of a  suit  validly  instituted.  There  is  also  no
provision preventing the execution of  a  decree  passed  in  such  a  suit.
Section 13(1) does  not  expressly  refer  to  execution  of  a  decree  for
possession. On a reading of all the provisions of the  Act,  it  is  evident
that it has not  prevented  a  civil  court  from  adjudicating  the  rights
accrued and the liabilities incurred prior to the  date  on  which  the  Act
became applicable to the  building  in  question.  If  the  legislature  had
intended to take away the jurisdiction of the civil court to decide  a  suit
which had been validly instituted, it would have  been  worded  differently.
The purpose for which the exemption is  granted  statutorily  under  Section
1(3) is to encourage construction of new buildings. That  purpose  would  be
defeated if the owner of the building  is  deprived  of  his  right  to  get
possession of the building unless he gets a decree within a  period  of  ten
years from the date of its completion. In fact the  logical  consequence  of
the argument of the appellants if accepted would be that even  if  a  decree
is obtained by the landlord within ten years from its completion  it  cannot
be executed after the expiry of  the  said  period  of  ten  years  as  such
execution would not be in accordance with the provisions of the Act.  It  is
common knowledge that  a  proceeding  in  a  civil  court  for  recovery  of
immovable property could be dragged on by the defendant easily for a  period
of ten years  or  more  and  thereby  any  tenant  whose  tenancy  had  been
terminated validly before the suit would successfully  make  the  proceeding
infructuous by prolonging the litigation. The  argument  of  the  appellants
cannot  be  accepted  as  otherwise  the  purpose  of  exemption  would  get
defeated.”
                                                         (emphasis supplied)

Thereafter, the Court has referred to  various  earlier  judgments  and  all
these judgments are concerned with the provision of exemption  contained  in
such Rent Acts.  Therefore, all these judgments are authority on  the  issue
that in those cases where exemption from operation of Rent Control  Acts  is
provided for a particular period and suit for eviction is filed  during  the
said period of exemption,  the  Civil  Court  shall  continue  to  have  the
jurisdiction to adjudicate the rights of the parties  under  the  said  suit
even where the period of exemption has expired during the  pendency  of  the
suit.  The reason was that as on the date of the  institution  of  the  suit
legal right in favour of the landlord  had  already  accrued  and  it  stood
crystallised under the law applicable to the building  at  that  time.   The
Court was also influenced by the consideration that the maxim ubi  jus,  ibi
remedium  can  be  excluded  only  by  substantial  legislation   expressing
extinguishing the said right.  If the delay in disposal  of  the  said  suit
had occurred, that was because of the Court where the suit kept pending  and
the principle of the maxim actus curiae neminem gravabit  shall  apply.   In
this context, the Court interpreted  the  provisions  of  Section  1(3)  and
Section 13(1) of the Act pointing out the purpose for which the  Legislature
had exempted the newly constructed buildings from the operation of the  Rent
Act.  For this, the object of such an exemption from  the  applicability  of
the Act was specifically taken note of by  extracting  a  passage  from  Ram
Saroop Rai v. Lilavati[11],  as  can  be  seen  from  paragraph  10  of  the
judgment:
“10.  In Ram Saroop Rai v. Lilavati while dealing  with  a  case  under  the
U.P. Urban Buildings (Regulation of Letting, Rent and Eviction)  Act,  1972,
Justice  Krishna  Iyer  referred  to  the  object  of  exemption  from   the
applicability of the Act in the following words: (SCC p. 453, para 1)

“… Chronic scarcity of accommodation in almost every  part  of  the  country
has made ‘eviction’ litigation  explosively  considerable,  and  the  strict
protection against ejectment, save upon restricted grounds, has  become  the
policy of the State. Rent control legislation to give effect to this  policy
exists everywhere, and we are concerned with one such in the State  of  U.P.
(U.P. Act 13 of 1972). The legislature found that rent  control  law  has  a
chilling effect on new building construction,  and  so,  to  encourage  more
building operations, amended the statute to release, from  the  shackles  of
legislative restriction, ‘new constructions’ for a period of ten  years.  So
much so, a  landlord  who  has  let  out  his  new  building  could  recover
possession without impediment if he instituted such  proceeding  within  ten
years of completion.”

The aforesaid observations would apply in the present case too.”

From the aforesaid discussion in Atma Ram Mittal, Vineet Kumar,  Ram  Saroop
Rai, Ramesh Chandra and Shri Kishan alias Krishna Kumar cases, the  apparent
principles which can be culled out, forming the  ratio  decidendi  of  those
cases, are as under:
i)     Rights  of  the  parties  stand  crystallised  on  the  date  of  the
institution of the suit and, therefore, the law applicable on  the  date  of
filing of the suit will continue to apply  until  suit  is  disposed  of  or
adjudicated.
ii)   If during the pendency of the suit, Rent  Act  becomes  applicable  to
the premises in question, that would be of no consequence and it  would  not
take away the jurisdiction of civil court  to  dispose  of  a  suit  validly
instituted.
iii)  In order to oust the jurisdiction of civil  court,  there  must  be  a
specific provision in the Act taking away  the  jurisdiction  of  the  civil
court in respect of those cases also which were  validly  instituted  before
the date when protection of Rent Act became  available  in  respect  of  the
said area/premises/tenancy.
iv)   In case aforesaid position is not accepted and the protection  of  the
Rent Act is extended even in respect of suit  validly  instituted  prior  in
point of time when there was no such protection under the Act, it will  have
the consequence of making the decree, that is obtained  prior  to  the  Rent
Act becoming applicable to the said area/premises,  inexecutable  after  the
application of these Rent Act in respect of such premises.  This  would  not
be in consonance with the legislative intent.
In laying down the aforesaid dicta, the Court also took support of two  well
known maxims viz. (i) ubi jus ibi remedium which  lays  down  the  principle
that where there is a right there is a remedy and it can  be  excluded  only
by substantial legislation expressly extinguishing the said right  AND  (ii)
actus curiae neminem gravabit, which means that nobody should be allowed  to
suffer because of the act of the Court.  Here the act  attributed  is  delay
in disposal of the case. Additionally,  the  Court  took  aid  of  purposive
interpretation i.e. legislative intent in not making Rent Act applicable  to
new constructions for a period of ten years.
What we notice is that in the impugned judgment, the High Court has  divided
the cases into two categories and  restricted  the  law  laid  down  in  the
aforesaid judgments only in respect of those category of  cases  where  Rent
Act exempts from  its  applicability  newly  constructed  properties  for  a
period of ten years.  Second category  of  cases  carved  out  covers  those
cases where the Rent Act was not applicable when  the  suit  was  filed  but
extended to the area/premises in question during the pendency of  the  suit.
In respect of later category the High Court  held  that  the  dicta  in  the
aforesaid judgments would not be applicable  and  the  moment  Rent  Act  is
extended to such areas where the premises are  situate,  civil  court  shall
cease to have jurisdiction to continue  with  the  suits  though  instituted
even  at  a  point  of  time  when  Rent  Act  was  not  applicable.    This
distinction, according to us, is illusory.  The principles of law laid  down
in the aforesaid judgment as culled out above would apply in equal force  to
second category of cases as well inasmuch as the basic  principle  which  is
laid down in the aforesaid judgments is  that  rights  of  the  parties  get
crystallised on the date  of  the  institution  of  the  suit  and  the  law
applicable on the date of filing the suit  would  continue  to  govern  such
suit.

At the juncture, we take note of the law laid down in  Mansoor  Khan2  which
is in tune with what we have stated above.  That was a case which arose  out
of Central Provinces and Berar Letting of Houses  and  Rent  Control  Order,
1949. Clause 13 thereof provided protection to the tenants against  eviction
and stipulated grounds which would entitle a landlord to  seek  eviction  of
the tenant by filing a petition before the Controller  appointed  under  the
said Act.  This Order was applicable to certain areas but  did  not  include
city of Risod.  The said area of Risod in the  erstwhile  province  of  C.P.
and Berar was covered under the Order, 1949 by  Notification  dated  October
09, 2010.  However, much before this  Notification,  the  landlord  in  that
case had filed the suit for possession in the Civil Court  after  the  lease
had been determined.  This Court held that Civil  Court  shall  continue  to
have jurisdiction as Order, 1949 was  not  retrospective  in  operation  and
where the eviction suit had already been initiated and was  pending  on  the
date when order became applicable to the area in  which  the  suit  premises
was  situate,  provisions  of  the  order  would  not  affect  validity   of
previously instituted proceedings  and  the  Court  was  competent  to  pass
eviction decree under the Transfer of Property Act.

A significant question would be as to how we need to read judgments in  Mani
Subrat Jain and Laxmi Narayan Guin cases, the outcome whereof went in  other
direction.  However, when we understand  the  ratio  of  the  aforesaid  two
cases appropriately, we find no contradiction between these  two  cases  and
other line of cases like Atma Ram Mittal etc. discussed above.   Insofar  as
judgments in Mani Subrat Jain and Laxmi Narayan Guin  are  concerned,  these
were rendered keeping in view the definition of “tenant”  appearing  in  the
rent legislations therein, namely, East  Punjab  Rent  Restriction  Act  and
West Bengal Premises Tenancy Act.  What was found that definition of  tenant
in those enactments included even an ex-tenant.  This coupled with the  fact
that there was specific provision laying down that  a  tenant  will  not  be
evicted even in execution of a decree passed  either  before  or  after  the
commencement of the enactment, except  in  accordance  with  the  provisions
contained in the Rent Act, impelled the Court to  take  the  view  that  the
moment Rent Act became applicable to the area in  question,  the  tenant  or
even ex-tenant stood protected and could be  evicted  only  under  the  said
Rent Acts.  Therefore, the principles which we  have  culled  out  above  in
para 16 would be subject to one exception.  In case definition  of  'tenant'
and provisions pertaining to eviction of  tenants  contained  in  Rent  Acts
cover even those cases where the tenancy has been terminated  (or  depending
upon the provisions of the Rent Act, even when Civil Court  has  passed  the
decree) the protection provided under  such  provision  would  come  to  the
rescue of the tenant even in respect of pending cases.   It  is  because  of
the reason that such a Rent Act  specifically  provides  for  protection  of
this nature and bars the jurisdiction of civil  court  even  in  respect  of
pending cases.   On  the  other  hand,  where  there  is  no  such  specific
protection given under the provisions of the said Rent  Act,  the  principle
as laid down in Mansoor Khan2 will be applicable.

When we apply the principles laid down above to the instant  case,  we  find
that this case would fall in the category of Atma  Ram  Mittal  and  Mansoor
Khan etc. as under the scheme of the Rent Act,  no  protection  to  the  ex-
tenants is provided and no provision is made excluding the  jurisdiction  of
civil courts in respect of pending cases, expressly or  impliedly.   On  the
other hand, in the facts of the present case, it  needs  to  be  highlighted
again that the respondents had not only sublet  the  premises  but  had  not
paid rent for a period of 14 years.  His  defence  was  struck  off  by  the
civil court and ultimately suit was even decreed.  It  is  only  during  the
pendency of the appeal that the notification was issued  covering  the  area
where suit premises are situate under the Rent Act.  It will be travesty  of
justice if the appellants/landlords are deprived of the fruits of  the  said
decree.

We  are,  thus,  unable  to  accept  the  view  taken  by  the  High  Court.
Accordingly, this appeal is allowed and the judgment of the First  Appellate
Court as well as High Court is set aside.  As the only contention which  was
taken by the respondents before the First Appellate Court,  challenging  the
decree  of  the  trial  court,  was  that  civil  court   ceased   to   have
jurisdiction, the said first appeal  preferred  by  the  respondents  stands
dismissed thereby restoring the decree passed by the trial court.
            There shall, however, be no order as to cost.

                             .............................................J.
                                                                (A.K. SIKRI)


                             .............................................J.
                                                               (N.V. RAMANA)

NEW DELHI;
OCTOBER 18, 2016.

-----------------------
[1]
      (1992) 1 SCC 751
[2]   (2002) 5 SCC 462
[3]   (1987) 4 SCC 382
[4]   2013 (1) RCR (Rent) 74
[5]   (1980) 1 SCC 1
[6]   (1985) 1 SCC 270
[7]   (1988) 4 SCC 284
[8]   (1984) 3 SCC 352
[9]   (1980) 3 SCC 452
[10]  (1998) 2 SCC 710
[11]  (1980) 3 SCC 452