Input:
XXXVII of 1950.
Application under article 32 of the Constitution of India for a writ of certiorari and prohibition.
The facts are set out in the judgment.
B. Banerji for the petitioner.
M.C. Setalvad, Attorney General for India (Gyan Chand, with him) for the opposite party.
522 1950.
May 26.
The following judgments were delivered: KANIA C.J. This is an application for a writ of 'certiorari and prohibition under article 32 of the Constitution of India.
The petitioner who is the President of the All India Hindu Mahasabha since December, 1949, was served with an order of externment dated the gist of March, 1950, that night.
By that order he is directed by the District Magis trate, Delhi, not to remain in the Delhi District, and immediately to remove himself from the Delhi District and not to return to the District.
The order was to continue in force for three months.
By another order of the Madhya Bharat Government he was directed to reside in Nagpur.
That order has been recently cancelled.
The petitioner disputes the validity of the first order on the ground that the East Punjab Public Safety Act, 1949, under which the order was made, is an infringement of his fundamental right given under article 19 (1) (d) of the Constitution of India.
He further contends that the grounds of the order served on him are vague, insufficient and incomplete.
According to him the object of the externment order passed by the District Magistrate, Delhi, was to suppress political opposition to the policy of the Government in respect of Pakistan and the Muslim League.
It is alleged that because the petitioner and the Hindu Mahasabha are against the Government policy of appeasement this order is served on him.
It is therefore mala fide and illegal.
In support of his contention about the invalidity of the East Punjab Public Safety Act and its provisions as regards externment, counsel for the petitioner relied on the recent unreported judgments of the Patna High Court in Miscellaneous Judicial Case No. 29 of 1950, Brij nandan vs The State of Bihar, and of the High Court of Bombay in Criminal Application No. 114 of 1950, re Jai singhbhai Ishwarlal Modi.
It is necessary first to ascertain the true meaning of article 19 (1) (d) read with clause (5) of the same article.
There is no doubt that by the order of extern 523 ment the right of the petitioner to freedom of movement throughout the territory of India is abridged.
The only question is whether the limits of permissible legislation under clause (5) are exceeded.
That clause provides as follows: "19.
(5) Nothing in subclauses (d), (e) and (f) of the said clause shall affect the operation of any exist ing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.
" It is clear that the clause permits imposition of reasonable restrictions on the exercise of the right conferred by sub clause (d)in the interests of the general public.
The rest of the provision of clause (5) is not material and neither side relies on it.
Two interpretations of the clause are put before the Court.
It is argued that grammatically understood the only question before the Court is whether the impugned legislation imposes reasonable restrictions on the exercise of the right.
To put it in other words, the only justiciable issue to be decided by the Court is whether the restrictions imposed by the legislation on the exercise of the right are reasonable.
If those restrictions on the exercise of the right are reasonable, the Court has not to consider whether the law imposing the restrictions is rea sonable.
The other interpretation is that while the Consti tution permits a law laying down reasonable restrictions on the exercise of the rights mentioned in sub clause 19 (1) (d), the reasonableness has to be of the law also.
It is submitted that in deciding whether the restrictions, on the exercise of the right are reasonable, the Court has to decide not only on the extent and nature of the restric tions on the exercise of the right but also as to whether the conditions under which the right is restricted are reasonable.
The majority judgments of the Patna and the Bombay High Courts, although the impugned Acts of the State Legislatures before them were materially different on cer tain important points, have given clause (5) of article 19 the latter meaning.
524 In my opinion, clause (5) must be given its full mean ing.
The question which the Court has to consider is wheth er the restrictions put by the impugned legislation on the exercise of the right are reasonable or not.
The question whether the provisions of the Act provide reasonable safe guards against the abuse of the power given to the executive authority tO administer the law is not relevant for the true interpretation of the 'clause.
The Court, on either inter pretation, will be entitled to consider whether the re strictions on the right to move throughout India, i.e,, both as regards the territory and the duration, are reasonable or not.
The law providing reasonable restrictions on the exercise of the right conferred by article 19 may contain substantive provisions as well as procedural provisions.
While the reasonableness of the restrictions has to be considered with regard to the exercise of the right, it does not necessarily exclude from the consideration of the Court the question of reasonableness of the procedural part of the law.
It is obvious that if the law prescribes five years externment or ten years externment, the question whether such period of externment is reasonable, being the substan tive part, is necessarily for the consideration of the Court under clause (5).
Similarly, if the law provides the proce dure under which the exercise of the right may be restrict ed, the same is also for the consideration of the Court, as it has to determine if the exercise of the right has been reasonably restricted.
I do not think by this interpretation the scope and ambit of the word "reasonable" as applied to restrictions on the exercise of the right, is in any way unjustifiably enlarged.
it seems that the narrow construc tion sought to be put on the expression, to restrict the Court 's power to consider only the substantive law on the point, is not correct.
In my opinion this aspect of the construction of article 19 (5) has escaped the minority judgment in the two matters mentioned above.
I am not con cerned with the conclusions of the two Courts about the invalidity of the provisions of the Acts they were asked to consider.
To the extent they help in the interpretation of article 19 (5) only they are helpful.
525 The next question is whether the impugned Act contains reasonable restrictions on the exercise of the right given under article 19 (1)(d)or (e).
It was argued on behalf of the petitioner that under section 4 the power to make the order of externment was given to the Provincial Government or the District Magistrate, whose satisfaction was final.
That decision was not open to review by the Court.
On that ground it was contended that there was an unreasonable restriction on the exercise of the citizen 's right.
In my opinion, this argument is unsound.
This is not legislative delegation.
The desirability of passing an individual order of externment against a citizen has to be left to an offi cer.
In the Act such a provision cannot be made.
The satisfaction of the officer thus does not impose an unrea sonable restriction on the exercise of the citizen 's right.
So far as the Bombay High Court is concerned Chagla C.J. appears to have decided this point against the contention of the petitioner.
It was next urged that under section 4 (3) the order made by the District Magistrate shall not, unless the Pro vincial Government by special order otherwise direct, remain in force for more than three months.
It was argued that the period of three months itself was unreasonable as the ex ternee had no remedy during that time.
It was contended that when the Provincial Government directed the renewal of the order no limit of time was prescribed by the legislature for the duration of the order.
The order therefore can be in operation for an indefinite period.
This was argued to be an unreasonable restriction on the exercise of a citi zen 's right.
In this connection it may be pointed out that in respect of preventive detention, which is a more severe restriction on the right of the citizen, the Constitution itself under article 22 (4) to (7) permits preventive deten tion for three months without any remedy.
The period of three months therefore prima facie does not appear unreason able.
Under the proviso to section 4 (5) the Provincial Government is not permitted to direct the exclusion or removal from the Province of a person ordinarily residing in the Province, and similarly 526 the District Magistrate is not permitted to order the exclu sion or removal of a person ordinarily resident in his district from that district.
This is a great safeguard provided under the East Punjab Public Safety Act.
The further extension of the externment order beyond three months may be for an indefinite period, but in that connec tion the fact that the whole Act is to remain in force only up to the 14th August, 1951, cannot be overlooked.
More over, this whole argument is based on the assumption that the Provincial Government when making the order will not perform its duty and may abuse the provisions of the sec tion.
In my opinion, it is improper to start with such an assumption and decide the legality of an Act on that basis.
Abuse of the power given by a law sometimes occurs; but the validity of the law cannot be contested because of such an apprehension.
In my opinion, therefore, this contention of the petitioner cannot be accepted.
was next argued that there is no provision in the Act for furnishing grounds of externment to the citizen.
Section 4 (6) provides that when an externment order has been made its grounds may be communicated to the externee by the authority making the order and in any case when the order is to be enforced for more than three months he shall have a right of making a representation which shall be referred to the advisory tribunal constituted under section 3 (4).
While the word "may" ordinarily conveys the idea of a discretion and not compulsion, reading it with the last part of the clause it seems that when an externment order has to be enforced for more than three months an absolute right is given to the cxternee to make a representation.
He cannot make a representation unless he has been furnished grounds for the order.
In no other part of the Act a right to obtain the grouuds for the order in such a case is given to him.
Therefore, that right has to be read as given under the first part of section 4 (6).
That can be done only by reading the word "may" for that purpose as having the mean ing of "shall" If the word "may" has to be so read for that purpose, it appears to be against the well recognised canons of construction to 527 read the same "may" as having a different meaning when the order is to be in force for less than three months.
I do not think in putting the meaning of "shall" on "may" in the clause, I am unduly straining the language used in the clause.
So read this argument must fail.
It was next argued that there is no provision in the Act showing what the advisory board has to do when it receives a representation.
A reference to the advisory board neces sarily implies a consideration of the case by such board.
The absence of an express statement to that effect in the impugned Act does not invalidate the Act.
It was finally contended on behalf of the petitioner that the grounds for the externment order supplied to him are vague, insufficient and incomplete.
The grounds are stated as follows : "Your activities generally and particularly since the recent trouble in East and West Bengal have been of a communal nature tending to excite hatred between communities and whereas in the present composition of the population of Delhi and the recent communal disturbances of Delhi feelings are roused between the majority and minority communities, your presence and activities in Delhi are likely to prove prejudicial to the maintenance of law and order, it is considered necessary to order you to leave Delhi.
" These grounds cannot be described as vague, insufficient or incomplete.
It is expressly stated that the activities of the petitioner, who is the President of the Hindu Maha sabha, since the recent disturbances between two communities in the East and West Bengal have particularly been of a communal nature which excites hatred between the communi ties.
It is further stated that having regard to the recent disturbance in Delhi, the population of which is composed of both these communities, the excitement of such,hatred is likely to be dangerous to the peace and maintenance of law and order.
Apart from being vague, I think that these grounds are specific and if honestly be lieved can support the order.
The argument that the order 528 was served to stifle opposition to the Government policy of appeasement has little bearing because the District Magis trate of Delhi is not concerned with the policy of the Government of appeasement or otherwise.
The order is made because the activities of the petitioner are likely to prove prejudicial to the maintenance of law and order and the grounds specified have a direct bearing on that conclusion of the District Magistrate.
I therefore think that this contention of the petitioner must be rejected.
The result is that the petition fails and is dismissed.
FAZL ALI J.
I agree.
PATANJALI SASTRI J.
I agree that this application must fail.
As I share the views expressed by my Lord in.the judgment just delivered by him on the reasonableness of the restrictions imposed by the impugned legislation whichever construction of article 19 (5) of the Constitution is adopt ed, I consider it unnecessary to express any opinion on the true scope of the judicial review permitted under that article, and I hold myself free to deal with that point when it becomes necessary to do so.
MAHAJAN J. I concur in the judgment which my brother Mukh erjea is delivering and for the reasons given by him I allow the petition and quash the order of externment.
MUKHERJEA J. This is an application under article 32 of the Constitution, praying for quashing of an externment order made by the District Magistrate of Delhi, against the petitioner Dr. N.B. Khare, on 31st March, 1950, by which the latter was directed to remove himself immediately from the Delhi District and not to return to that District so long as the order remained in force.
The order is for three months at present.
Complaint was also made in the petition in respect of another and a subsequent order passed by the Government of Madhya Bharat which was served on the peti tioner on his way to Nagpur and which 529 directed him to reside within the limits of the Nagpur Municipality and not to leave that area without the permis sion of the District Magistrate of that place.
This order of the Government of Madhya Bharat, we are told, has since been withdrawn and we are not concerned with that order or the Act under which it was passed in the present proceeding.
The substantial contention raised on behalf of the petitioner is that the particular provision of the East Punjab Public Safety Act, 1949, under which the District Magistrate of Delhi purported to make the externment order, became void and ceased to be operative after the new Consti tution came into force, by reason of these provisions being inconsistent with the fundamental rights guaranteed under article 19 (1) (d) of the Constitution read with clause (5) of the same article.
The argument is that any order passed under such void legislative provisions must necessarily be void and of no effect in law.
In order to appreciate the merits of this contention, it may be convenient to advert to the material provisions of the East Punjab Public Safety Act which are alleged to have become void as well as to the articles of the Constitution, upon which reliance has been placed by the learned counsel for the petitioner.
The East Punjab Public Safety Act came into force on 29th March, 1949, and its object, as stated in the preamble, is to provide for special measures to ensure public safety and maintenance of public order.
Section 4 (1) of the Act provides: "The Provincial Government or the District Magistrate, if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudi cial to the public safety or the maintenance of public order it is necessary so to do, may, by order in writing, give anyone or more of the following directions, namely that such person . . . . . . . . . (c) shall remove himself from, and shall not return to, any area that may be specified in the order." , 530 Sub section (3) of the section lays down that "An order under sub section (1) made by the District Magistrate shall not, unless the Provincial Government by special order otherwise directs, remain in force for more than three months from the making thereof." The contention of the petitioner is that the restrictive provisions mentioned above, under which a person could be removed from a particular area or prohibited from returning to it are inconsistent with the fundamental right guaranteed by article 19 (1) (d) of the Constitution under which all citizens shall have the right "to move freely throughout the territory of India.
" This right indeed is not absolute and the extent to which it could be curtailed by legislation is laid down in clause.(5)of article 19 which runs as follows: "Nothing in sub clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe." Thus the primary question which requires consideration is, whether the impugned legislation which apparently seems to be in conflict with the fundamental right enunciated in article 19 (1) (d) of the Consitution is protected by clause (5) of the article, under which a law would be valid if it imposes reasonable restrictions on the exercise of the right in the interests of the general public.
It is not disputed that the question of reasonableness is a justiciable matter which has to be determined by the Court.
If the Courts 'hold the restrictions imposed by the law to be reasonable, the petitioner would certainly have no remedy.
If, on the other hand, they are held to be unreasonable, article 13 (1)of the Constitution imposes a duty upon the Court to pronounce the law to be invalid to the extent that it is inconsistent with the fundamental rights guaranteed under Part III of the Constitution.
531 It has been urged, though somewhat faintly, by the learned Attorney General that the right of free movement throughout the Indian territory as enunciated in article 19 (1) (d) of the Constitution contemplates nothing else but absence of inter State restrictions, which might prevent citizens of the Indian Union from moving from one State to another.
A law which does not impose barriers of this kind, it is said, cannot be inconsistent with the fundamental right secured by this clause.
Such a restricted interpreta tion is, in my opinion, not at all warranted by the language of the sub clause.
What article 19 (1) (d) of the Constitu tion guarantees is the free right of all citizens to go wherever they like in the Indian territory without any kind of restriction whatsoever.
They can move not merely from one State to another but from one place to another within the same State and what the Constitution lays stress upon is that the entire Indian territory is one unit so far as the citizens are concerned.
Clause (c) of section 4 (1) of the East Punjab Public Safety Act, 1949, authorises the Provin cial Government or the District Magistrate to direct any person to remove himself from any area and prohibit him from entering the same.
On the face of it such provision repre sents an interference with the.
fundamental right guaran teed by article 19 (1) (d) of the Constitution.
The contro versy, therefore, narrows down to this, whether the impugned legislation is saved by reason of its being within the permissible limits prescribed by clause (5) of article 19.
With regard to clause (5), the learned AttorneyGeneral points out at the outset that the word "reasonable" occur ring in the clause qualifies "restrictions" and not "law '".
It is argued that in applying the clause, all that we have to see is whether the restrictions that are imposed upon the exercise of the right by law are reasonable or not and we have not to enquire into the reasonableness or otherwise of the law itself.
The reasonableness of the restrictions can be judged, ' according to the learned Attorney General, from the nature of the restrictions themselves and not from the manner in which or the authorities by which they are 532 imposed.
The question whether the operation of the law produces hardship in individual cases is also a matter which is quite irrelevant to our enquiry.
I do agree that in clause (5) the adjective 'reasonable ' is predicated of the restrictions that are imposed by law and not of the law itself; but that does not mean that in deciding the reasonableness or otherwise of the restric tions, we have to confine ourselves to an examination of the restrictions in the abstract with reference merely to their duration or territorial extent, and that it is beyond our province to look up to the circumstances under which or the manner in which the restrictions have been imposed.
It is not possible to formulate an effective test which would enable us to pronounce any particular restriction to be reasonable or unreasonable per se.
All the attendant cir cumstances must be taken into consideration and one cannot dissociate the actual contents of the restrictions from the manner of their imposition or the mode of putting them into practice.
The question of reasonableness of the restric tions imposed by a law may arise as much from the substan tive part of the law as from its procedural portion.
Thus, although I agree with the learned Attorney General that the word "reasonable" in clause (5) of article 19 goes with "restrictions" and not with "law," I cannot accept his suggestion as regards the proper way of determining the reasonableness of the restrictions which a legislation might impose upon the exercise of the right of free movement.
Coming now to the provisions of the impugned Act, Mr. Baner jee 's main contention is that section 4 (1) (c)of the East Punjab Public Safety Act, which provides for passing of orders removing a person from a particular area, on the satisfaction of the Provincial Government or the District Magistrate, cannot be a reasonable piece of legislation inasmuch as the only pre requisite for imposition of the restrictions is the personal satisfaction of certain indi viduals or authorities, the propriety or reasonableness of which cannot be tested by the application of any external rule or standard.
It is said that any law which places the liberty 533 of a subject at the mercy of an executive officer, however high placed he might be and whose action cannot be reviewed by a judicial tribunal, is an arbitrary and not a reasonable exercise of legislative powers.
The contention requires careful examination.
It is not disputed that under clause (5) of article 19, the reasonableness of a challenged legislation has to be determined by a Court and the Court decides such matters by applying some objective standard which is said to be the standard of an average prudent man.
Judged by such standard which is sometimes described as an external yard stick, the vesting of authority in particular officers to take prompt action under emergent circumstances, entirely on their own responsibility or personal satisfaction, is not necessarily unreasonable.
One has to take into account the whole scheme of the legislation and the circumstances under which the restrictive orders could be made.
The object of the East Punjab Public Safety Act is to pro vide for special measures to ensure public safety and maintenance of public order.
Under section 4 (1) (c) of the Act, the Provincial Govern ment or the District Magistrate may make an order directing the removal of a certain person from a particular area, if they are satisfied that such order is necessary to prevent such person from acting in any way prejudicial to public safety or maintenance of public order.
Preventive orders by their very nature cannot be made after any judicial enquiry or trial.
If emergent steps have got to be taken to prevent apprehended acts which are likely to jeopardise the inter ests or safety of the public, somebody must be given the power of taking the initial steps on his own responsibility; and no reasonable objection could be taken if the authority, who is given the power, is also entrusted with the responsi bility of maintaining order and public peace in any particu lar district or province.
The preventive provisions of the Criminal Procedure Code are based on similar principle.
In my opinion, therefore, the provision of section 4 (1) (c) of the East Punjab Public Safety Act cannot be pronounced to be unreasonable, simply because the order could be passed by the Provincial Government 534 or the District Magistrate on their own personal satisfac tion and not on materials which satisfy certain objective tests.
But though certain authorities can be invested with powers to make the initial orders on their own satisfaction in cases of this description, the position would certainly be different if the order thus made is allowed to continue for any indefinite period of time without giving the ag grieved person an opportunity to say what he has got to say against the order.
I have already set out the provisions of sub section (3) of section 4 which deals with duration of the orders made under the various clauses of sub section (1).
It will be seen from this sub section that there is absolutely no limit as to the period of time during which an externment order would remain in force if the order is made by the Provincial Government.
The Provincial Government has been given unlimited authority in this respect and they can keep the order in force as long as they chose to do so.
As regards orders made by a District Magistrate, the period indeed has been fixed at three months, but even here the Provincial Government is competent to extend it to any length of time by means of a special order.
The law does not fix any maximum period beyond which the order cannot continue; and the fact that the Act itself would expire in August, 1951, is, in my opinion, not a relevant matter for consideration in this connection at all.
I have no hesi tation in holding that the provision of sub section (3) of section 4 is manifestly unreasonable and cannot be supported on any just ground.
One could understand that the exigen cies of circumstances might justify the vesting of plenary powers on certain authorities which could pass orders on their ' own personal satisfaction temporarily and for a short period of time; but if these orders are to continue indefi nitely, it is only fair that an opportunity should be given to the person against whom such order is made to say what he has to say in answer to the allegations made against him.
There may not be an investigation by a regular Court but it is necessary that the aggrieved person should be given a fair hearing and that by an 535 impartial tribunal.
The provision of the impugned Act which has bearing on this point is contained in sub section (6) of section 4 and it runs as follows: "When an order has been made in respect of any person under any of the clauses under section 4, sub section (1), or sub section (2) the grounds of it may be communicated to him by the authority making the order and in any case, when the order is to be in force for more than three months, he shall have a right of making a representation which shall be referred to the Advisory Tribunal, constituted under section 3, sub section (4).
" It will be noted that the first part of the subsection makes it entirely optional with the authorities to communi cate the grounds, upon which the order is made, to the person affected by it.
The grounds need not be communicated at all if the authorities so desire.
As regards the right of representation the latter part of the sub section seems to imply that when the order is to remain in force for more than three months, the right of representation should be given to the aggrieved person and the representation shall be referred for consideration to the advisory tribunal constituted under section 3, sub section (4), of the Act.
The right, however, is purely illusory as would appear from the fact that even in cases where the order is to be opera tive for more than three months, there is no obligation on the part of the authorities to communicate to the person the grounds upon which the order was made.
The aggrieved person consequently may not at all be apprised of the allegations made against him and it will be impossible for him to make any adequate or proper representation, if he is not told on what grounds the order was passed.
In my opinion, this is an equally unreasonable provision and neither sub section (3) nor sub section (6) of section 4 of the Act can be said to have imposed restrictions which are reasonable in the inter ests of the general public.
My conclusion, therefore, is that under article 13 (1) of the Indian Constitution, these provisions of the Act became void and inoperative after the Constitution came into 536 force, and consequently the order made by the District Magistrate in the present case cannot stand.
I would, therefore, allow the application and quash the externment order that has been passed against the petition er.
Petition dismissed.
Agent for the petitioner: Ganpat Rai.
Agent for the opposite party: P.A. Mehta.

Output:
Section 4, sub section
(1) (c), of the East Punjab Public Safety Act of 1949 which was passed on the 29th March, 1949, and was to be in force until the 14th August, 1951, provided that "The Provincial Government or the District Magistrate, if satisfied with respect to any particular person that with view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order it is necessary to do so, may, by order in writing, give a direction that such person shall remove himself from, and shall not return to, any area that may be specified in the order.
" Sub section (3) of section 4 provided that "an order under sub section
(1) made by the District Magistrate shall not, unless the Provincial Goverment by special order otherwise directs, remain in force for more than three months from the making thereof," and sub section
(6) laid down that "when an order has been made in respect of any person under any of the clauses under section 4, sub section
(1) or sub section
(9.), the grounds of it may be communicated to him by the authority making the order, and in any case when the order is to be in force for more then three months, he shall have a right of making a representation which shall be referred to the Advisory Tribunal constituted under section 3, sub section
" The petitioner, against whom an order under (1) (c) of the Act was passed applied to the Court under article 39, of the Constitution for a writ of certiorari contending that the order was illegal inasmuch as the provisions of the above mentioned Act under which the order was made infringed the fundamental right to move freely throughout the territo ry of India which was guaranteed by article 19 (1) (d) of the Constitution and were accordingly void under article 13 (1) of the Constitution: Held, per KANIA C.J., FAZL ALl and PATANJALI SASTRI, J3.
(MAHAJAN and MUKHERJEA, JJ.
dissenting) (i) that there was nothing unreasonable in the provision contained in sub section
(1) (c) empowering the Provincial Government or the Dis trict Magistrate to make an externment order, and making their satisfaction as to the necessity of making such an order final, or in the provisions contained in sub section
(3) of section 4 that an order of a District Magistrate may remain in force for three months and that the Provincial Government may make an order, or keep alive an order made by a District Magistrate, for a period exceeding three months without fixing any time limit; (ii) with regard to sub section
(6), the word "may" in the expression "may communicate" must, in the context, be read as meaning "shall" and under the sub sec tion it is obligatory on the authority making an order to communicate the grounds to the externee;.(iii) the restric tions imposed by the above mentioned provisions of the Act upon the fundamental right guaranteed by article (19) (1) (d) were not, therefore, unreasonable restrictions within the meaning 01 article 19 (5) and the provisions of the Act were not void under article 13 (1), and the order of externment was not illegal.
Per MUKHERJEA J. (MAHAJAN J. concurring) Though certain authorities can be invested with power to make 521 initial orders on their own satisfaction in cases of this description, and section 4 (1) (c) of the East punjab Public Safety Act cannot be pronounced to be unreasonable simply because an order I could be passed by the Provincial Gov ernment or the District Magistrate on their own personal satisfaction and not on materials, which satisfy certain objective tests, yet, the position would be different if the order thus made is allowed to continue for any indefinite period of time without giving the aggrieved person an oppor tunity to say what he has got to say against the order; and inasmuch as sub section
(3) of section 4 prescribes no limit to the period of time during which an externment order would remain in force if it is made by the Provincial Government, and the Provincial Government is also given power to keep an order made by a District Magistrate in force for an indefinite period, the provisions of sub section
(3) are manifestly unrea sonable.
The provisions of sub section
(6)of section 4 are also unreasonable as they make it entirely optional with the authorities to communicate to the person affected, the grounds upon which the order is made.
Neither sub section
(3) nor sub section
(6) of section 4 can, therefore, be said to have imposed restrictions which are reasonable in the interests of the general public within the meaning of article 19 (5) and these provisions of the Act were consequently void and inoperative under article 13 (1)of the Constitution, and the externment order was illegal.
Held also, per KANIA C.J., FAZL ALI, MAHAJAN and MUKH ERJEA JJ.
Whether the restrictions imposed by a legislative enactment upon the fundamental right guaranteed by article 19 (1) (d) are reasonable within the meaning of article 19 (5) of the Constitution would depend as much on the procedural portion of the law as the substantive part of it] and in considering whether such restrictions are reasonable the Court is not therefore bound to confine itself to an exami nation of the reasonableness of the restrictions in the abstract with reference to their duration and territorial extent.
The Court can also consider the reasonableness of the procedural part of the law and the circumstances under which, and the manner in which, the restrictions have been imposed.
[PATANJALI SASLUP, I J. did not express any opin ion on this point.]


Input:
ivil Appeal No. 149 of 1965.
Appeal by special leave from the judgment and order dated May 10, 1963 of the Punjab High Court (Circuit Bench) in S.A.O. No. 40 D of 1963.
C.B. Agarwala, B.R.L. lyengar, P.N. Chaddha, S.K. Mehta and K.L. Mehta, for the appellant.
S.T. Desai and Gopal Singh for Harbans Singh, for respon dents Nos. 1 & 2.
Gurcharan Singh and Gopal Singh for Harbans Singh, for respondents Nos.
3 to 5. 831 Sarkar and Bachawat, JJ.
delivered separate but concurring judgments.
Mudholkar, J. delivered a dissenting Opinion.
Sarkar, J.
The respondents are the owners of certain premises in Connaught Circus in New Delhi, which were let out to Allen Berry & Co. (Calcutta) Ltd. Sometime in 1959 Allen Berry & Co. transferred the lease to the appellant and put the latter in possession.
Alleging that the transfer had been made without their consent, the respondents made an application under el.
(b) of the proviso to sub section
(1) of section 14 of the Delhi Rent Control Act, 1958 to the Controller appointed under it against Allen Berry & Co. and the appellant for an order for recovery of possession of the premises from them.
While the application was pending, Allen Berry & Co. went into liquidation and was in due course dissolved and its name was, thereupon, struck off from the records of the proceedings.
The Controller later heard the application and made an order in favour of the respondents for recovery of possession of the premises from the appellant alone.
An appeal by the appellant to the Rent Control Tribunal under the Act against this order was dismissed.
The appellant then moved the High Court of Punjab for setting aside the order of the Tribunal, but there also it was unsuccessful.
It has now come to this Court in further appeal.
It was contended that the order for recovery of possession made against the appellant after Allen Berry & Co. had ceased to be a party to the proceedings, was incompetent.
This contention was based on an interpretation of the terms of sub section
(1) of section 14, the material part of which is set out below: section 14 (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant: Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely: (a) . . (b) that the tenant has, on or after the 9th day of June, 1952, sub let, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord; The contention of the appellant was put in this way: The first part of sub section
(1) of section 14 puts a complete ban on recovery of possession from all tenants.
The proviso to it is only an excepting clause and it lifts that ban in the circumstances mentioned in it.
It follows that the proviso.
though it does not expressly mention 832 tenants, permits orders for recovery of possession against them alone.
The tenant in cl.
(b) of the proviso means only the tenant sought to be evicted under the proviso, such tenant having also to be by the express terms of the clause, a tenant who has assigned his tenancy.
This follows from the use of the article "the" before the word "tenant" there.
Therefore the only person against whom an order for recovery of possession can be made under cl.
(b) of the proviso to sub section
(1) of section 14 is the tenant who has assigned his tenancy.
No such order can, hence, be made against the person to whom the tenancy has been assigned.
As the appellant was such a person, no order for eviction could be made against it.
I wish to observe at once that if this contention is correct which 1 do not think it is then the order could never be made against the appellant and the fact that Allen Berry & Co. ceased to be a party to the proceedings made no difference in this regard.
The argument of the appellant is really based on the article "the" prefixed to the word "tenant" in cl.
(b) of the proviso.
It is paid that the article clearly indicates that the only person against whom an order for ejectment can be made under cl.
(b) is the tenant who assigns or sub lets or parts with possession of the tenancy without the landlord 's consent.
I am unable to accept this argument.
The proviso expressly states that an order for ejectment can be made "on one or more of the following grounds" and then sets the grounds out in the different clauses that follow, one of which is cl.
(b) with which we are concerned.
The clauses, therefore, set out the circumstances in which the operative part of the proviso is set in motion, that is, the circumstances in which an order for recovery of possession may be made.
If this is so, as I think it is, the clauses could not have been intended to indicate the person against whom an order for recovery of possession could be made.
This purpose was entirely different.
1 am not suggesting that an order for recovery of possession against the assigning tenant cannot be made.
All that I say is that the clauses do not intend to indicate the persons against whom an order for recovery of possession can be made and so it cannot be argued that the order cannot be made against any other person.
Now the article "the" appears to me to have been used to show that the tenant assigning must be the tenant of the landlord seeking eviction.
So read, the effect of the proviso in cl.
(b) is that a landlord can recover possession if his tenant has assigned.
sub let or transferred possession without his consent.
This would be the natural reading of the provision and would carry out the intention of the Act.
If this is not the correct reading of the provision, the situation would be anomalous.
As the word "tenant" includes by virtue of its definition in section 2(1), a sub tenant.
it would at least be arguable that el.
(b) authorised a superior landlord to recover possession when the sub tenant assigned without his consent.
That could not possibly have been intended for 833 the intermediate tenant would then have lost his tenancy for no fault of his.
Therefore, 1 think the article "the" was used only to emphasize that the tenant assigning must be the tenant of the landlord seeking eviction.
The article "the" does not, in my opinion, lead inevitably to the conclusion that the only person against whom an order for recovery of possession can be made on the ground mentioned in el.
(b) is the tenant assigning or sub letting or parting with possession of his tenancy without the landlord 's consent.
I think there are good reasons why it must be held that the Act contemplated orders for recovery of possession also against persons other than a tenant who has assigned or sub let without the landlord 's consent.
The offending tenant must of course go for, as I have said, he is the immediate tenant of the landlord desiring to recover possession and if he remains he would be entitled to possession and the landlord cannot recover possession.
But this does not mean that the order may not also direct the removal from possession of others along with the immediate tenant when there is one.
The reason for this view I will presently state.
If I am right in what I have said, it will follow that in a case like the present where the tenant becomes extinct without leaving any successor on whom the tenancy devolves, an order can be made against a person who took an assignment of the lease from the tenant before it became extinct.
It is trite saying that the object of interpreting a statute is to ascertain the intention of the legislature enacting it.
When I enquire about the intention behind this statute, 1 find that far from lending any support to the appellant 's contention it tends quite the other way.
First, I observe that the object of the first part of sub section
(1) of section 14 is to ban all recovery of possession of tenanted premises by a landlord and that of the proviso is to lift that ban in specified cases.
The object of the proviso is then to enable the landlord to recover possession in any of the specified cases.
Assume that the present is a case where the landlord became entitled to recover possession under cl.
(b) of the proviso; clearly then the statute intended the landlord to recover possession.
It would be our duty to give effect to that intention unless the language used made it plainly impossible.
I have earlier said that the language used does not compel the view that the only person against whom an order for recovery of possession can be made is the tenant assigning or sub letting without the landlord 's consent.
That being so, orders against all "persons in occupation" must have been contemplated so that the landlord might without further trouble recover possession.
Further find it impossible to hold that the language used indicates an intention that when a right has accrued to a landlord to recover possession, that right would be taken away from him when the tenant assigning has become extinct without leaving a successor, an event which is only accidental and certainly rare.
A court would be fully justified in holding that in such a case it was 834 intended that an order for recovery of possession can be made against the assignee alone for that would enable the object of the statute which was to enable the landlord to recover possession, to be achieved.
An interpretation which defeats the object of a statute is, of course, not permissible.
Then, looking at section 18 of the Act I find that it clearly contemplates an order for recovery of possession under section 14 against a sub tenant.
It says, "Where an order for eviction in respect of any premises is made under section 14 against a tenant but not against a sub tenant referred to in section 17", then in the circumstances mentioned, the sub tenant shall be deemed to become a direct tenant under the landlord.
This section plainly implies that an order for recovery of possession against a sub tenant is contemplated by cl.
(b) of the proviso to sub section
(1) of section 14.
The appellant 's argument to the contrary cannot be sustained against the clear implication of the Act.
If section 14 contemplates an eviction order against a sub tenant, it must equally contemplate such an order against assignees of tenants, for the section makes no distinction between sub tenants and assignees for the purpose of making such orders.
I am not unmindful of the fact that where an order for recovery of possession of any premises is made under section 14 against a tenant assigning or sub letting without the landlord 's consent, that order would under section 25 of the Act be binding on all persons in occupation of the premises except those who leave independent title to them.
This section does not however say that an order for recovery of possession against an assignee of a lessee cannot be made.
It would not, therefore, support an argument that an order for recovery of possession could be made under section 14 against an assignee or a sub tenant.
On the other hand, it seems to me that to an application under cl.
(b) of the proviso to sub section
(1) of section 14 an assignee or sub tenant, as the case may be, should be a proper party.
Under this provision an ejectment order can be made only when the assignment or sub letting was without the consent of the landlord.
If it was with such consent, the assignee or the sub tenant would be protected by the Act.
An assignee or a sub tenant is, therefore, interested in showing that there was the requisite consent.
They should hence be entitled to be made parties to the proceedings.
Otherwise, if under section 25 an eviction order obtained against the direct tenant is binding on them, they would be liable to be condemned without a hearing.
It is no argument against this view that the direct tenant would protect them, for they cannot be made to depend on him for the protection of their rights.
The direct tenant may be negligent or incompetent in his defence; he may even collude with the landlord or he may just not bother.
If the assignee or the sub tenant is thus entitled to be heard to oppose the order for eviction, that would be another reason for saying that an order eviction could be made against them also; if they could oppose the 835 making of the order, it would be unnatural to say that the order could not be made against them.
In what 1 have said in this paragraph, I do not wish to be understood as holding that in view of ' section 25 an order for eviction against a tenant is in fact binding on his assignee or sub tenant.
Such a decision is not necessary for this case.
I wish, however, to point out that if section 25 does not make the ejectment order so binding, the appellant cannot resort to it for any assistance.
I have now dealt with the first argument in support of the appeal and I find it unacceptable.
The other argument was that the order for recovery of possession was unwarranted as in fact there had been a consent of the respondents to the assignment in favour of the appellant.
It is said that the consent was given by a clause in the lease under which Allen Berry & Co. held which reads as follows: "That whenever such an interpretation would be necessary in order to give the fullest scope and effect legally ' possible to any covenant or contract herein contained, the expression "The Lessor" hereinbefore used shall include his heirs, executors, administrators and assigns.
and the expression "THE LESSEE" hereinbefore used ' shall include their representatives and assigns.
" I am unable to accept this contention also.
I notice that the lease gave no express right to the lessee to assign with or without the consent of the lessor.
The lessee no doubt had that right under the Transfer of Property Act.
It may be that under the clause the lessee 's assignee would be included in the expression "lessee" as used in the lease; that is the entire effect of the clause.
But this would be so whether the lessor had consented to the assignment or not.
Therefore, this clause does not lead to the conclusion that the lessor had consented to the assignment.
It is of no assistance in the present case.
I am also ' inclined to the view that the consent contemplated by section 14(1): proviso (b) is a direct consent to a contemplated assignment to a particular assignee: see Regional Properties, Ltd. vs Frankenschwerth(1).
Clearly the clause in the case relied upon could not be a consent of this kind.
This point, therefore, also fails.
For these reasons I would dismiss the appeal with costs.
Mudholkar, J.
In this appeal by certificate granted by the Pun jab High Court an unusual question arises for consideration.
That question is whether an application made under section 14(1)(b) of the Delhi Rent Control Act, 1958 by a landlord of a building in Delhi against a tenant who happens to be a company incorporated under the Indian Companies Act, cannot be proceeded with and granted ' on the ground that before the making of any order thereon by the ' (1) 836 Rent Controller the Company is dissolved and is struck off the record of the case.
According to the appellant who claims to be an assignee from the original tenant, that is, the Company, such an application cannot be proceeded with and granted while according to the respondent landlord the fact that the company is dissolved makes no difference.
The facts which are not in dispute and which have been stated in the judgment of Bachawat J. need not be recapitulated because what I have already said is sufficient to enable me to deal with the point.
The relevant part of section 14(1) reads thus: "Notwithstanding anything to the contrary contained in any other law or contract no order or decree for the recovery of possession of any premises shall be made by any Court or Controller in favour of the landlord against a tenant: Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely: (b) that the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord; It is not necessary to refer to cl.
(a) or to the several clauses following el.
(b) in this sub section or to any of the sub sections of section 14.
Looking at sub section
(1) what we find is that it enacts a bar to the making of an order or decree for the recovery of possession of any premises by any court or the controller against a tenant.
In other words the jurisdiction of a civil court or even of the Rent Controller to make an order of eviction against the tenant is taken away.
The proviso, however, lifts the ban against eviction in certain circumstances one of which is that set out in el.
What is important to bear in mind is that sub section
(1) is intended to protect the possession of the tenant.
A proviso to a section or a sub section is subservient to the main provision.
It would, therefore, follow that the ban against the eviction is lifted only with respect to the possession of the tenant and not of any other person.
In so far as persons other than the tenant who may be in possession of the premises which pertain to the tenancy is concerned, the matter is dealt with by section 25 and we can leave that out at any rate for the present.
Another thing to be noticed about section 14 is that 837 though under section 2(1)(b) of the Act the word "tenant" includes several other persons in addition to the one with whom there was a contract that expression must be regarded as relating to the same individual in the entire section or at least in sub section
(1) of section 14 wherever it occurs.
Thus, if in the first part of sub section
(1) of section 14 "tenant" is regarded as meaning as "assignee" of the tenant then it would have to be given the same meaning in cl.
(b) of sub section
(1) of section 14.
That is to say that if there is a sub letting or a further assignment or any other kind of parting with possession by an assignee of the original tenant (the assignment by the original tenant having been accepted or acquiesed in by the landlord) such assignee can be evicted by the landlord if the action of the assignee of the kind mentioned was taken by him without his written consent.
Now, since sub section
(1) is a bar to the jurisdiction of the Rent Controller to make an order or decree for recovery of possession against a tenant it must necessarily follow that the tenant must be a party to a proceeding before him right up to the date of the making of the decree or order.
Thus, if the tenant dies during the pendency of the proceedings and his legal representative is not substituted on the record in his place, the proceeding will abate against him and the Rent Controller will have no jurisdiction to make an order in favour of the landlord.
That is to say, the proviso will not be available to the landlord no matter what the tenant had done if the records of the proceeding became defective because neither the tenant nor his legal representative was any longer a party to those proceedings.
The reason for this is that the ground upon which the landlord 's application is based can be availed of for lifting the ban on the eviction by the Rent Controller of the tenant alone.
Unless an order is obtained against the tenant there would be no occasion for pressing in aid the provisions of section 25 of the Act.
Where during the pendency of the proceedings before the Rent Controller the tenant dies or makes an assignment of whatever interest he may still have left in the demised premises no difficulty would arise because his legal representative or assignee could be brought on record in his place.
But, it must be admitted, that an anomalous position results where the tenant happening to be a company is dissolved during the pendency of the proceedings and can, therefore, be not represented by any person.
The Act does not contemplate this position nor even does the Code of Civil Procedure and so we have it that the defect in the record resulting from the dissolution of a company cannot be removed at all.
The result, however, of this is that the jurisdiction of the Controller to proceed with the application of the landlord and therefore to make eventually an order or decree entitling the landlord to recover possession from the tenant ceases to be exercisable.
Apparently this curious position arises because of a lacuna in the law.
Such a lacuna cannot be removed by the Courts without assuming the power to legislate which obviously is beyond the 839 competence of any court.
The duty of courts is merely to administer the law as they find it.
The only way for remedying the defect is for the legislature to step in and amend the law.
The result of what has happened in this case is that the right which the landlord possessed to evict the now defunct company from the premises through the intervention of the Rent Controller because the company had assigned the demised premises to an.
other without his consent can no longer be availed of by him.
The assignee, who is the appellant before us, can therefore continue to be in possession of the premises even though he may have been liable to be evicted with the aid of section 25 had the company not been dissolved in the meanwhile.
Whether the landlord has now a right under the general law to evict the appellant is not a matter upon which I would express an opinion because it does not strictly arise at this stage.
For these reasons I would allow the appeal, set aside the orders of the courts below and dismiss the application of the respondent landlord under section 14(1)(b) of the Act.
In the particular circumstances of the case I would direct that costs throughout shall be borne by the parties as incurred.
Bachawat, J. Originally one Amar Sarup owned the land and building at plot No. 5, Block 'M ', Connaught Circus, New Delhi.
By a lease dated March 1, 1956, Amar Sarup leased the property to Allen Berry & Co. (Calcutta) Ltd., (hereinafter referred to as the tenant) for a period of five years on a monthly rent of Rs. 297/ .
Sometime thereafter, Amar Sarup transferred the property to the respondents.
In or about May, 1959, the tenant assigned the tenancy rights.
and parted with possession of the whole of the premises to the appellant.
On October 6, 1959, the respondents filed an application before the Rent Controller, Delhi praying for eviction of the tenant and the appellant.
The tenant, a limited company, had gone into voluntary liquidation on September 26, 1959 and it was finally wound up and dissolved on October 29, 1960.
On its dissolution, the tenant ceased to exist, and by order of the Rent Controller, its name was struck off from the array of parties in the pending application.
By an order dated October 10, 1962, the Rent Controller passed an order of eviction against the appellant.
An appeal by the appellant to the Rent Control Tribunal, Delhi was dismissed on January 23, 1963, and a second appeal to the Punjab High Court was dismissed on May 10, 1963.
A Letters Patent Appeal from the order dated May 10, 1963 was dismissed on December 11, 1963 on the ground that the appeal was not maintainable, and an appeal to this Court from the last order was dismissed on January 18, 1965.
The appellant has now preferred this appeal from the order dated May 10, 1963 by special leave granted by this Court.
The respondents landlords instituted the proceeding for eviction of the tenant and its assignee relying on the provisions of section 14(1) of the Delhi Rent Control Act, 1958 (Act 59 of 1958), the relevant portion of which is as follows: "14(1).
Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant: Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds, namely: (b) that the tenant has, on or after the 9th day of June, 1962 sub let, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord;" The case of the landlords is that "the tenant has . assigned. the whole of the premises without obtaining the consent in writing of the landlord", and, therefore, the Controller had jurisdiction to make an order for possession.
The tenant is forbidden by section 16(3)(b) of the Act to make the assignment, for contravention of section 16(3)(b) he is punishable with fine under section 48(2), and the assignment is a ground for eviction under section 14(1), proviso, paragraph (b), and so, the landlords submit that the Controller had jurisdiction to make the order for possession against the tenant and its assignee, and on the dissolution of the tenant, against the assignee alone.
Counsel for the appellant contended that the Controller had no jurisdiction to make the order for possession in the absence of the original tenant.
I cannot accept this submission.
Both the tenant and the assignee were properly parties to the proceedings for possession, and if the tenant company had not been dissolved, the Controller would have been competent to make the order for possession.
The tenant has since been dissolved and ceased to exist, no one can be substituted in its place, and 1 do not see why the proceedings cannot now continue against the assignee alone.
Paragraph (b) of the proviso to section 14(1) evidently contemplates proceedings for possession against both the tenant and the assignee, who as a result of the assignment has been put in possession of the premises.
Counsel for the appellant made the alternative submission that paragraph (b) contemplates an assignment by the tenant against whom the order for eviction is made, and as the appellant was the assignee and not the assignor, there was no ground for its eviction under paragraph (b).
It is true that other paragraphs of the proviso contemplate the eviction of the tenant on the ground of some act on the part of the tenant against whom 840 the proceeding for possession is brought, but under paragraph (b), the assignment is a ground of eviction of both the assigning tenant and the assignee, and in the event of an assignment without the consent in writing of the landlord, the Controller has jurisdiction to make an order for possession not only against the assigning tenant but also against the assignee.
Counsel for the appellant next referred us to cl. 7 of the lease, which is in these terms: "That, whenever such an interpretation would be necessary in order to give the fullest scope and effect legally possible to any covenant or contract herein contained, the expression 'The Lessor ' hereinbefore used shall include his heirs, executors, administrators and assigns and the expression 'The Lessee ' hereinbefore used shall include their representatives and assigns.
" Counsel for the appellant submitted that by cl. 7 of the lease, the landlords have given their consent in writing to the assignment.
I cannot accept this submission.
The consent in writing within the meaning of paragraph (b) of the proviso to section 14(1) may be either general or special, but no such consent was given by cl. 7.
The effect of cl. 7 is that the assignee of the lease enjoys the benefits and is subject to the burden of the covenants in the lease, but the clause does not amount to a consent by the landlord to an assignment either expressly or by necessary implication.
The assignment to the appellant was without the consent in writing of the respondents.
The Controller rightly passed the order for possession of the premises.
Counsel for the appellant contended that the contractual term of the lease not having expired on October 6, 1959.
the proceeding before the Controller was not maintainable.
We indicated in the course of the argument that this contention not having been raised in the Courts below, we are not inclined to allow the appellant to raise it here for the first time.
In the result, the appeal is dismissed with costs.
ORDER In accordance with the opinion of the majority, the appeal is dismissed with costs.
The appellant will have a month 's time from today to vacate the premises.

Output:
The respondents were the owners of certain premises in New Delhi.
The lessee a company of these premises assigned the lease to the appellant.
Alleging that the transfer was done without their consent, the respondents filed an application against the lessee and the appellant under section 14(1) proviso (b) of the Delhi Rent Control Act, 1958, for recovery of possession.
Pending the proceedings, the lessee went into liquidation and its name was struck off from the record.
The Controller thereafter, passed an order in favour of the respondents.
Having moved unsuccessfully the Rent Control Tribunal and the High Court, the appellant, appealed to the Supreme Court contending that: (i) the order made against the appellant, after the lessee ceased to be a party, was incompetent, as the only person against whom an order for recovery of possession can be made under the clause, is the tenant who assigned the tenancy, and (ii) the clause in the lease by which the term "lessee" included the lessee 's assignee operated as a consent by the respondents, to assign.
HELD: (i) (Per Sarkar, J.).
The Act contemplates orders for recovery of possession also against persons other than a tenant who has assigned or sub let without the landlord 's consent, so that, where the tenant becomes extinct without leaving any successor, an order can be made against a person who took an assignment of the lease from the tenant before the lease became extinct.
[833C, D E] The proviso expressly states when an order of ejectment can be made and the clauses of the proviso are not intended to indicate the persons against whom an order for recovery of possession could be made, but only the circumstances in which an order for recovery of possession may be made.
[832E G] The expression "the tenant" in cl.
(b) is used only to emphasise that the tenant assigning must be the tenant of the landord seeking eviction.
So read, the effect of the clause is that a land lord can recover possession if his tenant assigns or sub lets without his consent.
[832H, 833A B] Since the object of the proviso is to enable the landlord to recover possession in the specified cases, orders against all "persons in occupation" must have been contemplated so that the landlord might without further trouble recover possession.
Section 18 plainly implies that an order for recovery of possession against a sub tenant is contemplated by the proviso.
Further.
the order for recovery of possession would, under section 25, be binding on the assignee or sub tenant, and therefore, they would be interested in showing that there was the requisite consent, and hence would be entitled to be made parties to the proceedings.
If they are thus entitled to be heard to oppose the order of eviction, such an order could be made against them also.
[833F G, H; 834C, E, H 835A] 830 Per Bachawat J.(i): Both the tenant and the assignee were properly parties to the proceedings for possession and if the tenant company had been dissolved, there is no reason why the proceedings could not continue against the assignee alone.
[839G] It is true that other clauses of the proviso contemplate eviction of the tenant on the ground of some act on the part of the tenant against whom the proceeding for possession is brought, but under cl.
(b), the assignment is a ground of eviction of both the assigning tenant and the assignee and the Controller has jurisdiction to make an order for possession not only against the assigning tenant but also against the assignee.
[839H 840B] Per Mudholkar J. (Dissenting) The right which the respondents possessed to evict the defunct company from the premises, because the company had assigned the tenancy to the appellant without the respondents ' consent could not be availed of by them, and the appellant could therefore continue in possession.
[838B C] The ban against eviction of a tenant in section 14(1) is lifted by the proviso only with respect to the tenant and not to any other person, because, a proviso is subservient to the main provision.
Therefore, the tenant must be a party to the proceeding right up to the date of making of the order of eviction.
Unless an order is obtained against the tenant there would be no occasion for pressing in aid section 25.
Unlike the case of death of or assignment by, a tenant, an anomalous position results where the tenant happening to be a company is dissolved during the pendency of proceedings and cannot be represented by any one, because of a lacuna in the law: But such lacuna cannot be removed by the Courts without assuming a power to legislate.
[836H, 837F H] (ii) Per Sarkar J.: The clause in the lease according to which "the lessee" includes his assignee, does not lead to the conclusion that the lessor consented to the assignment.
Besides, the consent contemplated by the proviso is a direct consent to a contemplated assignment to a particular assignee.
[835F G] Regional Properties Ltd. vs Frankenchwerth, , applied.
Per Bachawat J: The consent contemplated by cl.
(b) may be either general or special, but the clause in the lease would not amount to a consent by the landlord to an assignment either expressly or by necessary implication.
[840D E]